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Independence of Lawyers: The Role of Justice Bureaus and Lawyers’ Associations

China’s more than 250,000 lawyers do not yet benefit from many of the fundamental protections outlined in the UN Basic Principles for Lawyers. Moreover, the growing body of rights defense lawyers and their increasingly sophisticated and diverse legal activism has triggered heightened interference from authorities, both legal and extralegal.

Lawyers taking on politically sensitive cases—for instance, defending land rights, calling for government transparency, or advocating for free speech or freedom of religion—report routine obstruction from representing clients. For example, problematic provisions in the Criminal Procedure Law give public security and detention personnel discretionary authority to bar defense lawyers from meeting clients in a wide range of cases. Lawyers also often report obstacles including difficulties in obtaining access to files and evidence, as well as procedural delays. Vague and overbroad criminal provisions are further used to punish lawyers for taking on sensitive cases or clients. This substantial personal risk creates a chilling effect on lawyers’ choice of clients and representation strategies.

The Ministry of Justice and the local judicial bureaus also act as a source of pressure against rights defense lawyers. Under Chinese laws and regulations, lawyers and law firms must maintain professional licenses, subject to annual inspection and renewal through local bureaus and the Ministry. These requirements can be used as powerful means of control by the authorities. In fact, rights defense lawyers have accused judicial bureaus of using vague disciplinary provisions for politically motivated suspension or revocation of their licenses.

Of greater concern is the mandatory annual inspection and renewal, which provides the bureaus an expedient way to interfere with a lawyer’s ability to practice without the procedural requirements of formal suspension or revocation. Because the inspection and renewal process is conducted through law firms, in addition to directly pressuring individual lawyers, judicial bureaus can also exert indirect pressure through employers. Many rights defense lawyers have reported both forms of pressure, often culminating in the refusal to renew or sometimes even revocation of their licenses.

In addition to maintaining a license to practice, all lawyers in China are required to register with the All China’s Lawyers’ Association (ACLA), or its municipal and local counterparts. Established in 1986, the ACLA is designated as the sole national bar and operates under the direct supervision of the Ministry of Justice. Though the lawyers’ associations provide critical coordinating, training, and standard setting services, oversight by a political body creates a conflict in defending the rights of lawyers working on politically sensitive issues. As a result, rights defense lawyers have routinely documented instances where lawyers’ associations fail to protect their rights, and are increasingly complicit in pressuring and obstructing the proper function of lawyers.

One recent development highlights this trend. On March 19, 2014, the Beijing Bar Association issued a guideline including provisions prohibiting lawyers from publishing their defense arguments and other legal documents related to a case before a court announces a verdict. The intended effects of this guideline have been questioned, especially in light of the growing use of trial materials and statements to highlight procedural violations and politicized trials by lawyers, as can be seen in the ongoing New Citizens Movement trials.

錯誤 | Human Rights in China 中国人权 | HRIC

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