Although regulations issued in 2003 formally recognised the state's responsibility for providing legal aid, coverage remains threadbare and the government is actively encouraging 'social forces' to plug service gaps. Angela Kao reports here on the progress that has been made and the obstacles that remain, and also profiles non-profit law initiatives that are pioneering direct service provision, public education and policy advocacy.

Since the Ministry of Justice began to establish a legal aid system in 1994, legal aid centres have opened in cities across China. According to the Ministry, the number of such centres has more than tripled in the last few years, from 845 in 1999 to 2,774 in 2003. Over the same period, the number of full-time legal aid employees more than doubled (from an estimated 3,920 in 1999 to 9,457 in 2003), and government expenditure on legal aid rose from CNY 27.6 million in 1999 to CNY 164.6 million in 2003.

But these seemingly impressive figures conceal major service gaps. For the Ministry of Justice’s definitions of ‘legal aid centres’ and ‘full-time employees’ can be misleading, according to Carl Minzner of the US Congressional Executive Commission on China. Local Justice Bureaus, he points out, often establish a legal aid centre simply by putting up a new sign, with little or no real change in the Bureau’s operations. In some places, says Ford Foundation Program Officer, Titi Liu, one person might serve as head of the local Justice Bureau and head of the Legal Aid Centre while also working as a for-profit attorney.

Moreover, the number of people actually receiving legal aid has not grown at the same rate as expenditures, employees, and centres. Whilst expenditure on legal aid grew more than five-fold from 1999 to 2003, the number of people receiving legal aid only increased from around 190 thousand to 300 thousand. Despite considerable progress, experts continue to lament the shortage of funds and low access to legal aid.

But although barriers to access remain, several reform-period laws have at least formally recognised citizens’ rights to seek legal remedies through the courts and their right to legal representation. Article 42 of the Lawyers’ Law, for instance, requires for-profit attorneys to provide legal assistance to those who need it. In addition, the 1989 Administrative Litigation Law and the 1994 State Compensation Law allow plaintiffs to sue and claim compensation from government agencies. These two laws are limited in their scope, as neither allows citizens to sue the Communist Party or to challenge an administrative act. Yet both laws are generally considered to have had a positive impact, both symbolically and in a growing number of actual cases.

From the passing of the Administrative Litigation Law until 2002, the courts handled more than 810,000 administrative litigation cases, growing from 13,006 cases in 1990 to 83,942 in 2002. Although statistics are not readily available, it appears that the number of accepted state compensation cases is also growing. The number of criminal compensation cases accepted by the courts, for instance, grew from 398 in 1996 to 2,818 in 2002. Success rates for plaintiffs have ranged from thirty to forty per cent annually, leading China law scholar, James Feinerman, to affirm that legal and other reforms have undoubtedly reduced the ‘arbitrariness’ of government decisions.

Legal Aid regulations

The 2003 Regulations on Legal Aid were a major step in building the fledgling legal aid system and rule of law. Acknowledging for the first time that legal aid is the state’s responsibility, the regulations allow for legal aid applications in civil cases including claims for state compensation, social insurance, pensions for the disabled, payments for support of parents and grandparents, alimony, and unpaid wages. In criminal cases, defendants can also apply for legal aid, and courts are required to appoint lawyers to act on behalf of minors, defendants who are unable to hire legal representation because of blindness, deafness, incapacity to speak, and defendants in cases where a death sentence may be passed.

Yet legal experts still find that the regulations are weakened by caveats. Titi Liu points out that, apart from the small subset of criminal cases listed above, the regulations offer no guarantee that applications will result in representation. Implementation of the regulations is hard to measure because of the lack of systematic reporting, but Chinese sources suggest that in 2003 only around 30% of criminal defendants were represented by legal counsel, with the proportion dropping as low as 10% or less in less-developed regions. According to Liu, lawyers usually do not want to accept criminal clients, regarding criminal cases as having high-risks and low pay-offs. Cases rarely result in a straight ‘Not Guilty’ verdict, and lawyers’ reputations can be damaged by association with defendants who are found guilty.

Whilst major problems evidently remain with representation in criminal cases, representation in civil cases appears to be rising. According to the Ministry of Justice, in 1999 there were about 42 thousand criminal legal aid cases and about the same number of civil cases; by 2003, the number of civil cases accepted rose to 95 thousand by 2003, while the number of criminal cases rose only to 68 thousand. In the same year, there were 135,029 applications for legal aid in civil cases and 110,497 (81%) were approved. However, Carl Minzner points out that “The formal application for legal aid often takes place relatively late in the process of a client contacting legal aid organs.” There were, he says, nearly two million legal aid consultations in 2003, and if these were included in the total number of potential cases the approval rate would be much lower. On the other hand, statistics on approval rates may also fail to pick up legal aid activities by other institutions.

Chinese legal experts meanwhile indicate that the government lacks the funds to fully implement the regulations. The number of people needing legal aid far outweighs the government’s financial capacity. Liu nevertheless suggests that anecdotal evidence points to a rise in civil representation, especially in corporate law. In the last few years, she adds, China has seen an increase in the number of groups exposing government wrongdoing, more for-profit lawyers have started to address public interest issues, and NGOs have begun to gain government trust and impact policy with high-profile cases.

Private effort, public good

Because the state lacks the funds to provide a comprehensive service, it refers most legal aid seekers to private attorneys who are required to do pro bono work. Some of them have proved willing advocates for the poor and disadvantaged.

When a group of peasants came to Yu Meisun’s office for legal assistance in 2002 he was sympathetic, he says, because he had himself spent eight years as a peasant. He believes that economic and social marginalisation of peasants has led to increasing hostility and tension, making peasants’ problems a threat to all of society. Now he works full-time to promote the rights of rural people, while his law firm partners support his non-profit work.

Yu relates a case in July 2003 in which a local government illegally took over an area of farmland with minimal compensation. This is a common enough occurrence, Yu says, with farmers often receiving only one thirtieth, or even less, of the price that developers pay for the land. In this case, a group of peasants had protested the land-grab, but one was imprisoned and later committed suicide. No local lawyer wanted to represent the family because they did not want to oppose the local government, but Yu, based in Beijing and relatively immune to local government action, took the case on. Nevertheless, the courts refused to even consider the compensation claim he brought on behalf of the family.

Although Yu has not won cases on behalf of peasant clients, he believes that he has an important role to play as a bridge between government agencies and rural citizens. He publishes articles on rural issues and sees these as serving both awareness and mediation purposes. The government of Hebei, he says, has asked him to mediate in disputes between peasants and local governments. Yu’s colleague and vice director of his law practice, Wang Lihua, suggests that, in order for the rule of law to prevail in China, lawyers must engage in such efforts of mediation and education outside of the courtroom to change social attitudes. Yu adds that the litigation he has pursued has attracted publicity that may change legal results in the future.

Qiao Zhanxian also believes that lawyers and litigation can lead to positive outcomes despite apparent failures in court. Qiao made headlines in 2002 when he sued China’s Ministry of Railways for increasing ticket prices without first holding a public hearing. According to Qiao, the judges in the case knew that the Ministry of Railways had circumvented the law, but did not want to enter a judgment against a central government department. After thirteen months of administrative reviews and appeals the judges ruled against Qiao and his clients. Qiao believes he should have won the case from a purely legal point of view, describing the judges’ decision as like “The referee in a soccer match pretending not to notice a goal was scored.” But, he says, he did not file the lawsuit with the expectation of winning. Rather, he describes the case as “tactical,” because he knew that policy changes would probably occur whether he won or lost. And he claims that the litigation and surrounding publicity have indeed proved influential, citing a surge in public hearings convened by government departments.

Qiao has recently, like Yu, begun working on land protection for peasants. He recently brought an action against Hebei provincial government for taking land illegally but the courts have delayed the case for several months because, in Qiao’s view, they dare not uphold the complaint against the government. Although courts have risked the wrath of county, city, and urban district governments by upholding compensation claims against them, Qiao believes the courts are more reluctant to defy provincial-level authorities. But even if the courts continue to delay, says Qiao, land policy must eventually change.

Lawyers like Qiao and Yu believe they must walk the long road towards rule of law despite setbacks. Qiao resumes the soccer analogy: the result of the match may be unknowable, but he can never win if he does not play. Yu says that he asked some of his clients whether they were intimated by the power and money of their adversaries, and they responded with a resounding “No.” Since they, with all they had to lose, were not afraid, Yu had no choice but to say, “Well, then I’m not afraid either.”

NGO pioneers

Pro bono legal assistance was pioneered in China by several non-profit law centres such as Wuhan University’s seminal Centre for the Protection of the Rights of Disadvantaged Citizens, established back in 1992. The policy and legal environment still make it hard for such groups to register as independent entities, but they are able to operate out of university law faculties, and often serve the additional purpose of providing law students with practical experience of working on real cases. Although they undertake fewer cases than the state legal aid system, Titi Liu sees the centres as having an important role in taking on high-profile cases and promoting the development of law in China.

Some of the non-government centres have grown fast. The Centre for Legal Assistance to Pollution Victims (CLAPV) began with 2-3 part-time volunteers in 1998, but now employs 200 part-time volunteer lawyers who staff a telephone hotline and respond each year to more than 6,000 requests for help. According to the Centre’s Director, Professor Wang Canfa, the number of environmental law cases increased by 25% in the last year, and environmental rights committees are cropping up across the country. Another organisation, the Centre for Juvenile Legal Aid and Research, has grown from a base of three lawyers in 1999 to a network of 500 part-time lawyers throughout China. And a Constitutional and Civil Rights Centre, established at Beijing’s Qinghua University in 2003, is planning to launch a nationwide network in August, 2004.

These groups often focus on high-impact cases that can change policy. Wang Canfa says that he selects environmental cases which affect many people and involve significant sums of money so that, even if a lawsuit takes a lot of time and brings little compensation, people become more aware of their rights and companies are less likely to violate them. In 2002, for example, CLAPV brought a suit on behalf of 97 peasants in Jiangsu province, when fish in their reservoir were killed by pollutants from a chemical plant. Two years later, the court found in the plaintiff’s favour and they obtained CNY 5.6 million in compensation.

The NGOs have varying rates of success in litigation cases. Wang says that more than half of the sixty or so cases that CLAPV has pursued through the courts over the last five years have resulted in some level of compensation. Professor Tong Lihua of the Centre for Juvenile Legal Aid and Research estimates that around seventy percent of cases they handle result in compensation, while Guo Jianmei of the Centre for Women’s Law Studies and Legal Services puts their success rate at sixty to seventy percent. Professor Ge Wu of the Qinghua Centre believes that compensation rates are rising generally—about thirty percent of claims are now successful in China—and argues that litigation is the best method of educating the wider public about their rights.

But lawyers still have to contend with a judiciary that is often not well versed in law and also easily influenced by bureaucratic and personal power. Wang says that CLAPV has to marshal the most precise and thorough legal arguments so that courts have little choice but to rule in their clients’ favour. But Tong, Guo, and others lament the fact that power and money still often play a bigger role than law in judicial decisions. NGO legal aid providers thus generally believe that, in order to establish the rule of law, NGOs must not only engage in litigation, but also spend considerable effort on activities such as training, education and policy research.

CLAPV holds an annual training for fifty judges and fifty lawyers, contributes articles to China Environment News and has made legislative proposals for an Environmental Damage Law. Director Wang states that he has given over 400 interviews to the media. The Internet, according to Ge, is another important resource for education and training. NGO pioneers such as Wang, Ge, Tong, and Guo, appear optimistic that China will slowly establish a rule of law, and that NGOs have a growing role in taking on high-impact cases, educating the public, and influencing policy and law-making. In addition, NGOs are increasingly able to work freely as, according to Guo, over the last ten years government suspicions have gradually turned to acceptance and even trust. Professor Ge believes that the government has begun to recognise that limitations on registering NGOs may be too stringent, and he hopes that restrictions will be relaxed in years to come.

Financing adjustments

Although still in its early stages, China’s legal aid system has made significant strides since its inception in 1994. However, Liu cautions that the government should carefully consider appropriate funding arrangements and incentives to ensure that increased expenditures result in increased access to legal aid. For example, she suggests legalising contingency fees that require payment only if lawyers win cases, and enacting fee-shifting arrangements that require losing defendants to pay plaintiffs’ legal expenses. Fee-shifting, according to Liu, could fund work for legal aid and address the imbalance of power especially prevalent in consumer and state compensation cases.

Angela S-Y Kao wrote this article while visiting China in 2004. She is a student at the Boalt School of Law at the University of California, Berkeley, and a member of the California Law Review.