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Standardize Lawyers Association Elections: One Step toward Democratic Rule of Law

April 1, 2009

Li Fangping

Through the story of the 2008 annual congress of the state-controlled All China Lawyers Association (ACLA)—which was held without proper notification to its members and “elected” its directors and representatives without disclosing the results or the election procedures—one of China’s most well-known rights defense lawyers highlights the imperative to formulate and defend election rules.

Just after assuming the office of Minister of Justice in 1993, Mr. Xiao Yang began the Reform of the institution of Chinese lawyers. Two years later, the Beijing Lawyers Association set the precedent for lawyers associations by establishing the self-regulatory administrative mechanism of selecting a professional lawyer as its president. In 1998, after the central government forcefully banned administrative officials from also holding posts in social organizations, lawyers associations across the country accelerated their transition to self-regulation. In 2000, the Guangzhou Lawyers Association became the first association to place a professional lawyer in the office of secretary general, who is responsible for handling the association’s day-to-day internal affairs. The Shenzhen Lawyers Association (SLA) set a precedent in 2003 by holding a competitive election in which lawyers’ representatives directly elected the Association’s president. Ten years have passed now, and our country’s legal professionals have already entered the express lane toward self-regulation.

Chinese lawyers have, using their voices and actions, become a driving force in the construction of a society under the rule of law.

The past five years have been a time of awakening of the consciousness of civil rights in our country, and a time of lives being changed by citizens’ actions. As professional legal workers whose job it is to defend the lawful rights and interests of citizens, lawyers themselves are a civil group that has the highest consciousness of rights, interests, and rights defense. If we look back to the American Civil Rights Movement in the 1960s, we see that American lawyers persevered in their challenges to the legal system’s discrimination against African- Americans, and were finally able to achieve improvements in the judicial system. Similarly, Chinese lawyers have, using their voices and actions, become a driving force in the construction of a society under the rule of law. They have done so by actively participating in cases such as the Road Maintenance case,1 the Xu Ting case,2 cases against workplace discrimination and administrative fiat, and other public interest cases, using public interest suits, legal aid, citizens’ proposals, etc. This is an era of public participation, and there have been changes in lawyers’ thinking and viewpoints. However, the internal administration of the legal profession in China has not moved forward, kept up with the times, or met the needs, aspirations, and thinking of the legal community. 2008 was the year that lawyers associations across China changed terms, and thus it was inevitable that it became a tumultuous year for lawyers association elections.

On June 23, 2008, the media broke the story of the Ningxia Lawyers Association election scandal.3 During the competitive election of the managing directors of the Seventh Lawyers’ Representatives Congress, two candidates favored by the leadership lost. After some machinations and persuasion, the Congress presidium held another election and the designated candidates were elected. Seeing this, Yang Jinzhong, then the Vice President of the Ningxia Lawyers Association and member of the Communist Party, walked out angrily. Later, in an interview with the press, he said, “The cheating was so blatant, it was unbearable!”

[T]he internal administration of the legal profession in China has not moved forward, kept up with the times, or met the needs, aspirations, and thinking of the legal community.

On August 26, 2008, 35 Beijing lawyers, including Cheng Hai, Zhang Lihui, and Tang Jitian, posted an online appeal openly calling for direct elections in the Beijing Lawyers Association (BLA) and drafted a set of proposed election procedures. On September 5, the BLA posted a “Stern Statement” in response on their official website, harshly denouncing the lawyers: “They are using the [upcoming] new term of the Beijing Lawyers Association as an opportunity . . . [they] are essentially attempting in vain to break away from the supervision and guidance of the judicial administrative organ 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.”4

The Stern Statement escalated the matter into a political issue, and had a great ripple effect, quickly transforming an internal matter of the BLA into a public incident, attracting the broad attention and concern of different circles of society.

In order to resolve misunderstandings, the lawyers’ representatives in favor of direct election for the BLA requested a meeting with the leaders of the Beijing Judicial Bureau to open a line of communication. On September 13, four lawyers’ representatives—Cheng Hai, Zhang Lihui, Li Subin, and Wu Hongwei—met with Dong Chunjiang, deputy director of the Beijing Judicial Bureau, and Xiao Lizhu, head of the Bureau’s lawyers management division, for a one-and-a-half hour long exchange. Though the two sides had different opinions on how to implement democratic elections for the BLA, the atmosphere was amicable and they managed to find common ground on many points.

On October 25, 2008, the Seventh All China Lawyers’ Representatives Congress held an election for a new term. As a major election in the lawyers’ community, the All China Lawyers Association (ACLA) should have vigorously publicized the event and mobilized its forces to attract more highly qualified lawyers with a strong will to serve to take part in the election of the lawyers’ representatives. In reality, however, the preparation was made behind closed doors. Via an internal notice, the ACLA asked local lawyers associations to recommend and choose their representatives, and did not publish the “Notice on Convening the Seventh All-China Lawyers’ Representatives Congress” on its official website.

Other issues have also come under question by national members of the ACLA. For example, the only news from the ACLA regarding the event—which was published only two days before the Congress’s opening—was old news about convening the Representatives’ Congress in general. No one knew anything about the preparation process or if and when the Congress would be convened. Most members heard about the Congress after it was already underway. After the Congress concluded, the list of the representatives and directors of the All China Lawyers’ Representatives Congress was also not posted on the website. And members of the Association knew nothing about the election procedures.

The ACLA election incident has caused great concern within the legal profession about the future of its self- governance.

The ACLA election incident has caused great concern within the legal profession about the future of its self-governance. The behind-closed-doors preparation and election ignoring the rules not only affected lawyers’ approval of the ACLA, but also, in a larger and more profound sense, undermined society’s confidence in the rule of law. Fortunately, opportunities for change are always born of crises. For example, after the direct election of the SLA president, lawyers asked the president to resign. Following this, the SLA’s representatives, directors, and [new] president, together with numerous members, have gradually improved the association’s internal democratic governance through intense debates, further consolidating the self-regulation of the profession.

What is regrettable is that for elections of representatives in lawyers associations across the country, there are almost no rules to follow. Take the ACLA and BLA as examples. On July 22, 2005, the second meeting of the managing directors of the Sixth ACLA passed the “2005-2008 Work Plan of the ACLA.” Article three, section nine of the “Work Plan” sets forth organizational rules such as: “Increase the amount of research on the regulations of the organization, further improve the rules for the organization of the profession, research and draft the Rules for the Election of the All-China Lawyers’ Representatives Congress.” On February 25, 2006, the Second Lawyers’ Representatives Congress of the Seventh BLA passed the (Provisional) Rules for the Lawyers’ Representatives Congress of the Beijing Lawyers Association. Article 17 of the BLA Rules states, “The procedures for electing lawyers’ representatives shall be regulated by the lawyers’ representatives congress.” Several years have already passed, yet election regulations and procedures have not been presented. Only when a group of Beijing lawyers demanded direct elections did the BLA hurriedly draft some slapdash election procedures. This example demonstrates what a mess the system of construction of a representative election is.

Without exaggeration, lawyers as a group have already become the vanguard of our times in the defense of one’s lawful rights and interests.

The recent election of the All-China Lawyers’ Representatives Congress is a good example of the lack of procedural consistency. Article 13 of the ACLA Constitution states: “The representatives of the All-China Lawyers’ Representatives Congress are to be elected by representatives of the lawyers’ representatives congresses at the provincial, self-autonomous region, and self-governing municipality level from individual members of the respective lawyers associations, or recommended and chosen by the directors of lawyers associations at the provincial, self-autonomous region, and self-governing municipality level from individual members of the respective lawyers associations.” Yet the method for choosing representatives has yet to be standardized, and can be broadly classified into three types:

  1. The Chongqing Model (Recommendation by Party committees): Representatives were a) nominated by the Party committee of the lawyers association and approved by the Party committee of the judicial bureau, b) viewed favorably by relevant departments such as the city’s public security bureau, procuratorate, judiciary, and state security, and c) approved by the board of directors of the lawyers association by a vote.
  2. The Shanghai Model (Selection by the managing directors): Representatives were selected by the managing directors in their eighth meeting during the Lawyers Association’s eighth session, after discussion which adhered to the principles of fairness, transparency, and impartiality.
  3. The Tianjin Model (Competitive election): During the first ad hoc lawyers’ representatives congress of the lawyers association’s sixth session, four representatives were elected from five candidates according to the number of votes cast for each candidate; stationary and mobile ballot boxes were set up within the limits of the city. The stationary ballot box was set up at the city’s lawyers association.

Many members of lawyers associations believe that the Tianjin Model is the most desirable. Member participation in that model was also high. This election method deserves to be accepted and popularized, and systematized through the formulation of election regulations. The value and significance of the legal profession are precisely to formulate, utilize, respect, and defend regulations. It can even be summarized as such: regulation is the life blood of lawyers. Only through establishing a sense of regulations can the democratization, scientification, and systematization of the lawyers associations’ internal governance take root, grow, and mature.

Notes

1. In 2006, Zhang Xiangbing, a lawyer at the Da Wen Law Firm in Changzhou City in Jiangsu Province, brought suit against the city’s Road Administration Bureau, alleging the annual “road maintenance” fee that it collected from the owner of each private vehicle was illegal. The People’s Court in Tianing District, Changzhou City, where the case was tried, ruled against Zhang. His case was evaluated by the All China Lawyers Association as one of the top ten public interest cases in 2006 in China. See “Changzhou lu shi jiaoban yanglufei ruxuan quanguo shida gongyi susong” [常州律师叫板养路费入选全国十大公益诉讼], Changzhou Wu Jin Qu Jiao Tong Ju, [常州市武进区交通局], January 16, 2007, http://www.wjjt.gov.cn/html/jtxw/2007116/oldnews945.html. ^

2. In 2006, Xu Ting, a security guard working in Guangzhou, Guangdong Province, found a faulty bank ATM that dispensed 1,000 yuan for every yuan it deducted from his bank account. Xu repeated the transaction more than 170 times within 24 hours and obtained a total of 175,000 yuan (roughly $24,500). Xu was arrested in 2007, tried by the Guangzhou Intermediate Court, and sentenced to life imprisonment. The author, along with seven other lawyers, petitioned on Xu’s behalf for a lesser sentence. In January 2008, the Guangdong Provincial High People’s Court remanded the case for a re-trial. In the new trial, Xu’s sentence was reduced to five years. See “Lu shi jiuxu Xu Ting qukuanan zhixin Quanguorenda he Zuigaorenminfayuan,” [律师就许霆取款案致信全国人大和最高人民法院], Xinhua News Agency, August 1, 2008, http://news.xinhuanet.com/legal/2008-01/08/content_7381471.htm. ^

3. In the Ningxia scandal, on December 22, 2007, during the Ningxia Lawyers Association election for the next term, 39 board members chose 11 managing directors out of 13 candidates. When the two candidates favored by the leadership lost, the congress presidium refused to announce the result. After 80 minutes’ delay, the presidium announced the vote was invalid and a revote was necessary. Representatives were persuaded to revote. In the revote, the two candidates who lost previously were voted in, and one of them even became the new director of the Ningxia Lawyers Association. See Li Jifeng [李继锋],”Ningxia luban huanjie xuanju fengbo”[宁夏律协换届选举风波], Minzhu yu Fazhi Shibao [民主与法制时报], http://news.mzyfz.com/times/a/20080623/135336.shtml; see also Yan Daqun (雁大群), “Jishige lushi weishenme nongbuhao yici xuanju” [几十个律师为什么弄不好一次选举], Jiansusheng Remin Jianchayuan Wang [江苏省人民检察院网], June 25, 2008, http://www.js.jcy.gov.cn/readnews.asp?nid=7142. ^

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 “'Stern Statement' by Beijing Bar Association.^

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