Jerome A. Cohen
In August 2008, a group of 35 lawyers in Beijing stunned China’s legal community by issuing an online appeal that called for direct elections for the state-controlled Beijing Lawyers Association. Their appeal invited the wrath of the authorities, which pressured firms to dismiss their lawyers, and ordered a six-month shutdown of a law firm. Jerome Cohen, one of the foremost American experts on Chinese law, tells the story of this dramatic battle that is not likely to end soon.
Shortly after China’s new Lawyers Law [律师法]1 went into effect on June 1, 2008, a small group of public interest lawyers launched a campaign to democratize the Beijing Lawyers Association (“BLA”). In China, as in other communist countries, lawyers are controlled by the Ministry of Justice (“MOJ”) and its provincial and local judicial bureaus. These government agencies not only control lawyers directly, but also indirectly via a national lawyers association and its provincial and local counterparts, to which all licensed lawyers must belong. Although ostensibly “self-regulating,” the lawyers associations are in fact led, and often staffed, by judicial bureau officials who guide the “election” of lawyers they deem suitable to govern each association. The Communist Party, of course, presides over the entire process, through its leadership of central government agencies, such as the MOJ, at the top, and through its Party organizations within every level, including each lawyers association.
The small group of Beijing public interest lawyers (the “Group”) sought to break the MOJ’s grip over the BLA. It proposed to end arrangements whereby the BLA’s incumbent board of directors “elected” all lawyers’ representatives for the next term of the BLA congress and the congress in turn “elected” the BLA’s incoming president, directors, and supervisors. Instead, the Group advocated holding free elections in each municipal district so that individual lawyers themselves could not only vote for candidates of their choice to serve as their district’s representatives to the BLA congress, but also vote directly for the BLA’s president, vice president, and chairman of the board of supervisors. There would be no restrictions on who qualified as candidates so long as they were BLA members.
This daring proposal for direct elections went well beyond the modest, gradual expansion in administrative authority that some judicial bureaus have allowed their lawyers associations. It even went beyond the highly-touted Shenzhen experiment in which, since 2003, not only law firms but also individual lawyers voting within their firms have chosen representatives to the lawyers association congress. The congress then elects the organization’s leaders after listening to the candidates’ speeches and asking them questions. The Shenzhen experiment was designed to replace the so-called “official-dominated model” (guanban moshi [官办模式]) whereby judicial bureau officials traditionally selected the lawyers association leaders. Yet it is uncertain whether the Shenzhen arrangements are as democratic as advertised, since judicial bureau officials take part in the congress presidium that gives final approval to the list of candidates for the association’s leading posts. Indeed, when some lawyers noted the possibilities this presents for official manipulation of the congress’s selections, the Deputy Director of the Shenzhen Judicial Bureau stated that government intervention and instructions are necessary during the earliest stage of the association’s exercise of autonomy and would advance its healthy development.2 Without empirical verification, it is also unclear whether lawyers who cast their individual votes via their law firm are in fact as free to decide as they would be if permitted to vote independently of their firm.
Appeal to Legal Lawyers
The Beijing Group’s campaign began on August 26, 2008, when 35 lawyers published an Internet appeal (“the Appeal”)3 calling upon local lawyers to abandon their passivity and join the demand for direct election of BLA leaders as well as its congress. (See Beijing lawyers’ appeal for direct election, in English translation by Human Rights in China.) The Appeal claimed that, because very few lawyers took an interest in the BLA, the organization had never achieved the goal of protecting lawyers’ rights and interests proclaimed in the Lawyers Law. Indeed, the Appeal maintained, although the BLA has conducted some meritorious programs, it has also often obstructed and even helped to punish lawyers for legitimate professional activities. Moreover, the Appeal stated, the BLA had never had an approved charter or election procedures, it was staffed primarily with Judicial Bureau personnel, and was led, at least nominally, by wealthy lawyers who used it to promote their own interests. As a result, the Appeal claimed, the BLA forced lawyers and law firms to pay very high membership fees, failed to disclose its income and expenditures, and served generally as a vassal of the Judicial Bureau. In these circumstances, the Group argued, the BLA has not been accountable to its membership and has lacked legitimacy.
The remedy, the Appeal asserted, is to “keep pace with the course of history” by allowing China’s contemporary experiments with “grass roots democracy,” such as village elections, to reach the country’s lawyers associations.
They should now be permitted to hold direct elections for their leaders and lawyers’ representatives. Doing so in Beijing would establish China’s first truly democratic election for a lawyers association, it claimed. Several days after the Appeal appeared, two Group members visited Xiao Lizhu, Director of the Judicial Bureau’s Lawyers Management Division, who told them to stop the Appeal, which he termed unacceptable and dangerous. Nevertheless, they sent the Appeal to the BLA’s Secretary-General, issuing a challenge that the organization could not ignore.
The BLA Responds
On September 5, 2008, the BLA responded with a “Stern Statement”4 emphasizing that the organization represents the interests of all lawyers, has adequate channels for listening to their suggestions, and practices “democratic” policy-making, management, and supervision. (See the official reaction, in English translation by Human Rights in China.) It warned that:
Any individual who, in the name of promoting democratic elections, uses text messages or websites to privately link up with other members of the Beijing Lawyers Association, publishes inflammatory speeches, starts rumors among Beijing lawyers and poisons their minds, and attempts to rope in unsuspecting lawyers to support the so-called “Beijing Lawyers Association Direct Election,” is violating the law.
The BLA accused the Group of trying to take advantage of the impending election of the next term’s lawyers’ representatives “as an opportunity to exploit the enthusiasm of some lawyers for participating in the professional management of the [BLA].” Their goal, it said, is “to break away from the supervision and guidance of the judicial administrative organ [the MOJ] and the professional management of the lawyers association, and to utterly reject our country’s current management system for the legal profession, judicial system, and even political system.”
Two days later, the Group answered the “Stern Statement,” refuting the accusation that it is unlawful to insist on a direct election and demanding an apology from the BLA. Since the BLA consists of all lawyers, the answer said, it is plainly lawful to call upon all lawyers to exercise their right to take part in BLA elections.5
After this, warfare between the two sides became intense. On September 8, the Beijing Haodong Law Firm, obviously under pressure from the Judicial Bureau, requested one Group member, lawyer Tang Jitian, to leave its employ “for the sake of the future of the firm.”6 A few days later, the BLA, after a six-year delay, released a draft local Charter for comments by themembership.7
On September 13, four Group lawyers met with Dong Chunjiang, Deputy Director of the Judicial Bureau, who accused them of evil intentions and cryptically opined that it is “technically impossible to implement direct elections.”When Dong asked the lawyers whether they agreed that the Communist Party should lead the BLA, they replied that the Party should act within the nation’s Constitution and other laws and that no law authorizes the local Party committee or the Judicial Bureau to lead the lawyers’ association.8 The Group appeared to be relying on a close reading of Article 4 of the Lawyers Law, which authorizes judicial administrative departments to “monitor [监督] and guide [指导]”—not “lead [领导]”—lawyers, law firms, and lawyers associations.
Also on September 13, the Group—undeterred by official warnings—announced establishment of its own direct election website, and the following week submitted its suggestions in response to the Judicial Bureau’s request for comments on the draft BLA Charter.9 Shortly afterward, Tang Jitian, who had been fired by his law firm, brought suit against the BLA in Beijing’s Xicheng District Court. He alleged that the “Stern Statement” had damaged the reputations of Group members, was libelous, and had violated not only Chinese law but also China’s international legal commitments. However, as so often occurs in politically sensitive litigation in China, the court refused to accept the case, deeming the dispute “relatively special” and more appropriate for handling as an internal affair of the BLA.10
By the end of September, each of Beijing’s district judicial bureaus had told the partners or directors of every law firm that the Group’s efforts had an “international background” and “political goals” and were illegal.11 The bureaus demanded that all lawyers withdraw from the Appeal. On October 9, the Chaoyang District Judicial Bureau increased the pressure by asking the heads of some firms that employed Group members to obtain written explanations concerning their motivations for joining the Appeal. Three Group members were then asked to leave their firms. District judicial bureaus also summoned many law firm heads and lawyers to report on Group motivations and whether any “hostile external forces” were backing the Appeal. The Beijing district judicial bureaus made clear that, if any lawyer failed to withdraw from the Appeal, his firm would face problems on the next occasion its annual license came up for renewal.12
Despite this coercion, by October 13 the number of lawyers endorsing the Appeal had more than doubled to 82.13 Although still a miniscule percentage of Beijing’s more than 18,000 lawyers, the Group was regarded as a threat significant enough that the harassment continued. At the end of the month, the Yitong Law Firm fired two Group members after a visit from Haidian District Judicial Bureau officials, who took photographs and questioned the staff about various cases.14 Yet, on November 21, three Group members submitted an open letter to the Beijing Judicial Bureau and the BLA, calling for an audit of the BLA’s accounts and public disclosure of its finances.15
On December 20, 2008, the BLA quietly convened a meeting of 125 lawyers’ representatives and 31 Judicial Bureau officials, which adopted its draft Charter.16 In the meantime, Group lawyers were preparing for what they hoped would be an opportunity to run as candidates in the impending BLA election. On January 10, 2009, at a lawyers training program, Yang Huiwen distributed 1,000 copies of an open letter announcing his plan to run for the BLA presidency. A week later, when the BLA held a movie event at the National Library, guards stopped Yang from handing out campaign literature, confiscated His materials, and slightly injured him in a scuffle.17
New Election Procedures
On January 13, 2009, the BLA website published draft “Election Procedures for the Eighth Beijing Lawyers’ Representative Congress” and solicited lawyers’ comments.18 The draft constituted a significant, and undoubtedly embarrassing, concession to the Group. Although it did not authorize direct election of BLA leaders, it did provide for direct election of lawyers’ representatives rather than their continuing selection by the incumbent board of directors. This new opening led the well-known reformer, Xu Zhiyong, to issue a letter urging all Beijing lawyers, “for the sake of social progress,” not to ignore their new right but to vote in the coming election and choose as their representatives those candidates who “act in the public interest.”19 On February 5, 2009, the BLA board of directors adopted the draft Election Procedures.20 Despite the Election Procedures’ ground-breaking authorization of direct election of lawyers’ representatives, the Group published an article criticizing the Procedures for unfairly restricting lawyers’ exercise of their newly-granted right.21
The Group attacked the Election Procedures on four grounds: (1) they permit only those lawyers recommended by law firms or organizations to seek election as a representative, thereby narrowing the list of potential candidates and making it more difficult for controversial lawyers to run; (2) they do not require a candidate to meet and answer questions from the voters; (3) they do not require minimum standards of fair procedure, such as secret balloting, open counting of votes, announcement of election results on the spot, and supervision by disinterested parties; and (4) they do require post-election BLA review, pending which the results are not deemed to be final.
What the Group’s critique could not anticipate was that the BLA would apply the Election Procedures in an even more blatantly unfair fashion. Five of the original Group members sought election in the Chaoyang District. Although each obtained the formal endorsements required in order to be placed on the lists of candidates posted by the BLA prior to the February 26-28 election, their names were all omitted from the lists in violation of the Election Procedures. Nevertheless, because the ballots had allocated a space for the names of “other candidates” to be written in, as authorized by the Election Procedures, it was possible to vote for unlisted “independent” candidates, and all five Group candidates received a substantial number of votes, although, like the listed candidates, none received the majority required for victory.
Because of this situation, on March 4 a runoff election was held in Chaoyang’s election districts.22 This time, however, in addition to again illegally omitting the names of the five Group members from the lists of candidates, the BLA not only provided no place on the ballots for writing in the names of “other candidates” but also maintained that, if any name not already on the ballots was written on them, those ballots would be deemed invalid. This effectively eliminated all five candidates, including Cheng Hai, who in the first round had polled the fifth-highest total among the 17 candidates in his district. Presumably the unfairly-eliminated candidates will resort to litigation in an effort to undo this flagrant misconduct. Meanwhile, the BLA convened a post-election representative congress from March 27 to 29.
Going after Yitong
At the same time, the Judicial Bureau followed through on its threats to punish any law firm that employed Group supporters. In mid-February, its sub-agency, the Haidian District Judicial Bureau, notified the Yitong Law Firm that it intended to shut down the firm for six months, supposedly for allowing a lawyer, Li Subin, to practice without a license. Mr. Li and six other Group members had already left Yitong several months earlier because of official pressures. A leading human rights lawyer, Mr. Li had moved to Yitong because, after winning a suit against a judicial bureau in his native Henan Province for overcharging lawyers’ registration fees, he was unable to renew his license there. While waiting for an extended period for the Beijing Judicial Bureau to grant him a license, he worked as an administrator at Yitong, which led to the charge that he had been performing as an unlicensed lawyer.
As Yitong lawyer Liu Xiaoyuan noted, a six-month shutdown is tantamount to a death sentence for a law firm and has been used to stifle other non-conformist Beijing firms. The Judicial Bureau, he pointed out, could have been expected to issue a much milder sanction for this type of violation, such as a formal warning or confiscation of the income earned from the transgression.23 Not surprisingly, there is a widespread belief in Beijing lawyer circles that in the Judicial Bureau’s eyes, Yitong’s real offense was its affiliation with many lawyers who favored direct BLA elections and its involvement in other matters unpopular with the authorities. Li Subin claims that, if the authorities were concerned about his professional behavior, they should have pursued him personally instead of punishing his firm. In addition to receiving professional sanctions, he could have even suffered loss of his Communist Party membership.24
Yitong, of course, challenged the proposed decision to close the firm under the Administrative Penalties Law [行政处罚法]25 and was granted an administrative hearing On March 3. On March 17, Yitong received the official decision to shut down for six months, and a notice to turn in the licenses of its staff lawyers. The firm had the right to request reconsideration of the decision within 60 days or file an administrative suit against the Haidian Judicial Bureau within three months; it chose the former and on April 1 filed a lengthy supporting brief with the Beijing Judicial Bureau.
Yitong had already brought a suit against the Beijing Judicial Bureau26 in Xicheng District Court under the Administrative Procedure Law [行政诉讼法],27 seeking review of the failure to issue a license to Li Subin. The court’s reception division accepted the complaint, and the case was scheduled to be heard on April 2.
In addition, in late February 2009, the indefatigable Li Subin and five lawyer colleagues asked the Beijing Public Security Bureau to investigate both the Beijing Judicial Bureau and the BLA on the ground that their system for collecting exorbitant annual fees from lawyers and law firms constitutes the crimes of extortion and blackmail. They claim that there is no legal basis for collecting these fees but that lawyers and firms feel compelled to pay them in order to assure annual renewal of their registrations and licenses.28
Where, when, and how will this multi-front warfare conclude? The stakes for lawyer autonomy and progress toward the rule of law in China are high. Truly “self-regulating” lawyers associations can make an enormous contribution to law reform, in theory and in practice, as experience in many other jurisdictions, including Taiwan, has demonstrated.
In this situation, as in many others, the outcome in Beijing is likely to set the standard for the rest of the country, which, so far as one can tell, has thus far not sought to emulate the Shenzhen experiment.
The Beijing public interest lawyers have made a good beginning, if largely in principle and at high cost to themselves. They have successfully pressed the Judicial Bureau and the BLA to hold the nation’s first direct election allowing lawyers to vote for their congress representatives, if not their leaders, separately from their law firms. Yet, because of various restrictions imposed by the authorities, it is unclear whether in reality this first direct BLA election constituted a significant step beyond the three Shenzhen direct elections of representatives that have been held via law firms since 2003.
One hopes in the near future to have the Group’s detailed assessment of how Beijing’s innovation was implemented and the extent to which the Group managed to attract participation of the capital’s lawyers. One also hopes for an empirical study of the Shenzhen experiment, whose arrangement for electing lawyers’ representatives is not very different, at least on its face, from the BLA innovation.
It will also be desirable to conduct detailed studies of the governance of lawyers associations in Shanghai and other cities where there have been fragmentary reports of progress toward autonomy either in rules or practice.
As Deng Xiaoping liked to emphasize: “Seek truth from facts.”Yet, whatever the facts, it seems safe to predict that the struggle for lawyer autonomy in China will not end soon.
The author would like to thank Tina Tan and Chen Yu-Jie of Human Rights in China for their invaluable assistance in providing research for this article.
1. Lawyers Law of the People’s Republic of China [中华人民共和国律师法], issued by the Standing Committee of the National People’s Congress [全国人民代表大会常务委员会], promulgated May 15, 1996, effective January 1, 1997; revised December 29, 2001, effective January 1, 2002; revised October 28, 2007, effective June 1, 2008 (as revised 2007). ^
2. “Shenzhen lüshi xiehui zhangcheng fenzheng zaiqi daibiao paohong dahui zhuxituan” [深圳律师协会章程纷争再起代表炮轰大会主席团], Southern Daily [南方日报], August 28, 2005, http://www.southcn.com/news/dishi/shenzhen/shizheng/200508280069.htm. ^
3. Cheng Hai [程海] et al., “Shunying lishi chaoliu shixian lüxie zhixuan—zhi quanti Beijing lüshi, shi sifaju, shi lüxie de huyu” [顺应历史潮流实现律协直选——致全体北京律师、市司法局、市律协的呼吁], August 26, 2008, available at http://www.boxun.com/hero/200809/tengb/3_1.shtml; see also Human Rights in China, “Appeal by 35 Lawyers,”August 26, 2008, http://www.hrichina.org/public/contents/149292 (unofficial English translation of the Appeal). ^
4. Beijing Lawyers Association [北京律师协会], “Beijing shi lüshi xiehui guanyu shaoshu lüshi huyu suowei ‘Beijing lüxie zhixuan’ de yanzheng shengming” [北京市律师协会关于少数律师呼吁所谓“北京律协直选”的严正声明], Shoudu Lüshi [首都律师], September 5, 2008, http://www.bmla.org.cn/bjlawyers2/news/show_content.jsp?infoID=IC02000024280; see also Human Rights in China, “‘Stern Statement’ By Beijing Bar Association,” September 5, 2008, http://www.hrichina.org/public/contents/149292#stern (unofficial English translation of the Statement). ^
5. Cheng Hai [程海] et al., “9 yue 6 ri qianming huyu shu lüshi dui Beijing lüxie de yanzheng shengming geiyu shumian huiying” [9月6日签名呼吁书律师对北京律协的严正声明给与书面回应], Lüshi Shalong [律师沙龙], September 7, 2008, http://www.lvshishalong.com/printpage.asp?ArticleID=1532. ^
6. Human Rights in China, “Lawyers Are Dismissed by Firms for Supporting Beijing Lawyers Association Direct Election, Law Firms Are Threatened,”October 31, 2008, http://www.hrichina.org/public/contents/72449. ^
7. Beijing Lawyers Association [北京律师协会], “Beijing shi lüshi xiehui guanyu Beijing shi lüshi xiehui zhangcheng cao’an zhengqiu yijian de tongzhi” [北京市律师协会关于《北京市律师协会章程》草案征求意见的通知], Shoudu Lüshi [首都律师], September 12, 2008, http://www.bmla.org.cn/bjlawyers2/news/show_content.jsp?infoID=IC02000024364. ^
8. Cheng Hai [程海], “9 yue 13 ri 4 wei lüshi yu Dong Chunjiang juzhang goutong lüxie zhixuan wenti” [9月13日4位律师与董春江局长沟通律协直选问题], Lüshi Shalong [律师沙龙], October 2, 2008, http://www.lvshishalong.com/ShowArticle.asp?ArticleID=1535. ^
9. Cheng Hai [程海] et al., “9 yue 22 ri huyu lüshi dijiao shi sifaju he lüxie dui lüxie zhangcheng zhengqiu yijian gao de xiugai yijian” [9月22日呼吁律师递交市司法局和律协对律协章程征求意见稿的修改意见], Lüshi Shalong [律师沙龙], September 22, 2008, http://www.lvshishalong.com/ShowArticle.asp?ArticleID=1540.^
12. Human Rights in China, supra n. 6.^
13. Tian, supra n. 11. ^
14. Human Rights in China, supra n. 6.^
15. “11 yue 21 ri xiawu Beijing lüshi dijiao gongkaixin, qianglie yaoqiu lüxie huanjie shenji bing gongkai caiwu” [11月21日下午北京律师递交公开信，强烈要求律协换届审计并公开财务], Lüshi Shalong [律师沙龙], November 21, 2008, http://www.lvshishalong.com/ShowArticle.asp?ArticleID=1581. ^
16. Beijing Lawyers Association [北京律师协会], Beijing shi lüshi xiehui zhangcheng [北京市律师协会章程], Shoudu Lüshi [首都律师], December 20, 2008, http://www.bmla.org.cn/bjlawyers2/web_manager/infocenter/annexfiles/IC04000008130.doc. ^
17. Tian Qizhuang [田奇庄], “Beijing lüxie zhixuan huodong jian xue le” [北京律协直选活动见血了], Lüshi Shalong [律师沙龙], January 19, 2009, http://www.lvshishalong.com/ShowArticle.asp?ArticleID=1624. ^
18. Beijing Lawyers Association [北京律师协会], “Guanyu di ba jie Beijing shi lüshi daibiao dahui daibiao xuanju banfa (cao’an) zhengqiu yijian de tongzhi” [关于《第八届北京市律师代表大会代表选举办法（草案）》征求意见的通知], Shoudu Lüshi [首都律师], January 13, 2009, http://www.bmla.org.cn/bjlawyers2/news/show_content.jsp?infoID=IC02000025880. ^
19. Xu Zhiyong [许志永], “Zhi Beijing lüshi de yi feng xin” [致北京律师的一封信], Lüshi Shalong [律师沙龙], January 15, 2009, http://www.lvshishalong.com/ShowArticle.asp?ArticleID=1620. ^
20. Di ba jie Beijing shi lüshi daibiao dahui daibiao xuanju banfa [第八届北京市律师代表大会代表选举办法], issued by the Beijing Lawyers Association [北京律师协会], promulgated and effective February 5, 2009, http://sifaju.bjchy.gov.cn/sub/viewDetail.jsp?newsid=83158&subjectid=3487. ^
21. Cheng Hai [程海] et al., “Zhe jiu shi qijie Beijing lüxie jiaochu deminzhu dajuan!” [这就是七届北京律协交出的民主答卷！], Lüshi Shalong [律师沙龙], February 9, 2009, http://www.lvshishalong.com/ShowArticle.asp?ArticleID=1630. ^
24. Ibid. ^
25. Administrative Penalties Law of the People’s Republic of China [中华人民共和国行政处罚法], issued by National People’s Congress [全国人民代表大会], promulgated March 17, 1996, effective October 1, 1996. ^
26. Li Jingsong [李劲松], “Kuaixun: fayuan yi zhengshi shouli Yitong suo su sifaju wei lüxing gei Li Subin huanfa lüshi zhiye zhengshu zhize yi an” [快讯:法院已正式受理忆通所诉司法局未履行给李苏滨换发律师执业证书职责一案], February 26, 2009, http://www.bj580.com/plus/view.php?aid=472. ^
27. Administrative Procedure Law of the People’s Republic of China [中华人民共和国行政诉讼法], issued by National People’s Congress [全国人民代表大会], promulgated April 4, 1989, effective October 1, 1990. ^
28. Li Subin [李苏滨] et al., “Guanyu yaoqiu Beijing shi sifaju juzhang, lüxie huizhang deng ren tuihuan qiaozha lesuo lüshi qiankuan de jubao xin” [关于要求北京市司法局局长、律协会长等人退还敲诈勒索律师钱款的举报信], Boxun [博讯], February 23, 2009, http://news.boxun.com/news/gb/china/2009/02/200902232339.shtml. ^