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Can Lawyers Build a Legal Complex for the Rule of Law in China?

July 25, 2014

Weiquan—rights defense—lawyering had two defining characteristics prior to the 2010-2011 crackdown on lawyers and civil society activists. First, weiquan lawyers were high-profile in their style of lawyering and did not shy away from political issues. They courageously accepted cases that other lawyers rejected. They intentionally chose cases for their sensitivity to attract attention and create impact. Picking “high-hanging fruits” is of course a costly business, and for that reason, weiquan lawyers were commonly perceived as radicals and attention seekers and were not understood by their peers. They were a unique group of lawyers of a unique quality who fought alone.

Second, their agenda was overly political, and law served as an entry point to a larger, yet ill-defined, battle against the system. They used litigation as a part of their media and social mobilization strategy, since there was not a legal community of shared identity and objectives upon which to rely. In their view, the whole legal system, including the courts, was repressive and had to be challenged.

In response to the challenge of the Arab Spring that began in December 2010, the Chinese government launched one of the most severe crackdowns on human rights advocates in China. Although the crackdown itself was limited in its scope and surgical in its operation, weiquan lawyers were among its primary targets. One by one, leading weiquan lawyers were “disappeared” and secretly detained for weeks and, sometimes, months. The intimidation created a repressive moment when most of the weiquan lawyers were silenced and that chilling effect lingered for months after the lawyers’ release.

These weiquan lawyers eventually returned to the same battlefield of human rights protection, but with two significant changes in the way they conduct weiquan lawyering.

The first change is the toning down of their rhetoric. Direct challenges to the Party state and advocacy of regime change, in their traditional forms, have waned as a result of state repression. Weiquan lawyers are now more rooted in, and have become a part of, a larger rights movement that patiently uses laws and legal tools to tame, mould, and change the political system. The lowered profile of weiquan lawyers has desensitized weiquan lawyering and allowed the practitioners to work with many others who are eager to participate in public interest lawyering with much less political confrontation. It is now possible for weiquan lawyers to reach out to, and join forces with, vibrant civil society actors, with a clear objective to use social and economic issues as platforms for the promotion of rule of law and government accountability. There is thus an increasing convergence between ordinary rights protection and weiquan lawyering. Together, they have largely moved the political rhetoric to the backstage and are engaging in lower-risk, ordinary social and economic issues, picking the “low-hanging fruit” for their human rights advocacy work.   

The second change in the weiquan lawyering landscape is the rise of professional lawyers—established lawyers who have developed a new interest in public interest. In the immediate aftermath of the disappearances and intimidation, fear permeated the entire legal profession. Despite the continuous harassment and amid the fear, something happened to tip the balance. Slowly, lawyers came out to the public stage as a group and acted collectively to defend lawyers’ interests and what the profession stands for.  

This started with the case of Li Zhuang, a Beijing lawyer, who in January 2010 was convicted of perjury in Chongqing while he was defending a mafia chief during the city’s infamous anti-mafia campaign. In April 2011, as he was serving an 18-month prison term, the authorities brought new charges against him.

The prosecution of Li and the entire anti-mafia campaign were regarded as such extraordinary abuses of the rule of law that lawyers launched a well-orchestrated collective protest against the Chongqing authorities. In the process of defending Li Zhuang, a group of professional lawyers moved into the spotlight as a result of their insightful and critical legal comments, their ability to mobilize the legal community and public support, and their aggressive and uncompromising style of lawyering.

The Li Zhuang case demonstrated the possibility that a successful mobilization of lawyers can generate sufficient political pressure to force authorities to back down in a particular case.

In China’s authoritarian state, the state may continue to abuse power and impose punishment in violation of its own law, but the state can no longer control and predict how society may respond. In the Li Zhuang case, as the system forced the case to proceed, and as the authorities mobilized its propaganda machine to insult the lawyer and indirectly the whole legal community, the state provoked a collective (re)action by the lawyers against the abuse.

One can see the convergence of the old weiquan lawyers and a new type of protest lawyers in Li’s case. Core members of the weiquan movement, including He Weifang,[1] Jiang Ping,[2] and Zhang Sizi,[3] provided the much needed moral, intellectual, and symbolic support. They did so either individually by criticizing the prosecution and the anti-mafia campaign or collectively by participating in a concern group. He Weifang, in particular, wrote a pointed essay to challenge the legality of the prosecution and the political manipulation behind the case.

The prosecution and propaganda provoked a group of academics and lawyers to act and offered an excellent opportunity to show their legal talents and moral courage. The on-line legal analysis posted by Chen Youxi[4] and Si Weijiang[5] and others destroyed  the prosecution’s case and placed Chen and Si on the national stage. Both became instrumental in defending Li in public and behind the scenes and have turned into activists ever since. They are moving steadily upwards in the weiquan ladder. Professor Tong Zhiwei’s[6] insightful critique of the Chongqing anti-mafia campaign provided the moral and intellectual support for the lawyers’ mobilization at a deeper level.

Three days into Li’s second trial in April 2011, the prosecutors dropped the charges against Li.

Protest is contagious and a successful campaign can trigger a larger movement in which lawyers become a unified professional community, coherent in its identity and willing to act collectively. Lawyers’ ability in forcing the Chongqing authorities to drop additional charges against Li Zhuang and to allow him to walk free upon completing his first sentence was regarded as a huge success. It encouraged lawyers to demonstrate the power of legal mobilization in other cases such as those in Beihai,[7] Xiaohe,[8] Jiansanjiang,[9] and Zhengzhou.[10]  The cooperation among lawyers of different political stances has created a new wave of public interest lawyering.

Public interest lawyers are building their social capital by bonding, bridging, and linking. [11]

Bonding

Bonding refers to the cooperative relations and trust within homogeneous groups. In the case of public interest lawyers, bonding is a multi-dimensional matter. It relates to the formal or informal, thick or thin, interaction and trust among groups of such lawyers from different regions, with different specialities and interests, and of different political persuasions.

Public interest lawyering is a generic concept in China which comprises a variety of sub-categories of practice, with lawyers working in their respective legal issues. Bonding takes place first among public interest lawyers sharing a similar specialty and interest. The most active group of lawyers in building a network and community is perhaps labor rights practitioners and environmental lawyers.

After decades of incubation and communications within a small group of lawyers sharing a common identity and similar interests, some of the lawyers are reaching out to other public interest lawyers groups and developing a broader alliance and community of public interest lawyers. In the process, they are identifying bonds that may tie their professional work together.

Examples abound. Lawyers are organizing themselves outside the government-controlled bar associations and have developed alternative groups and networks. These networks operate on an informal basis and provide platforms for discussion and meeting places for gathering. After the Beihai cases, for example, lawyers realized the importance of unity when facing persecution and designed an informal Internet-based network which provides financial or other support for lawyers at risk. Lawyers or law firms in different cities offer themselves to visiting lawyers as hosts. In addition to informal chat and meals, the hosts also organize more formal seminars in which the visiting lawyers may discuss matters relating to the cases that they are working on. The mutual hospitality among public interest-minded lawyers provides the necessary comfort when working in other places and hostile environments.

While weiquan lawyers have always participated in moderate cases, there is a sign that it is moderate lawyers who are coming out to join weiquan lawyers in sensitive cases, such as defending the case of Wang Dengchao, a police officer in Shenzhen charged with corruption for his demand for democracy in China; the movement to assist the daughter of Zhang Lin, a veteran dissident, to return to the school of her choice; demanding disclosure of personal assets of senior Party officials; or, more recently, the New Citizens’ movement.

Bridging

Bridging in social capital literature refers to the cooperative relations and trust between diverse horizontal groups. When applied to public interest lawyers, the concept refers to the willingness and ability of public interest lawyers to reach out to, and build alliances with, civil society groups of more or less equal political status outside the legal profession—so as to build joint ventures within the broader community in promoting their causes. It is well-known that China does not have a legal complex as the term is defined in a mature legal system because of the hostility and lack of trust between lawyers and judges (and, for that matter, all state institutions). The key partners for public interest lawyers has always been social media, which could bring a legal case to the court of public opinion for broader public support, with the expectation that strong public opinion is able to influence a legal decision. The traditional alliance remains a strong one, and lawyers continue to rely on social media in litigation and in policy advocacy.

Public interest lawyers are trying to reach out to groups outside the legal profession and explore new frontiers for their advocacy. On the Internet, for example, public interest lawyers intentionally initiate online discussion on rights-related issues in forums that ordinarily shy away from any sensitive issues. Leading figures have offered lectures in law schools to introduce public interest laws to law students. But the natural ally of public interest lawyers with whom they work most closely is rights-based NGOs.  Both lawyers and NGOs are making efforts to build a closer partnership. Duan Yi’s[12] cooperation with labor NGOs; Guo Jianmei’s[13] joining enterprises with NGOs on gender equality; Zhou Wei’s[14] involvement in anti-discrimination NGOs; and Zeng Xiangbin’s[15] support for environmental NGOs are some of the best examples. 

The respective roles of lawyers and NGOs may vary largely depend on the capacity of the NGOs involved. For well-experienced NGOs with strong capacity, NGOs leaders tend to play a leadership role in defining the NGO/lawyer relationship and in initiating and organizing activities. Yirenping,[16] for example, reaches out to individual lawyers and provides a platform for legal intervention in public events.  Yirenping has created an impressive network of lawyers to provide much needed pro-bono legal services in high-impact cases. In the process of connecting legal services and legal need, Yirenping leverages its influential position among NGOs and its familiarity with the legal profession in matching legal expertise to specific legal need.

When an NGO lacks the necessary capacity, lawyers tend to be more proactive in reaching out to NGOs to identify a particular legal need. Lawyers need NGOs to reach the sources of problems so as to bring cases which are otherwise invisible to legal attention, and NGOs need lawyers to bring new strategies and opportunities on board. As it happens, legal knowledge brings a new perspective and creates new possibilities for advocacy. Again, lawyers are actively engaging grass roots disability NGOs and environmental NGOs to identify issues of common concerns and design strategies for legal action.  

Other lawyers go further in organizing civil society capacity building when facing repression. Zheng Jianwei’s[17] citizen capacity training offers an excellent example of bridging. Zheng offered legal and capacity training for his clients and others who are willing to learn, on the condition that they in turn provide similar training for other citizens. According to Zheng, his training is as much legal as it is psychological. He teaches legal details tailor-made for a specific legal action, such as requests for government information, reviews of law enforcement procedure or administrative litigation. Through teaching relevant legal rules and procedural skills, Zheng empowers citizens and reduces the fear that many of the citizens may have in interacting with officials.

Over the years, Zheng has provided training for nearly 200 citizens who in turn provide cascade training. The impact of the training is impressive. Armed with the legal knowledge and skills, citizens are bombarding government agencies with requests, exposing irregularity and abuse online through citizen-broadcasting, threatening with review and litigation. As many of the cases shown on Zheng’s blog demonstrate, empowered citizens are the strongest force to ensure government accountability.

Linking   

Linking refers to the ability to create cooperative relations and build trust with official institutions so to influence government decision-making. Compared to bridging, which aims at building horizontal ties between groups of similar level of political power, linking is a means to build vertical ties among groups from different hierarchical levels of power. In the context of public interest lawyering, linking refers mainly to the possibility of a meaningful dialogue and effective communication between lawyers and a variety of government entities, including political (Party organs), legislative (people’s congresses at various levels), judicial (courts and procuratorates), and executive/professional bodies (police, bureau of justice, bar associations).

Traditional weiquan lawyers are suspicious of legal institutions and treat courts as their adversaries rather than a partner which could be relied on in launching any public interest legal action. Courts in China are not independent, and judges largely comply with the political instructions from China’s party state. In sensitive cases in particular, judges often ignore legal rules and make decisions for political expediencies. Instead of a neutral and independent tribunal, the court represents the state in confrontations with weiquan lawyering. There is no legal complex in China in which legally trained lawyers—broadly defined to include lawyers, judges, and prosecutors, among others—can form a liberal-leaning alliance in fighting for a more limited state and a larger realm of freedom. In China, the state uses the court to control the lawyers and limit the public interest causes behind the litigation.

Not surprisingly, when Chinese lawyers suffer, they suffer at the hands of their fellow professionals. It is the judges who limit the access to justice for lawyers by refusing to accept claims for litigation. It is the judges who rule against public interest causes regardless of their sound legal grounds. It is shocking to notice that the court has almost never ruled against an agency in open government information applications or against monopoly companies and government in any of the public interest cases. When weiquan lawyers are disciplined or disbarred, it is because these lawyers have launched an aggressive defense in court and protested against unfair treatment and outright illegality.     

There has long been an ongoing debate whether lawyers should work within the system or challenge the system from the outside, and whether lawyers should rely on law in litigation or use law to achieve a larger policy objective. The repressive episode against weiquan lawyers in 2010-2011 and the new blood from the professional lawyers change traditional thinking. Instead of bypassing the court, there is now a more critical engagement between judges and lawyers online or offline. The common understanding is that the court is now a significant battlefield and is a significant entry point into the system and a platform on which to speak to power. The “system” does not have a single interest or voice, and there are indeed positive forces within the system that can be harnessed and relied on by lawyers.

After the 2010-2011 repressive episode against weiquan lawyers, most of those lawyers have climbed down the weiquan ladder and adopted different strategies in their rights defense. They meet some of their professional peers mid-way who, shocked by the wanton violation of rule of law on the part of the state, act collectively in defending the principles of fair trials, judicial independence, and the rule of law. What united the two bodies of lawyers is a profound professional agenda: lawyers, because of their education and nature of their work, share a common identity and objectives. There is normative and instrumental value for lawyers to act together— “to keep warm by getting together”— because lawyers are vulnerable in what they do in China. In protecting the clients, they are fighting not only against the prosecution, but also, as the case may be, against the country’s entire legal and political system. Building trust and working in cooperation are the best survival strategies in China’s hostile legal environment. The professional identity and interest provide a strong thread to tie lawyers together. Professionalism matters tremendously in the formation of a legal community in China.

Based on a common identity and shared interests, and in pursuit of the same objectives of rule of law and accountable government, lawyers are reaching out to each other and increasingly cooperating in high-impact cases. They are also reaching out to other civil society organizations, to either search for mutual support or to extend their influence. And, finally, they are linking up with institutional actors, courts in particular, through dialogue. The legal community is building social capital in a multi-dimensional way.

What the future holds for the alliance of lawyers in building a legal complex is uncertain. The current legal and political space tolerates the moderate lawyering which focuses primarily on legal technicalities. And there are enough “low-hanging fruit” to pick for lawyers who have only recently converted to public interest work. The vexing question is how long the weiquan lawyers can use professional identity in their political pursuit and how long the emerging professional lawyers can constrain themselves to moderate lawyering within the boundary of legal rules before they move up the weiquan ladder.


[1] He Weifang (贺卫方), Peking University professor and prominent advocate of judicial reform in China; he argues that the Communist Party of China is unregistered and therefore an illegal organization.

[2] Jiang Ping (江平), civil law scholar, former president of the Chinese University of Political Science. He has called for asset and public budget disclosure and the abolition of Reeducation-Through-Labor.

[3] Zhang Sizhi (张思之), prominent human rights lawyer. He was the defense attorney in many influential political trials, whose clients include the Gang of Four, Bao Tong and, is currently representing, Pu Zhiqiang and Gao Yu.

[4] Chen Youxi (陈有西), criminal and business lawyer, was Li Zhuang’s defense counsel.

[5] Si Weijiang (斯伟江), Li Zhuang’s defense counsel.

[6] Tong Zhiwei (童之伟), professor at East China University of Political Science and Law with a focus on constitutionalism.

[7] During a murder trial in Beihai, Guangxi in 2010-2011, when evidence and testimony brought by the prosecutor were seriously challenged, the four defense lawyers were detained for “witness tampering.” Their detention prompted the creation of the Beihai Lawyers Concern Group, which provided legal support to the detained lawyers, and eventually led to the release on bail of three of the lawyers. Members of the concern group were beaten while attempting to assist the detained lawyers.  

[8] In 2010, Guiyang businessman Li Qinghong (黎庆洪) was charged with involvement in organized crime. Li’s lawyers claimed the prosecutor’s evidence for the case was fabricated and the trial was procedurally flawed. They also posted an appeal online for help in the defense. Many lawyers responded and an “All-Star Defense Team” of more than 30 lawyers was formed. Li was sentenced  with 14 years in jail, and the conclusion of the case was seen in the legal community as a major defeat for rule of law and a “miscarriage of justice.”

[9] In late March and early April 2014, a group of lawyers and citizens visited a “legal education base” in Jiansanjiang, Heilongjiang Province, that they suspected to be a Reeducation-Through-Labor camp, which continued to exist despite the official abolition of the RTL policy in December 2013. Other lawyers who came to support the detained lawyers and citizens were also taken into custody.

[10] After attending a June Fourth 25th Anniversary commemorative event in Henan on February 2, 2014, several lawyers and citizens were detained and some later arrested. Zhengzhou authorities denied the detainees’ lawyers access to their clients on the grounds of “national security,” which prompted 121 legal professionals to sign an open letter to the State Council. 

[11] See Robert D. Putnam, Bowling Alone: The Collapse and Revival of American Community (New York: Simon & Schuster, 2000).

[12] Duan Yi (段毅), labor lawyer based in Shenzhen. He founded what is believed to be the first labor rights law firm in China.

[13] Guo Jianmei (郭建梅), women’s rights lawyer and director of a women’s legal aid NGO in Beijing.

[14] Zhou Wei (周伟), constitutional law professor at Sichuan University. He has represented clients concerning discrimination based on health status, age, gender, social origin, and others.

[15] Zeng Xiangbin (曾祥斌), lawyer, represented an environmental NGO suing a Yunnan factory’s emission of poisonous waste. It was the first environmental case brought to court by an NGO rather than victims in China.

[16] Yirenping (益仁平), Beijing and Zhengzhou based civil society organization, involved in many cases concerning health status based discrimination, such as the law suit against Nokia for discrimination towards employees living with hepatitis B.

[17] Zheng Jianwei (郑建伟), human rights lawyer based in Chongqing, previously represented petitioners who were sentenced to Reeducation-Through-Labor. 

 

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About the Author

Fu Hualing (傅华伶) is a Professor at the University of Hong Kong Faculty of Law. His research interests are constitutional law and human rights, with a special focus on the criminal justice system and media law in China. He is coauthor and co-editor of Liu Xiaobo, Charter 08 and the Challenges of Political Reform in China and Resolving Land Disputes in East Asia: Exploring the Limits of Law. He is Co-chair of the board of directors of Human Rights in China.

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