EAST CHINA LEGAL CONTACTS ON NEW LAWYER LAW

C O N F I D E N T I A L SECTION 01 OF 03 SHANGHAI 000770 SIPDIS SIPDIS DEPT FOR EAP/CM AND DRL/PHD DOC FOR ITA - DAS KASOFF, CMCQUEEN, LRIGOLI, ESZYMANSKI E.O. 12958: DECL: XI MANUAL REVIEW TAGS: PHUM KJUS PGOV PINR CH SUBJECT: EAST CHINA LEGAL CONTACTS ON NEW LAWYER LAW CLASSIFIED BY: Christopher Beede, Political/Economic Section Chief , U.S. Consulate , Shanghai . REASON: 1.4 (b),(d) ¶1. (C) Summary: East China legal contacts are cautiously optimistic that the new Lawyer Law passed on October 28 and scheduled to be implemented on June 1, 2008 will increase legal protections for Chinese lawyers. The law expands the rights of lawyers to meet clients in criminal cases without supervision, legalizes individual law practices and strengthens the ability of lawyers to get access to files and records submitted during trials. However, the law has a number of flaws, according to our interlocutors. Lawyers can still be prosecuted for their statements in court if the statements "harm national security, slander others or disrupt order in court." Lawyers also can be held accountable if their clients stage protests, leading some lawyers to avoid housing demolition or mass dispute cases. Interlocutors stressed that the law will only have "teeth" if the procuratorate, local courts, and law enforcement officials actively implement it and change their own internal regulations. Legal contacts also observed that the rule of law atmosphere in China has become tighter and reported that the government cancelled at least two rule of law programs because of fears of "foreign foes' perversion" in the Chinese legal system. End Summary. New Lawyer Law: A Law Without Teeth? -------------- ¶2. (SBU) On October 28, the National People's Congress passed a new Lawyer Law which replaces the old Lawyer Law that had been in effect since January 1997. The new law redefines the role of lawyers by giving them a greater role in promoting a stable society. In the previous law, lawyers were seen as businessmen and did not have a role in promoting social justice. The new law acknowledges that lawyers should protect justice and promote equality in society. It will be implemented on June 1, 2008. In the past few weeks, FSN Rule of Law Coordinator and Political/Economic Section Chief solicited opinions and comments from a wide range of lawyers, professors, and judges in East China on the law. ¶3. (C) In a meeting on November 21, ROLC and Pol/Econ Section Chief met with prominent Shanghai legal experts including criminal defense lawyers and legal scholars. They are cautiously optimistic that the law will provide more protections to lawyers, but expressed concerns about the law's actual implementation after June 1. Zhang Peihong, a criminal defense lawyer from Shanghai Zhaijian Law, welcomed the new Lawyer Law. He said the old one was widely criticized by lawyers as a "Lawyer Punishment Law" under which hundreds of lawyers were unfairly arrested during the past 10 years. Zhang was pleased that the new law strengthened the rights of lawyers during court proceedings. Specifically, it provides lawyers with immunity for their statements in court and gives them more power to collect evidence and witness testimony. Hu Daoqin, a partner at Cenlaw & Partners, was also pleased with the law and noted that it provides lawyers with more authority to meet clients in custody. The new law allows for a lawyer to meet with a suspect or defendant without the approval or supervision (Jian Ting) of the public security organ, procuratorate or courts. The only requirement is that the lawyer must present three documents to the detention center: lawyers certificate, law firm approval, and a letter from the client granting power of attorney. ¶4. (C) Fudan University Law School Professor Zhang Wusheng and East China University of Law and Politics Professor Tong Zhiwei agreed with the lawyers that the law improves the ability of lawyers in representing their clients. They added that the law also improves the ability of lawyers to get access to any records or files that are submitted to the court during a trial. They cautioned, however, that it is hard to tell whether these improvements would be implemented and if the improvements will affect the daily practice of lawyers, especially if there is no cooperation from the police, courts and the procuratorate. First, the law conflicts with the current Criminal Procedure Law which states that when lawyers meet with criminal suspects in detention, investigative organs can send personnel to be present at the meeting, depending on the circumstances and need. The lawyers and legal experts at the meeting noted reports in the Chinese media that the Criminal Procedure Law will be amended next year and hoped that this will resolve the conflict between SHANGHAI 00000770 002 OF 003 the two laws. Second, in practice, access to clients is governed not only by the provisions of the Criminal Procedure Law but by the police's regulations that tend to be more restrictive. These regulations need to be changed before there is any actual progress on this issue. Zhang Peihong concluded that without those coordinated changes by the police, courts and procuratorate, the new Lawyer Law is just a "law without teeth." Individual Law Practices -------------- ¶5. (C) The lawyers and legal experts with whom we met all applauded the new Lawyer Law's inclusion of an article legalizing individual law practices. According to article 16 of the new law, "individual law firms" are permitted. Previously, lawyers could not open their own firms and worked in large law firms, which had at least three partners. In a meeting with ROLC on November 19, Shanghai Li Xiaohua Law Firm Partner Li Xiaohua explained that under the law there are three forms of organization: state-owned, partnership, and individual. "Cooperative" law firms which are only liable for debts that are equal to its assets have disappeared. Li said that the legalization of individual law firms is a result of experiments in Shanghai and Beijing, in which individual lawyers were allowed to open their own firms. These types of firms provide lawyers with more freedom to take on cases and flexibility. The new law requires that a lawyer must have at least five years of experience in practicing law before opening his or her own firm. Despite this restriction, Li expects that the number of such firms will increase in many cities. Legal Traps Remain -------------- ¶6. (C) While legal experts and lawyers support the new law overall, they voiced concerns about some of the law's clauses. Zhang Peihong said that although the new Lawyer Law reaffirmed that lawyers are immune from punishment for their statements in court, he worried that lawyers could still be prosecuted for their statements because of a potentially easily manipulated clause in the new law. The clause states that lawyers are immune "except for speeches that harm national security, slander others or disrupt order in court." "Harming state security" is often used for politically-motivated prosecutions, according to Zhang. He said it is difficult for criminal defense lawyers to know whether what they say in a courtroom could harm national security. ¶7. (C) The experts were also concerned about a clause in the new Lawyer Law that explicitly prohibits lawyers from "inciting and instigating plaintiffs to adopt illegal means such as creating public disturbances and/or harming public order to solve disputes." The experts said that on its face the provision is not controversial, but in reality, it makes it very risky for lawyers to represent protestors and mass dispute cases, given how loosely these disturbances are defined in practice. Zhang Wusheng pointed out that in China there are many mass dispute cases related to land and housing demolishment issues and it would be very easy for the government to accuse lawyers in these cases of "creating public disturbances and/or harming public order". Hu Daoqin said that his law firm recently had to reject a housing demolishment case in Shanghai because there was too much political pressure. Zhang Peihong described the clause as a sword hung above the head of lawyers who want to defend human rights and religious activists. Li Chen, a partner at the Zhibang Law Firm in Nanjing, told ROLC in a discussion on November 27 that because of a Jiangsu internal regulation, he had to report to the Jiangsu Bar Association plans of one of his clients to organize a protest against the Jiangsu Provincial Government. Li felt conflicted by the request since he thought that it was against a lawyer's conscience and obligation to his client. In the end, he told his client about the regulation before reporting the client's plans to protest to the government. Li said that with such a provision in the new Lawyer law, he expected more lawyers will face his same dilemma. Controls on Bar Associations Continue -------------- ¶8. (C) The lawyers and legal experts with whom ROLC spoke believe that the Central Government has retreated on its initial plan to grant bar associations more self-regulatory powers and have left bar associations firmly under the control and SHANGHAI 00000770 003 OF 003 supervision of judicial bureaus. Despite government efforts to maintain strong control over bar associations, interlocutors said that East China lawyers are trying to make the associations more independent. According to Zhang Peihong, Shanghai lawyers had planned to freely elect the president of the Shanghai Bar Association instead of voting for the candidates appointed by the government next year. The Shanghai Government squashed the plan, but will allow Shanghai lawyers to freely elect the Commissioner of the Shanghai Bar Association for the first time next year. According to Li Chen, the Jiangsu Bar Association was not able to pass its articles of association last year because lawyers were not satisfied with the increase in membership fees. Without the passage of the articles of association, the Jiangsu Bar Association is not a legal entity. Tight Rule of Law Atmosphere -------------- ¶9. (C) Interlocutors also voice concerns about the current rule of law atmosphere in East China. They said that the current political atmosphere for rule of law projects in China is not positive and top leaders are wary of foreign influence on lawyers. According to Zhang Peihong, a NYU Law School-sponsored criminal defense lawyers training program that he attended in 2006 was stopped by the Central Government. There is a rumor that President Hu Jintao personally asked that this program be cancelled. Li Chen reported that a foreign law firm's training workshop on private finance law in Hebei Province was recently cancelled after President Hu wrote a letter that requested the Ministry of Justice to be careful of "foreign foes' pervasion" in China's legal system. (Comment: It is unclear where Li and Zhang received their information on President Hu and whether this information is credible. It is unlikely that Li actually saw a copy of the letter. End Comment.) Comment -------------- ¶10. (C) While it appears that the new Lawyer Law is a step forward in providing lawyers with more legal protections, lawyers continue to be vulnerable to political pressure. Real change also depends on the courts, procuratorate, and local law enforcement officials taking a proactive approach in implementing the law and allowing the law to have teeth. JARRETT