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Joint Analysis of the Measures on the Administration of Law Firms and Administrative Measures for the Practice of Law by Lawyers of the People’s Republic of China

Joint Analysis of the Measures on the Administration of Law Firms and Administrative Measures for the Practice of Law by Lawyers of the People’s Republic of China

To:

Special Rapporteur on the independence of judges and lawyers

Submitted by:

China Human Rights Lawyers Concern Group (CHRLCG)

Chinese Human Rights Defenders (CHRD)

International Service for Human Rights (ISHR)

 

Executive Summary

This submission focuses on amendments between 2016 and 2018 to two Chinese administrative regulations, the Measures on the Administration of Law Firms and Administrative Measures for the Practice of Law by Lawyers. It first lays out a general background of the climate in which the amendments took place and the political and practical implications of their application. We particularly note the connection to the July 2015 crackdown, and urge the Special Procedures to consider the submission in that regard.

The submission then provides detailed analysis of key elements of the two measures which give rise to concern and lays out how the measures violate international human rights standards. It also includes an Appendix with case examples of lawyers who, due to the exercise of their rights to freedom of assembly, association and expression, as well as their professional rights as lawyers, have been concretely and negatively impacted by the two measures and the repressive environment for lawyers created by the government.

This appendix shows that from January 2017 to January 2019, more than 26 rights lawyers and three law firms have been penalised either by having their license suspended, cancelled or revoked by the judicial bureau. This compares to 20 cases over the period 2004-2014 and 9 cases over the period 2014-2016. It is clear that these administrative measures are part of an increasingly repressive political environment that harasses and punishes human rights lawyers for the exercise of their rights and their efforts to protect the rights of others. 

We therefore recommend that the Special Procedures take the following steps:

  • Analyse the text of the Measures on the Administration of Law Firms and Administrative Measures for the Practice of Law by Lawyers, as well as their application and impact in practice;
  • Compare this to the UN Basic Principles on the Role of Lawyers and the obligation to protect fundamental freedoms, especially of opinion and expression;
  • Suggest revisions to the Chinese legal framework at the level of law and regulation, specifically of the Law on Lawyers (2007) and the Measures on the Administration of Law Firms (2018) and Administrative Measures for the Practice of Law by Lawyers (2016) that would bring them in line with international norms and standards;
  • Call upon the Chinese government to immediately and unconditionally nullify decisions revoking and invalidating lawyers’ licenses, which are based upon these measures and other legislation which violate their human rights, and to stop all forms of harassment, intimidation and repression of lawyers taking human rights cases.

I. Background

The Ministry of Justice (MOJ) of the People’s Republic of China adopted the Measures on the Administration of Law Firms and the Administrative Measures for the Practice of Law by Lawyers in 2008 and amended both in 2016[1]. The MOJ amended the Measures on the Administration of Law Firms again in December 2018.[2]

Our organisations, and lawyers working on the ground, assess that these amendments seek to undermine the independence of lawyers and law firms and threaten the right to a fair trial and equality before the law by restricting lawyers from fulfilling their legal duties to their clients. The measures contain targeted restrictions on lawyers’ rights to freedom of religion, expression, peaceful assembly, and association. These provisions violate China’s Constitution, specifically Article 35, which guarantees the right to freedom of speech, the press, assembly, association, procession, and demonstration. They also deny lawyers the right to just and favourable conditions of work.

Over the past decade following the 2007 amendments to the Lawyers’ Law, there have been other changes to the legal framework governing the practice of law. For example, in 2017, China released rules on lawyers’ access to imprisoned or detained individuals, replacing provisional rules released in 2004, and expanded access to legal aid. However, despite these efforts and China’s stated intent to improve the functioning and professionalism of the legal and judicial professions, such changes have resulted in minimal positive changes for primarily commercial lawyers.

Chinese judicial authorities also exert influence over the legal profession through the application of the Measures for the Annual Inspection and Assessment for Law Firms (2010).[3] Nominally a procedure to ensure that legal professionals meet minimum criteria of competence and ethics, this system is another means of facilitating political interference into lawyers and law firms by state and Party apparatus. These measures provide authorities with the power to deny, temporarily or indefinitely, the right to practice to lawyers without reasonable and effective avenues for appeal. 

The specific measures cited in this submission, reinforced by the sanctioning effect of the annual inspection process, clearly target human rights lawyers. They have the concrete effect in practice of restricting lawyers from exercising their professional duties in defending rights of clients and also restrict or create administrative and possibly criminal sanctions for the use of certain tactics common amongst human rights lawyers. In other words, the measures restrict the right of lawyers to defend the rights of themselves or others (particularly human rights defenders), and also restrict lawyers’ rights to freedom of expression, belief, association and assembly.

In some cases explicitly using the two measures as grounds, Chinese authorities have used the annual inspection system to threaten and punish lawyers and law firms that they view as uncooperative in handling sensitive cases, such as those concerning freedoms of religion or speech. The authorities may delay announcing the result of annual inspection or suspend or even ban lawyers from participating in the annual inspection. As this precludes them from taking on cases, the lawyers and law firms concerned experience great financial and social pressure.[4]

The timing of the amended measures, and the increased abuse of the annual inspections process, must also be viewed in the context of the 2015 crackdown on human rights lawyers and legal activists that had been widely criticized.[5] Following a number of criminal prosecutions of lawyers in August 2016 as a part of the crackdown, the Ministry of Justice announced the amended measures on lawyers and law firms in September 2016, to go into effect in November, which contained numerous provisions that touched on issues raised during the crackdown, effectively legalizing the precedents created by the crackdown.

Combined, these three measures on the administration of law firms, practice of law by lawyers, and the annual inspection have become a powerful tool to intimidate human rights lawyers and law firms and obstruct them from independently exercising their profession and their individual rights.

Lawyers say the administrative measures have a direct impact on their rights to practise and their freedom of speech. One gave the example of the joint signature campaign which called for the release of detained lawyer Li Yuhan (subject of WGAD Opinion No. 62/2018) in November 2017, which was signed by 85 lawyers and ordinary citizens. After the campaign, the authorities summoned a number of lawyers who signed and warned that their action had already violated the new measures and could lead to a six-month suspension of their memberships at the local lawyers’ association – a requirement for the practice of law in China.

This limitation on the ability to practice the legal profession— including through direct sanctions such as suspension or cancellation of a license to practice— is paramount to intimidation and has serious consequences. For clients, especially human rights defenders, they face a lack of independent legal representation if their lawyer has been intimidated, dismissed, or disbarred for representing them. For lawyers, it can be very hard to find law firms willing to employ him/her; however, without employment, a lawyer’s license to practice can be invalidated after six months.[6] This results not only in a more unstable environment for the practice of law to defend individuals’ rights, but acutely impacts the livelihoods and mental and emotional well-being of lawyers and their families.

The newly-added provisions under the Administrative Measures exacerbate reprisals already taken against human rights lawyers since President Xi Jinping came to power, including through the so-called ‘July 9’ or ‘709’ crackdown. These measures are particularly directed at individuals identified as human rights lawyers. They enshrine in legislation action often taken by law firms, lawyers associations, and authorities against lawyers that represent ‘politically sensitive’ clients. The measures serve as a stern warning to law firms to keep their lawyers in line or face penalties and for lawyers to drop such cases or risk their jobs.

II. Detailed elements of the Measures on the Administration of Law Firms and Administrative Measures for the Practice of Law by Lawyers:[7]

The substance of the two measures gives significant rise for concern, as they:

1. Tighten ideological control over law firms through the introduction of Party influence and surveillance of law firms and lawyers, including the obligations to

  • ‘[support] the leadership of the Communist Party of China and the socialist rule of law as the basic requirements for its practice’ (2016), amended in 2018 to state:
  • ‘Law firms shall adhere to guidance of Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era, adhere to and strengthen the comprehensive leadership of the Party over the work of lawyers, persist in preserving the authority and uniform leadership of the Party with Comrade Xi Jinping as its core, make support for the Party’s leadership and support for socialist rule of law basic requirements for the profession, and increase the conscientiousness and resoluteness with which lawyers as a group walk the path of socialist rule of law with Chinese characteristics’. (Measures on Law Firms, Art. 3)
  • ‘Lawyers shall have supporting the leadership of the Chinese Communist Party and supporting the socialist rule of law as the basic requirement of practice.’ (Lawyers, Art. 2)
  • ‘establish a Party organisation… and support [its] activities… and participation in the law firm’s decision-making and management’ as of 2016, changed in 2018 to read:
  • ‘Law firms shall strengthen Party establishment, giving full play to the roles of Party organizations as citadels and Party member lawyers as an exemplary vanguard. Where law firms have 3 or more official Party members, they shall establish a Chinese Communist Party organization on the basis of the Chinese Communist Party Constitution … Those that do not possess the capacity for independently establishing Party organizations shall carry out Party work through means such as jointly establishing Party organizations or having higher level Party organizations Party establishment guidance personnel, and promptly establishing a Party organization when there is capacity. Law firms shall establish and improve Party organizations’ participation in law firm’s decision-making and management operations mechanisms, to provide space, personnel, expenses, and other support for the Party organizations’ carrying out activities.’ (Measures on Law Firms, Art. 4)
  • Include in their charters ‘The formal setup, position and function, duties and powers of Law firms’ Party organizations, and Party organizations participation in the firm’s decision-making and management operations mechanisms, measures for ensuring the Party establishment, and so forth;’ (Measures on Law Firms, Art. 16.11 as revised in 2018)
  • ‘regulate acceptance procedures and direct and oversee lawyers’ handling of major and difficult cases’ (Measures on Law Firms, Art. 49)

2. Strengthen supervision by law firms of lawyers employed by them, which in practice includes being responsible for monitoring lawyers’ freedoms of expression, belief, assembly and association, including with regard to:

  • ‘organizing involved parties in cases or others to go to judicial organs or other government institutions to disrupt public order’, including through peaceful assembly and expression in the form of ‘sit-ins, holding banners of placards, shouting slogans, expressing solidarity, or looking on’ (Law Firms, Art. 50.1 and Lawyers, Art.37)
  • ‘maliciously speculat[ing]’ about cases through ‘distorted or misleading… commentary’, which has been cited as including, in some instances, defence attorney assertions as to their client’s innocence (Law Firms, Art. 50.2 and Lawyers, Art. 38.2)
  • using methods such as online dissemination of information and joint open letters, or even online groups, to express solidarity or ‘slander judicial organs’, even when such information is not related to specific cases but rather, for example, these same regulations (Law Firms, Art. 50.3 and Lawyers, Art. 38.3)
  • ‘refusing to participate in courtroom proceedings… or violating court rules’, a tactic used by some lawyers to protest their lack of access to case files held by judicial authorities (Law Firms, Art. 50.4 and Lawyers,Art. 39.2)
  • ‘denying the nature of state-determined evil cults; or committing other actions that seriously disrupt court order’, effectively precluding the reasonable defence of religious minorities such as Falun Gong practitioners (Law Firms, Art. 50.5 and Lawyers, Art. 39.3)
  • Disseminating materials or making statements that endanger the fundamental political rule or basic principles of the Constitution or that ‘endanger national security’; using the Internet or media to express dissatisfaction with the Party or the government; inciting or participating in any organisation endangering national security, or supporting, participating in or committing any activity endangering national security (Law Firms, Art. 50.6 and Lawyers, Art. 40)

3. May require law firms to dismiss lawyers for conduct such as speaking online or commenting about cases publicly, or having supporters who stage public demonstrations to show solidarity with defendants in cases of political persecution

  • Law Firms, Art. 43 and Art. 51

4. allow for the revocation of law firms’ license if they do not take action to sanction lawyers as in (3)

  • Law firms can have their license revoked if they are unable to meet the conditions and requirements of the measure (Law Firms, Art. 39)

5. give the judicial bureau, which is a local extension of the executive branch, extensive powers to suspend, cancel or revoke the license of lawyers and or law firms

  • ‘Where lawyers have any of the following circumstances, the organ in their practice area that originally verified and issued their practice certificate is to recall and cancel their Lawyers’ practice certificates… Where they have been released from their employment contract with their law firm or the law firm has been deregistered, and they have not been hired by another law firm within 6 months.’ (Lawyers, Art. 23.4)
  • ‘Where lawyers violate the relevant provisions of these Measures, [the judicial authorities shall] follow the Law on Lawyers and relevant provisions and rules to pursue legal responsibility…’ namely the application of articles 47-49 of the Law on Lawyers. (Lawyers, Art. 53) In sum, this allows for three- and six-month suspension of and revocation of lawyers’ licenses as administrative sanction for a broader range of activities or behaviours than envisioned in the Law.
  • ‘Higher-level judicial organs shall conduct daily supervision and management of the practice activities of law firms within its administrative region… if in the conduct of this supervision the relevant organ discovers problems with the internal management of the firm, they should issue warnings to either the individual responsible for the law firm or the individual lawyers… and recommend administrative sanctions (Law Firms, Art. 64)

III. International Human Rights Standards and the Independence of Lawyers

Provisions in the amended Measures for the Administration of Law Firms and Administrative Measures for the Practice of Law by Lawyers violate universal human rights and fundamental freedoms based on international human rights law established under:

  • Charter of the United Nations (ratified by China on 28 September 1945);
  • UN Universal Declaration on Human Rights (UDHR) (adopted by the UN General Assembly on 10 December 1948);
  • Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) (signed by China on 17 July 1980, ratified on 4 November 1980);
  • International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) (acceded to by China on 29 December 1981);
  • Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (CAT) (signed by China on 12 December 1986, ratified 4 October 1988);
  • Convention on the Rights of the Child (CRC) (signed by China on 29 August 1990, ratified 2 March 1992);
  • International Covenant on Economic, Social and Cultural Rights (ICESCR) (signed by China on 27 October 1997, ratified 27 March 2001);
  • International Covenant on Civil and Political Rights (ICCPR) (signed by China on 5 October 1998, but never ratified);
  • Convention on the Rights of Persons with Disabilities (CRPD) (signed by China on 30 March 2007, ratified 1 August 2008);
  • and norms established by the Basic Principles on the Role of Lawyers (Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba 27 August to 7 September 1990).

As a UN Member State, the Chinese government is expected to abide by the UN Charter, which requires Members to pledge themselves to take “joint and separate action” to create “universal respect for, and observance of, human rights and fundamental freedoms” (UN Charter, Art. 55-6,). China should promote respect for and observe the human rights standards in the UDHR as Member State.

As a signatory to the ICCPR, China is obliged to refrain from acts which would defeat the object and purpose of the convention.[8] China is obliged to implement the CEDAW, ICERD, CAT, CRC, ICESCR, CRPD, and undergoes periodic reviews by the relevant treaty bodies. Under international norms regarding the Basic Principle on the Role of Lawyers, lawyers have the same rights as citizens to freedom of expression, belief, assembly, and association. China is also currently a member of the Human Rights Council and under GA Resolution 60/251 is expected to “uphold the highest standards of human rights” and to fully cooperate with Council, such as the Council-appointed Special Rapporteur on the independence of judges and lawyers. The request by the Special Rapporteur for a visit to China has been outstanding since 2011, despite reminders sent in 2013, 2014, and 2015.[9]

Furthermore, China as a member of the Human Rights Council has adopted by consensus several resolutions related to the independence of judges and lawyers, most recently on 22 June 2017[10]. This resolution raises concern ‘about the significant number of attacks against lawyers and instances of arbitrary or unlawful interference with or restrictions to the free practice of their profession’ and calls on States to ‘ensure that any attacks or interference of any sort against lawyers are promptly, thoroughly and impartially investigated and that perpetrators are held accountable’. This includes clearly ‘situations where the entry into or continued practice within the legal profession is controlled or arbitrarily interfered with by the executive branch, with particular regard to abuse of systems for the licensing of lawyers’.

The Measures for the Administration of Law Firms and Administrative Measures for the Practice of Law by Lawyers in China violate rights to equality before the law and a fair trial and the freedoms of thought, conscience, and religion; opinion and expression; peaceful assembly and association; and the right to just and favourable conditions of work, all spelt out in the above treaties and normative documents and resolutions.

  1. Right to a fair trial and equality before the law (UDHR Art. 10-11; ICCPR Art. 14, 26, ICERD Art. 5; CEDAW Art. 15, CAT Art. 13, 14; CRC Art. 37d, 40; CRPD Art. 13-4)

The right to a fair trial and equality before the law are guaranteed by the UDHR and the ICCPR. The UDHR enshrines that ‘Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal,’ (Art. 10) and that defendants must have access to ‘all the guarantees necessary for his defence’ (Art. 11), which the ICCPR describes as requiring ‘adequate time and facilities for the preparation of his e.fence and to communicate with counsel of his own choosing’. (Art. 14) Other treaties that China has signed and is obligated to uphold include provisions on an independent judiciary, fair trials, and equality before the law. The Basic Principles on the Role of Lawyers stresses that ‘Governments shall ensure that lawyers are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference’ (para 16a).

Provisions in the two measures on law firms and lawyers establish political interference in the legal profession which is incompatible with China’s international human rights obligations. The Measures for the Administration of Law Firms, revised in 2016 and in December 2018, further interfered in the independence of lawyers by stipulating that law firms must “make support for the [Chinese Communist] Party’s leadership and for socialist rule of law basic requirements for the profession” in addition to other problematic provisions added in the 2018 revisions that insert political language into the regulations.

Furthermore, under Article 4, law firms must either establish a Chinese Communist Party cell or carry out Party work, which must be included in the law firm’s charter (Law Firms, Art. 16) The Administrative Measures for the Practice of Law by Lawyers requires lawyers to ‘support the leadership of the Communist Party of China’ (Article 2).

Such provisions undermine the independence of the legal and judicial systems by inserting political interference into law firms and the practice of law by lawyers. They also run counter to recommendations made to China by treaty bodies in recent years. The Committee on the Elimination of Discrimination Against Women expressed concern about political interference in the judiciary in its 2014 Concluding Observations and called on China to ‘establish the independence of judiciary inter alia, by preventing all forms of interference with the judiciary by the political branch of the State party.’[11] The Committee on Economic, Social and Cultural Rights expressed similar concern during its 2014 Concluding Observations, and urged China ‘to take all necessary legislative and administrative measures to guarantee the full independence and impartiality of the judiciary.’[12] The Committee Against Torture expressed concern in its 2015 Concluding Observations about the potential of political [Chinese Communist Party] bodies interfering in judicial affairs.[13]

In July 2015, 5 UN Special Procedures stressed why lawyers must be able to practice law independent from political inference in regards to the unfolding crackdown against lawyers (also called the ‘709 Crackdown’), reminding the Chinese government that ‘as one of the three main actors of an independent justice system, lawyers have an essential role to play in protecting human rights, in particular due process and fair trial guarantees, and ultimately contribute greatly to ensuring respect for the rule of law.’[14]

  • Freedom of thought, conscience, and religion (UDHR Art. 18; ICCPR Art. 18)

Article 18 of the UDHR and the ICCPR grants the right to freedom of thought, conscience and religion. The ICCPR states that ‘No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice,’ and that limitations on that right are must be ‘prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others’.

The two measures stipulate that law firms must ensure that lawyers, and lawyers themselves ‘must not deny the national designation of an evil cult’ (Law Firms, Art. 50.5; Lawyers, Art. 39.3), a phrase which alludes primarily to members of Falun Gong, a spiritual movement which the Chinese communist Party banned in April 1999, but has also been used to describe members of Christian house churches (non-State registered churches). Such a provision denies certain religious minorities the right to mount a legal defence of their right to freedom of religion. It also denies lawyers their own right to religious freedom while working in the legal profession.

The designation of Falun Gong or non-State registered Christian churches as ‘evil cults’ and legal limitations on their practitioners exercising the right to freedom of religion and belief does not meet the standards as laid out in the ICCPR. The Special Rapporteur on freedom of religion and belief has repeatedly raised cases of Falun Gong practitioners in communications to the government of China and spoke out against small communities like Falun Gong being described as ‘cults’ in a 2010 speech to the General Assembly.[15]

  • Freedom of opinion and expression (UDHR Art. 19; ICCPR Art. 19)

The right to freedom of opinion and expression and to seek, receive and impart information and ideas through any media are enshrined in Article 19 of the UDHR and the ICCPR. Under the ICCPR, this right is subject to certain restrictions, but they must be ‘provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order, or of public health or morals.’ The Basic Principles on the Role of Lawyers stress that ‘lawyers like other citizens are entitled to freedom of expression’ (para. 23).

The two measures on lawyers and law firms restrict lawyers from exercising their right to freedom of expression in a manner that goes beyond the lawful and necessary restrictions allowed under international human rights law and norms. Under the two measures, law firms must prohibit lawyers from ‘maliciously hyping a case’ (Law Firms,Art. 50.2) and ‘generating pressure through public opinion…by, among other means, forming groups, organizing joint signature campaigns, issuing open letters, gathering online in chat groups, or expressing solidarity [with involved parties] in the name of/under the pretext of studying and discussing individual cases.’ (Law Firms,Art. 50.3), while lawyers must not engage in‘Conduct distorting or misleading publicity and commentary on cases that they or other lawyers are currently handling, maliciously stirring up the case’ (Lawyers,Art. 38.2).

Lawyers in China have been accused of ‘hyping a case’ or ‘stirring up a case’ when they disagree with the State’s case, argue publicly that their client is innocent, and/or argue that the case is politically motivated and contrary to rule of law.[16] Human rights lawyers have posted copies of complaints, defence statements, and legal opinions online, conduct which is now prohibited by these measures.[17] In reaction to the publication of the measures on law firms, which were drafted without public consultation, over 100 lawyers signed a joint statement calling for its repeal, conduct which can be penalised under the measures.[18]

The two measures also penalise lawyers for ‘refusing to participate in courtroom proceedings… or violating court rules’ (Law Firms, Art. 50.4; Lawyers,Art. 39.2), a prohibition based on a tactic used by some human rights lawyers who have quit proceedings in protest of their lack of access to case files held by judicial authorities and/or judges unlawfully restricting them from speaking to mount a defence of their client.[19]

The measures create the legal justification to punish lawyers on vague accusations of endangering national security, holding different political opinions, or criticising the government (whether professionally or personally). Law firms are required to prohibit lawyers from ‘disseminating or spreading words that endangers the fundamental political rule or basic principle in the Constitution or endangers national security, inciting people’s irritation against the Party and the government by using the Internet and mass media, inciting or participating in any organisation endangering national security, or supporting, participating in or committing any activity endangering national security’ (Law Firms,Art. 50.6). Lawyers also face similar  prohibitions, in that ‘they ‘must not speak to deny the fundamental political system and basic principles enshrined in the Constitution, or endanger national security; must not exploit the Internet and media to provoke dissatisfaction with the Party and government, provoke the establishment or participation in groups endanger national security, or support, participation, or carrying out of activities that endanger national security…’ (Lawyers,Art. 40).

Under China’s Constitution, the Chinese Communist Party is enshrined as the leader of the country, and thus any criticism of the Party or its policies would be prohibited by these provisions. Furthermore, ‘endangering national security’ is a legally nebulous term in Chinese law and extends to restrict legitimate human rights activities. The UN High Commissioner for Human Rights expressed deep concern about China’s National Security Law ‘due to its extraordinarily broad scope coupled with the vagueness of its terminology and definitions’.[20] In a statement about China’s crackdown on lawyers, the High Commissioner said, ‘I regret that more and more Governments around the world are using national security measures to restrict the rights to freedom of expression, association and peaceful assembly, and as a tool to target human rights defenders and silence critics’.[21]

Cases cited in the appendix include lawyers punished under these measures for their speech in court or online protesting unlawful court proceedings against their client, publicising accusations that their client had been tortured, and social media posts calling political leaders corrupt and criticising the government’s persecution of lawyers.[22]

  • Freedom of peaceful assembly and association (UDHR Art. 20; ICCPR Art. 21-2)

Under Article 20 of the UDHR, everyone has the right to freedom of peaceful assembly and association. The ICCPR states that the only restrictions placed on the right to peaceful assembly must be ‘imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others’ (Article 21). The only restrictions allowed on the right to freedom of association under the ICCPR must be ‘prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others’. Again, we emphasise that the Basic Principles on the Role of Lawyers stress that lawyers ‘like other citizens are entitled to freedom of association and assembly’ (para. 23).

The two measures on lawyers and law firms restrict lawyers from exercising their right to freedom of peaceful assembly and association in a manner that goes beyond the lawful and necessary restrictions allowed under international human rights law and norms. Law firms must prohibit lawyers from ‘inciting, instigating, or organizing involved parties in cases or others to go to judicial organs or other government institutions to disrupt public order and using illegal means that among other actions, conducting sit-ins, holding banners or placards, shouting slogans, expressing solidarity [with involved parties], or looking on, as gathering a crowd to provoke trouble and exerting influence pressuring on relevant departments.’ (Law Firms,Art. 50.1); and ‘gathering a crowd to cause a noisy disturbance or disrupting a courtroom…’ (Law Firms, Art. 50.5).

Under the measures on the practice of lawyers, similar prohibitions exist: ‘Lawyers…must not instigate, incite, and organize parties or other persons to go to judicial organs or other relevant State organs for sit-ins, raising protest signs, unfurling banners, shouting slogans, vocalizing support, looking on, or other methods that disrupt public order and endanger public safety, gathering crowds to make a disturbance, creating an impact and pressuring relevant departments’ (Lawyers,Art. 37), ‘Using methods such as aligning groups, collecting signatures, publishing open letters, organizing online gatherings or support, or, in the name of individual case discussion, creating pressure from public opinion or attacking or disparaging judicial organs and the justice system’ (Lawyers,Art. 38.3).

Lawyers and activists have been accused of ‘disrupting court order’ or ‘inciting subversion of state power’ over peaceful assemblies outside of courthouses protesting at an injustice in the case being heard.[23]Furthermore, lawyers could be penalised for the actions of others who decide to protest outside a courthouse under these provisions. Several individuals in the ‘709 Crackdown’ had been accused of ‘inciting’ or ‘organizing’ individuals to ‘disrupt court order’ and these measures appear to be a legal extension of the crackdown.

China’s Law on Assemblies (1989) does not comply with the necessity test laid down in ICCPR Article 21, as it bans all assemblies based on political reasons if they oppose the Communist Party or its policies (Art. 12). The measures are also contrary to recommendations made by CAT in its 2015 Concluding Observations, when the Committee called on China to ‘stop sanctioning lawyers for actions taken in accordance with recognized professional duties, such as legitimately advising or representing any client or client’s cause or challenging procedural violations in court, which should be possible without fear of prosecution under national security laws or being accused of disrupting the court order’.[24]

  • Freedom of just and favourable conditions of work (UDHR Article 23; ICESCR Article 7)

Under the UDHR and ICESCR, everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment, including lawyers.

The restrictions on the lawyers and law firms interferes with lawyers right to just and favourable conditions of work. 26 lawyers and three law firms have been administratively sanctioned since September 2017 over their representation of human rights cases or exercising their human rights, with as a result the loss of position, career and/or livelihood.  

IV. Appendix

According to statistics provided by the China Human Rights Lawyers Concern Group (CHRLCG), as of January 2019, a total of 26 human rights lawyers and 3 law firms have been subjected to administrative sanctions, such as invalidation or revocation of their license. Of those, four lawyers and two law firms had the 2016 administrative measures explicitly cited in the notice of their punishment. Though the measures may not be cited in all of the 26 cases, it is clear they are part of the repressive environment for lawyers created by the Chinese government. Additionally, 17 of the affected lawyers were those implicated in the 709 crackdown or defence lawyers who handled 709 cases. Furthermore, three law firms had their licenses invalidated or revoked.

Appendix


[1] Notably, the Ministry of Justice did not solicit public comments for the amended measures, violating Article 14 of the Regulations on Procedures for the Formulation of Rules (2002) which call for ‘a wide range of expert opinions and comments’. Ministry of Justice, “Measures for the Administration of Law Firms” (律师事务所管理办法), 2008, revised 2016, revised 2018, http://www.gov.cn/gongbao/content/2016/content_5109321.htm; Ministry of Justice, “Administrative Measures for the Practice of Law by Lawyers” (律师执业管理办法), 2008, revised 2016, http://www.gov.cn/gongbao/content/2016/content_5113014.htm. Unofficial English translation from China Law Translate: https://www.chinalawtranslate.com/en/%E5%BE%8B%E5%B8%88%E6%89%A7%E4%B8%9A%E7%AE%A1%E7%90%86%E5%8A%9E%E6%B3%95/;

[2] Ministry of Justice Decision on Revising “Measures for the Administration of Law Firms” (司法部关于修改《律师事务所管理办法》的决定), December 5, 2018; http://www.moj.gov.cn/government_public/content/2018-12/13/gggs_44271.html; unofficial English translation from China Law Translate: https://www.chinalawtranslate.com/en/%E5%8F%B8%E6%B3%95%E9%83%A8%E5%85%B3%E4%BA%8E%E4%BF%AE%E6%94%B9%E3%80%8A%E5%BE%8B%E5%B8%88%E4%BA%8B%E5%8A%A1%E6%89%80%E7%AE%A1%E7%90%86%E5%8A%9E%E6%B3%95%E3%80%8B%E7%9A%84%E5%86%B3%E5%AE%9A%EF%BC%88/

[3] The 2007 amendments to the Lawyers Law created the “annual inspection”, which requires law firms to assess the performance of their lawyers annually and submit the results to the Ministry of Justice. The measures for annual inspections states that all lawyers have to participate in the annual assessment held by their firms under the oversight of the judicial administrative authorities. The annual inspection period is held between March and May each year. (Article 15). The practice also includes the targeting of law firms themselves— firms are assessed on whether they “adhered to the Constitution and laws, carried out their legal obligations and managed themselves responsibly” (Article 6).

[4] Although currently there are no laws banning lawyers who have not passed the annual inspection from practicing, in reality the police, prosecutors and judicial authorities always obstruct lawyers who have failed to pass from handling cases.

[5] Lawyers need to be protected not harassed” – UN experts urge China to halt detentions, July 16, 2015, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=16241&LangID=E ; UN Committee Against Torture, Concluding observations on the fifth periodic report of China, December 9, 2015, paras.18-9; UN Human Rights Chief deeply concerned by China clampdown on lawyers and activists,” February 16, 2016, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=17050&LangID=E ; Joint Urgent Appeal from Special Procedures, UA CHN 3/2017, https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=22996 ; OHCHR, “Press briefing notes on China – Spokesperson for the UN High Commissioner for Human Rights: Ravina Shamdasani,” May 5,2017, https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=21587&LangID=E

[6] According to Article 23 of Administrative Measures for the Practice of Law by Lawyers, if a lawyer is dismissed by the incumbent law firm and not employed by a registered law firm for over 6 months, his or her legal practice license will be invalidated.

[7] Please note that the English translations of the measures are an unofficial translation from China Law Translate

[8] Article 18, Vienna Convention on the Law of Treaties. China ratified the Vienna Convention on 3 September 1997. 

[9] OHCHR, View Country visits of Special Procedures of the Human Rights Council since 1998, http://spinternet.ohchr.org/_Layouts/SpecialProceduresInternet/ViewCountryVisits.aspx?Lang=en.

[10] A/HRC/RES/35/12, http://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/35/L.20   

[11] CEDAW/C/CHN/CO/7-8, paras. 14-15

[12] E/C.12/CHN/CO/2, para. 10

[13] CAT/C/CHN/CO/5, paras. 22-23

[14] “Lawyers need to be protected not harassed” – UN experts urge China to halt detentions , July 16, 2015, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=16241&LangID=E

[15] Statement by Heiner Bielefeldt, Special Rapporteur On Freedom Of Religion Or Belief, 65th session of the General Assembly Third Committee, Item 68 (b), 21 October 2010, New York, https://www.ohchr.org/Documents/Issues/Religion/GA65statement_2010.pdf.

[16] See, for example, articles from the official State and CCP mouthpieces on the “709 Crackdown” on lawyers. People’s Daily, “Public Security Ministry Uncover Dark Secrets of “Rights Defence” (公安部揭开“维权”事件黑幕), July 11, 2015; Xinhua News Agency, “Fresh details reveal seized lawyers’ misconduct in, outside court,” July 19, 2015, http://www.chinadaily.com.cn/china/2015-07/19/content_21322630_3.htm .

[17] CHRD, “Revised Measures on Law Firms Further Curb Independence of Chinese Lawyers,” October 6, 2016, https://www.nchrd.org/2016/10/chrb-revised-measures-on-law-firms-further-curb-independence-of-chinese-lawyers-921-103-2016/.

[18] CHRD, “Revised Measures on Law Firms Further Curb Independence of Chinese Lawyers,” October 6, 2016.

[19] See, for example, the proceedings of activist Xu Zhiyong and Zhao Changqing in January 2014, and lawyer Sui Muqing over his defence of Ding Jiaxi (subject of WGAD Opinion No. 3/2015). CHRD, “Travesty of Justice – Beijing’s Show Trials of Civil Society Leaders Xu Zhiyong, Zhao Changqing, & Others,” January 23, 2014, https://www.nchrd.org/2014/01/travesty-of-justice-beijings-show-trials-of-civil-society-leaders-xu-zhiyong-zhao-changqing-others/; CHRD, “China Strips Rights Lawyers’ Licenses in Reprisal Against Their Push for Rule of Law,” January 24, 2018, https://www.nchrd.org/2018/01/china-strips-rights-lawyers-licenses-in-reprisal-against-their-push-for-rule-of-law/.

[20] UN human rights chief says China’s new security law is too broad, too vague, July 7, 2015, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=16210&LangID=E

[21] UN Human Rights Chief deeply concerned by China clampdown on lawyers and activists, February 16, 2016, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=17050&LangID=E

[22] Lawyers Sui Muqing and Wu Youshui. CHRD, “China Strips Rights Lawyers’ Licenses in Reprisal Against Their Push for Rule of Law,” January 24, 2018,

[23] See for example, the case of Wu Gan, https://www.nchrd.org/2016/03/wu-gan/; and the crackdown on activists in Suzhou, https://www.nchrd.org/2017/03/chrb-detentions-in-suzhou-new-measures-curb-free-expression-320-23-2017/

[24] CAT/C/CHN/CO/5, paras. 18-9