NEW RULES FOR RIGHTS DEFENSE LAWYERS

C O N F I D E N T I A L SECTION 01 OF 02 BEIJING 010900

SIPDIS

SIPDIS

NSC FOR WILDER
DEPT FOR DRL, L AND EAP/CM

E.O. 12958: DECL: 06/01/2031
TAGS: PHUM PREL KJUS PINR CH
SUBJECT: NEW RULES FOR RIGHTS DEFENSE LAWYERS

REF: A. BEIJING 1303

B. BEIJING 6612

Classified By: Classified by Acting Internal Political Unit Chief
Susan Thornton. Reasons 1.4 (b/d).


1. (C) Summary: The All-China Lawyers Association
(ACLA) has issued a "Guiding Opinion on Lawyers
Handling Mass Cases" that calls for lawyers in
"collective" and "major sensitive" cases to "accept
the monitoring and guidance" of judicial agencies.
The Opinion discourages lawyers from participating in
non-litigation activities and notes that they should
approach the media and foreign organizations
"cautiously." Clearly meant as a warning to public
interest lawyers and those willing to press the cases
of activists, it is unclear at this point what the
impact of the guidance will be. It appears, however,
that the leadership's concerns over the potential for
intellectuals to team up with disaffected groups and
threaten social stability are at the core of the new
rules. End Summary.


2. (SBU) On May 15, the ACLA published a "Guiding
Opinion on Lawyers Handling Mass Cases" providing that
lawyers who take on such cases should report the cases
to government officials through their bar associations
and "accept the monitoring and guidance of judicial
administration agencies." The opinion applies to both
"collective cases," defined as those involving ten or
more people, and "major sensitive cases," which are
not defined in the opinion. Lawyers are banned from
supporting "petitioning" and other activities that
disturb the normal work of state organs or that
disturb social order. They are also cautioned against
participating in non-litigation activities and told to
approach the media and foreign organizations
"cautiously." The notice requires lawyers to work
with local authorities to resolve disputes and to
notify judicial authorities if they identify problems
that might "intensify" disputes. Violations may
result in professional sanctions.

ACLA Efforts to Improve MOJ Draft
--------------


3. (C) Beijing defense attorney Mo Shaoping, who is a
member of the ACLA Criminal Defense Committee, said
ACLA members were called to meetings in March by
Ministry of Justice officials and presented with a
draft of the new guidance to be issued by the ACLA.
According to Mo, ACLA debated the text and made some
marginal improvements, but felt it had no choice other
than to issue the guidance. Mo interpreted the new
guidance as an attempt to warn attorneys to steer away
from sensitive social issues, especially those
involving land and petitioners. As an example, Mo
pointed to efforts by private oilfield owners in
Shaanxi Province to gain compensation for their wells
that were confiscated by local government (ref A).
The attorney who organized the private owners, Mo's
former employee Zhu Jihu, was jailed for several
months last year on charges of illegal assembly after
meeting with his petitioner clients.


4. (C) ACLA Human Rights and Constitutional Law
Committee Chairman Wu Ge said that ACLA attorneys
tried to make something positive out of the bad draft
rule that was presented to them by MOJ. He and other
attorneys submitted comments successfully modifying
parts of the rule to affirm lawyers' duties to take on
pro bono cases, including the defense of lawyers
jailed in the line of duty. But he acknowledged that
the rule will make it much more difficult to pursue
cases, especially in provinces outside of Beijing,
where cooperation with local authorities is mandated.
Attorney Wang Li of Shenyang's Tong Yang Law Firm
said, however, that his law firm will continue to do
pro bono work after the rule takes effect, but that it
has always done so mindful of the need to keep
authorities informed and to be wary of the social
implications of such work.


5. (C) Well-known Shanghai criminal lawyer Liao
Xiaohua told Consulate Rule of Law Coordinator that
the guideline was actually helpful, as it clarified
what kinds of cases were "safe." He predicted that
this would encourage his firm to take on more
collective litigation cases, as it would reduce the

BEIJING 00010900 002 OF 002


scope for interference from the Shanghai Municipal
Government. Nanjing Intermediate Court Civil
Litigation Section Chief Judge Yao Zhijian said the
guideline wouldn,t have a major impact on his court,
as the court already treats cases involving multiple
parties separately, both to avoid scrutiny and to get
credit for handling a large number of cases. Fudan
University Law Professor Zhang Wusheng said many
lawyers in Shanghai use the same approach.

ABA Sees Opinion Discouraging Collective Cases
-------------- -


6. (C) Allison Moore, representative of the American
Bar Association in Beijing, said the rule could
potentially inhibit "social impact" litigation. The
rule's origin came from complaints by local bar
associations and provincial justice bureaus that they
could not control Beijing attorneys filing public
interest cases in their areas, Moore said. Some
officials complained that "management of attorneys
needed to be strengthened" to prevent embarrassment
for local officials.


7. (C) Two provisions of the rule in particular will
be especially limiting for public interest attorneys,
Moore predicted. First, environmental litigator Wang
Canfa told Moore that the rule will likely restrict
the ability of Beijing and Shanghai lawyers to file
cases in provincial areas. Most anti-pollution
litigation that Wang's Center for the Victims of
Pollution handles is now done in ad hoc partnership
with individual local attorneys, Wang explained. The
new rule requires that three lawyers sign off and take
responsibility for any group case filed in their
areas, including three partners in a single law firm.
This provision will make it harder for the Beijing
attorneys with special expertise to convince local
attorneys to take on cases that might irritate local
officials, Wang predicted.


8. (C) Second, by limiting contact with the media and
restricting other "non-litigation tactics," the rule
makes it increasingly unlikely that social problems
will be resolved through litigation. Most attorneys
filing lawsuits to address social issues recognize
that victory in court is quite unlikely, Moore said.
Rather, many class-action lawsuits are filed to raise
attention to social problems in the media and with
Central Government officials. By restricting the
ability of lawyers to gain media attention and
generate concern in Beijing about local problems, the
rule will make litigation a less effective tool and,
instead, will help local officials cover up
embarrassing situations, Moore said. She noted that
her opinions on the new rule were informed by talks
with public interest attorneys handling criminal
defense, environmental and women's and children's
cases.


9. (C) Comment: The Opinion is clearly meant as a
warning to or check on public interest lawyers and the
"rights defense movement" (Ref B),whose leaders
include many Beijing rights attorneys. These lawyers
have, over the past three years, challenged government
officials by raising a series of high-profile cases
addressing issues such as censorship, criminal
detention and rural issues. While the implementation
and potential effects of the Opinion are not yet
clear, the leadership's concerns about the potential
for intellectuals to team up with disaffected groups
and disrupt social stability will likely mean
continuing difficulties for rights defenders.
RANDT