Wong Kai-shing

The right to legal assistance is very important to safeguard the basic rights of people who cannot afford the legal costs. Without this right, the poor and the disadvantaged in society will be excluded from access to the judiciary to seek justice for their grievances. Economic development in China has been accompanied by the growing importance of resolving disputes through legal means. Chinese citizens have come to rely more and more on legal services to protect their rights and interests. However, the widening gap between the wealthy and the poor arouses concern about the inequality of people before the law as the poor cannot afford the increasing legal fees. Thus, there is an urgent need to create a legal aid system in China.

Development of China's Legal Aid System

In 1994, the Ministry of Justice for the first time proposed the establishment of a legal aid system in China. Legislative work as well as organisation work were carried out to achieve this goal. Some major cities, such as Beijing, Guangzhou and Wuhan, set up municipal legal aid centres and legal aid foundations as pilot projects in 1994 and 1995. In addition, specific articles on legal aid were added to the revised Criminal Procedure Law of the People's Republic of China (PRC) and the Lawyers' Law. Article 34 of the Criminal Procedure Law states that, in case the defendant does not have anyone to be their defender due to financial difficulties or other reasons, the People's Court may designate a lawyer to serve as a defender. Moreover, Article 42 of the Lawyer's Law states that a lawyer must undertake the duty of legal aid in accordance with state regulations and provide the recipient with legal services in fulfilment of their duty and responsibility.

On Dec. 16, 1996, the Legal Aid Centre of the Ministry of Justice was established to promote the development of legal aid bodies nationwide and to monitor their operation. Several months later in May 1997 the Ministry of Justice also set up the China Legal Aid Foundation to raise funds for legal aid. The source of funds for legal aid primarily comes from governmental appropriations with supplements from professional contributions and social donations.

China's legal aid bodies are divided into four categories from the central to the local level, namely: the central, provincial (or autonomous region or metropolitan city directly under the central government), regional (municipality or prefecture) and county or district legal aid bodies. The whole country now has 29 provincial legal aid centres; 266 regional legal aid centres, accounting for nearly 74 percent of all the regions and municipalities; and 968 county legal aid centres, accounting for nearly 34 percent of all counties and districts.

The legal aid centres provide legal services for civil, criminal and administrative procedures or non-lawsuit cases. Two requirements must generally be satisfied for Chinese citizens to receive legal aid: (1) adequate reasons to prove that legal assistance is needed to protect his or her lawful rights and interests; and (2) economic difficulty meeting standards stipulated by the local government. Furthermore, in criminal proceedings, the accused, who might be facing the death penalty and does not have any appointed advocate, shall be entitled to legal aid.

Legal aid centres provide legal assistance either under the orders of the People's Courts or after accepting the application of a citizen. In the former case, the People's Court orders the legal aid centre to designate a lawyer for the defendant who fulfils the requirements for legal aid in a criminal proceeding. In the latter case, a citizen can make an application to a legal aid centre for legal assistance for litigation or non-litigation services. For the request for litigation legal assistance, the legal aid centre will assign a law firm to provide a lawyer to handle the case. According to the Lawyers' Law, every lawyer has an obligation to provide free legal services once or twice a year. The legal aid centre will supervise the work of the lawyer on the case.

It was reported, according to incomplete statistics, that the number of legal aid cases in 1999 alone conducted by legal aid service personnel organised at all levels of legal aid bodies was more than 118,000, legal consultations exceeded 700,000 and more than 180,000 persons were aided.

Problems of the Present Legal Aid System

However, there are several problems with the present legal aid system in China. First of all, considering the large population of China, the provision of legal aid still lags far behind the demand. Only 34 percent of all the counties and districts in China have established legal aid centres. Second, the operation and quality of legal aid centres varies greatly from place to place. The reason is that there is no national law to unify and standardise the structure, operating procedures and sources of funding of the legal aid centres. Third, many local governments lack funds to set up legal aid centres. Fourth, the quality of lawyers cannot be ensured. The problem is that lawyers are now required to provide legal assistance without any payment from the legal aid centres. Therefore, the incentive of lawyers to work hard in legal aid cases is low. Fifth, there is no mechanism to ensure the independence of legal aid centres from the interference of the administration and powerful local interest groups in their consideration of legal aid applications and of lawyers in handling legal aid cases.

To deal with the above problems, a comprehensive national law on legal aid should be made to stipulate clearly the organisational structure, functions and powers, funding sources and operating procedures of the legal aid centres at different levels. This law should guarantee the provision of sufficient funds for legal aid centres and provide mechanisms to ensure their independence. Some sort of payment system for lawyers has to be considered to increase the incentive of lawyers in handling legal aid cases.

Non-Governmental Legal Aid Bodies in China

At the same time, there is a growing number of non-governmental legal aid bodies in China. Most of them were established within the law schools of universities. They aim at providing free legal assistance for the poor and disadvantaged. Some of them specify their services in either civil cases or criminal cases. Now these non-governmental legal aid bodies are playing a very important role in the provision of legal assistance to the poor and disadvantaged in China. In comparison with the official legal aid centres, these non-governmental legal aid bodies have several advantages. For example, they are more independent from external interference as they are not part of the government and seek their own funds. Their legal workers are also more sincere in providing legal services as they are volunteers and are committed to their work. Moreover, they are more professional in handling legal aid cases than those law firms which are only assigned a few legal aid cases each year. Finally, people have more confidence in the non-governmental legal aid bodies because of their voluntary nature and the sincere attitude of their volunteer work force.

A well-known non-governmental legal aid body is the Centre for the Protection of the Rights of Disadvantaged Citizens (CPRDC) at Wuhan University Law School in Wuhan in Hubei Province, which was founded in 1992. At that time, the CPRDC was the first non-profit voluntary legal assistance group within a university in China. The centre aims at providing legal advice and litigation services for disadvantaged citizens based on the principle of 'pursuing a society of justice with scholars and experts offering the best legal services to people in need in accordance with the law.' The centre places the focus of its services on five groups of people: women, children, the elderly, disabled people and complainants in administrative litigation. The services provided include legal advice, the preparation of legal documents and litigation services. There are a few full-time staff members working for the centre, which is not enough to handle the number of requests. The daily work is shared by undergraduates and postgraduate students of Wuhan University Law School. The professors of law and lawyers of the law school head the five departments with respect to the above five groups of people and help to supervise the students in handling cases. Sometimes they handle difficult cases themselves. With the hard work of the teachers and students, the centre has built up a high degree of credibility among the people. Since its founding, it has seen its workload increase each year. Many people come from all parts of China to seek legal assistance. In 1999, the centre met with about 3,500 clients and received 1,000 hotline calls and 1,100 letters.

Another example is the Centre for Women's Law Studies and Legal Services at Beijing University Law School. Established in December 1995, the centre aims at 'providing legal aid, protecting women's rights and interests, safeguarding legal justice, studying the issues relating to women's rights and interests and promoting development of the causes of legal aid and the protection of women's rights and interests in China.' The centre provides legal consultation and undertakes litigation cases with the active participation of many law professors, lawyers and postgraduate students. Since its founding, the centre has undertaken 260 cases related to women's right to work, rights of the person, property and marriage.

The success of CPRDC and the Centre for Women's Law Studies and Legal Services has set a good example for the law schools of other universities. This year many university law schools have begun to set up their own legal clinics to provide free legal services for people. For example, Qinghua University in Beijing will open a legal clinic on consumer's rights, and People's University Law School in Beijing will open a legal clinic on criminal cases. This is an interesting development as other legal clinics largely focus on civil cases. In addition, Fudan University Law School in Shanghai will open a legal clinic on both criminal cases and labour disputes, and the South Central University of Finance and Law opened a legal clinic in May to serve the poor and disadvantaged in society. At the same time, a clinical legal education course will be introduced in these law schools by arranging for law students to practice in their legal clinics. Through clinical legal education, the law schools intend to cultivate the students' professional ethics and responsibilities for providing social services and to induce them to have a creative way of thinking about the practice of law.

However, these non-governmental legal aid bodies are also facing several problems. A major problem is a lack of funds. They do not receive funds from the government and have a difficult time raising funds in a developing country. Now most of these legal aid centres or legal clinics depend on the financial support of the Ford Foundation. Another problem is a lack of human resources, especially full-time staff members. Every day many people seek help from these bodies, but they do not have enough people to handle all of the cases. The mobility of students also affects the ability of these legal aid bodies to accept more cases and maintain the quality of their services.

Conclusion

The development of the legal aid system in China is still at an early stage. It is very important to the protection of the basic rights of the people and the development of the rule of law in China. Other countries can contribute to these legal aid initiatives by providing professional as well as financial support. The sharing of experiences with China about the establishment of a legal aid system would be helpful. In particular, the support provided for non-governmental legal aid bodies will have a long-term positive effect. The non-governmental legal aid bodies can give alternative legal training for law students to make them aware of the injustices in society and foster in them a sense of responsibility to work for realising the rule of law in China.