Government Consults Legal Counsel

By+Wang+Hairong

Guo Xiaomin， deputy chief of Chongchuan District of Nantong， east Chinas Jiangsu Province， has formed a habit of consulting the district governments legal advisor before approving documents.

Legal counsel are helpful to the government， as they can make sure that policy statements are legal and unambiguous， he said.

Currently， all municipal and county governments in the province have legal advisory groups， and more than 900 lawyers have been hired as legal counsel， as recently reported Xinhua Daily， a local paper published in Nanjing， capital of Jiangsu.

In addition to Jiangsu， many local governments across China have already hired legal counsel. As of August 2013， about 23，500 lawyers， or more than one 10th of the national total， had been hired by various levels of government as legal counsel， said Zhao Dacheng， Vice Minister of Justice.

Of these lawyers， 1，300 plus were hired by provincial-level governments， more than 8，100 by prefecture-level governments and more than 14，000 by county-level governments， he said.

Government legal counsels include legal scholars working in universities and research institutes and legal practioners， said Wen Yukai， Vice Chairman of China Society of Administrative Reform.

Establishing a system of legal counsel nationwide and improving the review mechanisms on regulations are among the major decisions adopted on November 12， 2013， at the Third Plenary Session of the 18th Communist Party of China （CPC） Central Committee.

Government departments not only enforce laws， but also make administrative laws and regulations， departmental rules and local rules， explained Qiao Xinsheng， Director of the Clean Governance Research Institute at Zhongnan University of Economics and Law， based in Wuhan of central Chinas Hubei Province. If the legitimacy of laws and regulations are not examined， then the principle of popular sovereignty cannot be implemented， he said.

Legal counsel are serving the government in more and more areas， said Zhao. He said that initially， they acted as government agents in litigations and assisted it by reviewing important legal documents such as business contracts， while they now advise government on major decision making， and participate in the drafting and amendment of government documents， as well as negotiations with foreign investors.

Zhao said that in the future， the government legal counsel system will be further improved and expanded.endprint

Playing a role

Involving lawyers in government departmentsmaking of laws and regulations is important for guaranteeing scientific and democratic lawmaking， said Chen Zhen， a founding partner of Sunshine Law Firm headquartered in Hangzhou， capital of east Chinas Zhejiang Province.

As a lawyer specializing in energy and environment laws， Chen has been invited by the national energy administration and local governments to participate in the drafting of dozens of laws and regulations.

“Some local and departmental regulations and rules are geared toward protecting local and departmental interests，” she said. As legal counsel to the government， she believes that she should take a neutral stance and protect the interests of the general public， and in particular， vulnerable groups.

Xia Yanyan， a lawyer with Lihe Law Firm in northeast Chinas Heilongjiang Province and legal counsel to Heilongjiangs Jidong County Government said that local government officials tend to focus on how to implement policies made by higher-level governments and promote local economic development.

He said lawyers can give legal perspective to government officials， which helps ensure rational decision-making.

Xia cited a case that he handled several years before. At that time， a foreign firm promised to invest $8 million into a state-owned firm in the county， and asked the county government to issue an irrevocable letter of guarantee for foreign investors.

County officials， eager to attract investment to spur local development， were eager to approve this request. But Xia strongly advised them to reject the request， for the law forbids the government from issuing such a letter of guarantee.

Legal counsel also advise local governments on dispute resolution and crisis prevention and control.

An Yan， a lawyer with Fengwei Law Firm in Taiyuan of north Chinas Shanxi Province， has offered legal counseling to the Shanxi Provincial Bureau of Quality and Technical Supervision.

An recalled that in February 2012， Coca Cola （Shanxi） Beverages Co. Ltd. was found to have sold several batches of chlorinetainted drinks. Lawyers from Fengwei Law Firm helped the bureau handle the incident， including assessing whether the company should be punished on the basis of food safety hazards.

The incident was first exposed by a staff member from the company， who told the media that after a pipeline refitting took place on the night of February 3， 2012， workers accidentally mixed water containing chlorine—which is used to sterilize bottles—with water used to produce beverages. A total of 120，000 boxes of drinks in nine batches were affected， and some of the chlorine-contaminated drinks were later sold to customers.endprint

After learning of the incident， the Shanxi Provincial Bureau of Quality and Technical Supervision tested samples from the contaminated batches. Tests showed that the affected batches contained trace amounts of chlorine， less than the 0.005 milligrams per liter allowed by national standards for purified water.

In such a case， whether the company should be punished becomes a tricky issue. On April 19， 2012， the Shanxis quality watchdog sent an investigation group to the company. On-site investigations substantiated the whistleblowers allegations.

After consulting legal counsel， the bureau ordered the company to suspend production and resolve the issue. The company apologized， and agreed to replace any problematic drinks.

Legal counsel also assists various levels of government in handling petitions from the general public so as to promote social harmony. At the Third Plenary Session of the 18th CPC Central Committee， it was decided that lawrelated and litigation-related petitions should eventually be settled according to law.

Hao Huizhen， a member of Beijings Chaoyang District Bar Association， said that the district has hired legal counsel since 2003. Every week， an experienced lawyer is sent to accompany district officials to receive petitioners. Legal counsels provide legal services to petitioners and guide them in resolving disputes according to legal procedures.

Legal counsel can serve as a good bridge between the public and government， not only because of their legal expertise and experience， but also because of their neutral position， said Hao.

Problems to tackle

Although some legal counselors have been frequently sought out for consultation by government officials， some have not.

Chen Chen， Vice President of Anhui Provinces Bar Association， has served as the legal counsel to a local county government for several years， yet he has never had the opportunity to provide legal service to the county government， Chen told Beijing-based Legal Evening News. Chen said that he felt he was only a figurehead.

He said that although legal counsel should help government make and implement policies according to law， in reality they are not able to participate in government work. What they do is help the government solve problems after they arise or handle routine petitions， he said.

Shu Rui， a commentator from the Beijingbased newspaper Legal Daily， said that is because consulting legal experts is a discretionary measure for government officials. Shu suggested that government officials should be required to consult legal counsel before promulgating laws， regulations and rules， and that legal counsel should be given the power to question government actions.

In addition， some lawyers question the method of selecting legal counsel.

Huang Yun， a lawyer with Henan Guoji Law Firm in Zhengzhou of central Chinas Henan Province， told national newspaper Peoples Daily that some local governments did not purchase legal services through open bidding， but rather awarded the contract to lawyers connected to the government.

The government should follow standard procedures in assessing legal service requirements， calculating costs， inviting bids， and evaluating the performance of legal counsels， said Min Jianjun， a lawyer in Jiangsu and a member of the provincial committee of the Chinese Peoples Political Consultative Conference.

Entrance thresholds should be set for legal counsel to the government， and only those who have passed the national bar exam should be considered qualified， suggested Shi Jie， Chairman of the Board of Supervisors， Sichuan Province Lawyers Association.endprint