A Sword and A Shield: China's Human Rights Lawyers

About This Book China has not only entered an “Age of Rights” – as some Chinese scholars have called it – but also an Age of Rights Defence Lawyers. By using peaceful, lawful and constitutional channels to fight against injustice, China’s “rights defence lawyers” have become the heroes of our time and living exemplars of the Chinese people’s quest for the Rule of Law and human rights.

This book is both a testimony to their noble endeavours and a study of the challenges and difficulties they face. The authors include leading scholars in the field and some of the activist lawyers themselves, as well as Taiwan lawyers who share with us their valuable experience across the Strait. It is my pleasure to recommend this book to all those interested in and concerned about law and justice in contemporary China.

— Professor Albert H.Y. Chen, Faculty of Law, University of Hong Kong This book is a comprehensive presentation of the Rights Defence movement, the new avatar of the pro-democracy struggle in China. The pleas by Chinese lawyers show how they try to use all aspects of an incomplete law to defend the rights of citizens against the violations committed by the post-totalitarian regime, while articles by eminent China law specialists describe the repression that strikes the lawyers, analyse the history of the movement, and place it in the context of the struggle against authoritarianism in Greater China. This combination of first-hand material and in-depth analysis makes the book a must for anybody who is interested in the evolution of the PRC regime.

— Jean-Philippe Béja, Senior Researcher of French Centre for Research on Contemporary China The authors are to be congratulated for the production of this much-needed book at a critical juncture when the world seeks to cope with the much-touted rise of China. This series of essays provides an excellent overview of the human rights problems facing human rights defenders in China’s not-so-harmonious society. It will surely prove important to the emerging community of human rights lawyers in China and serve to connect them to the wider human rights legal community. The rich combination of contributions from both local practitioners and scholars provides excellent insight into the difficult human rights problems in China’s era of reform.

Outsiders will be moved to ask whether China’s rise poses opportunity or threat as China seeks to take up its position on the world stage. Does the Chinese system promise respect for thehuman rights of peasants and workers, of Tibetans and Uyghurs? To the extent it does not, is China prepared for its global role? This book will surely help analysts and policy makers consider these issues. At the same time it may offer insight as to where efforts at supporting China’s reforms may best be directed.

— Michael Davis, Professor, Department of Government and Public Administration, The Chinese University of Hong Kong Dr. Johnson reckoned that courage was the greatest of all virtues because, without it, a man had no security with which to preserve any other virtue. Some of the articles in this book recount the stories of courageous lawyers who, at great personal cost to themselves, have striven to preserve the great virtues of justice and the rule of law in the teeth of hostile government interests that threatened the lawyers with imprisonment and worse. Lawyers reading this book will ask themselves the stern, but necessary, question of whether they would, or could, display the same courage if they were in a similar situation. In trying to answer it, they will be forced to question, perhaps for the first time, what it really means to be a lawyer.

— Philip Dykes SC

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About CHRLCG China Human Rights Lawyers Concern Group (CHRLCG) is a nonprofit organisation based in the Hong Kong Special Administrative Region, which advocates for the protection of the rights of human rights lawyers and legal rights defenders in China.

CHRLCG was established on 20 January 2007 by prominent human rights lawyer and legislator Albert Ho Chun-yan, legislator Emily Lau Wai-hing, barristers Cheung Yiu-leung, Ho Wai-yang, Linda Wong and Hectar Pun, solicitors John Clancey and Chong Yiu-kwong, and journalism professor To Yiu-ming. The initial funding of this group has been generously provided by Sir Joseph Hotung.

We acknowledge that despite their endeavours to fight for the rights of the underprivileged within the legal framework, many lawyers and legal activists in China have been subject to tremendous political pressure and unfair treatment by the Chinese authorities. They and their families deserve more attention and support from Hong Kong society and the international community.

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A Sword and a Shield

China’s Human Rights Lawyers

China Human Rights Lawyers Concern Group

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Contents Foreword

vi

Introducing China’s Human Rights Lawyers

1

Albert Ho Chun-yan

Profiles of Prominent Chinese Rights Defence Lawyers

Chapter 1 Challenges to China’s Legal Profession China’s Human Rights Lawyers: Current Challenges and Prospects Jerome A. Cohen What is the Role of China’s Lawyers?

Ong Yew-kim Between a Rock and a Hard Place: China’s Criminal Defence Lawyers Cheung Yiu-leung

Chapter 2 Legal Defence and Legal Representation The Supremacy of the Constitution, and Freedom of Religion Li Heping, Teng Biao, et. al.

Defence Plea on Behalf of Hu Jia on the Charge of Incitement to Subvert State Power Li Fangping

Chapter 3 The Crackdown on Lawyers Background to the Beijing Lawyers Association Election Controversy

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2

37 38 44

57

69 70

89

103 104

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Large-scale Crackdown on the Eve of June 4th Prevents Nearly 20 Lawyers from Practicing their Profession

109

Letter of Complaint Regarding the Beijing Lawyers Association’s Violation of Law and the Association’s Articles of Association, and Its Encroachment on Lawyers’ Right to Practice

114

Joint Press Release by Hong Kong and Taiwan Legal Professionals In Support of China’s Rights Defence Lawyers

118

Chapter 4 Lawyers and the Rights Defence Movement

121

What Is Rights Defence?

Teng Biao

122

Developing Rule of Law through Public Interest Litigation Fu Hualing

129

The Dislocation of the Chinese Human Rights Movement Eva Pils

141

Chapter 5 The Experience of Lawyers Across the Strait A Comparison of the Professional Safety of Lawyers in Taiwan and China Wei Chien-Feng Taiwan’s Road to Rights Defence Wellington Koo Li-Hsiung and Lucas Wang

Reference Documents

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161 162 181

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Foreword Albert Ho Chun-yan

Chairman, China Human Rights Lawyers Concern Group

Since the legal profession in mainland China was restored in the early 1980s, lawyers have become increasingly important in the development of rule of law. Based on media reports, however, and on the information received by the China Human Rights Lawyers Concern Group (CHRLCG), of which I am the chairman and one of the founders, it is clear that China’s judicial authorities are imposing tremendous pressure on lawyers who take up human rights-related cases, such as representing political dissidents, writers, victims of natural disasters such as the May 2008 Sichuan earthquake, and victims of malfeasance by state agencies or enterprises, as in the Sanlu contaminated milk powder scandal. These lawyers are warned by their law firms or justice bureau officials not to take up such cases at the risk of losing their professional licenses.

At the time that I wrote this foreword in November 2009, at least ten human rights lawyers had still been unable to renew their professional licenses, which means they cannot make a living by representing and defending their clients in court. As a practicing lawyer with more than 30 years’ experience in Hong Kong, I find this inconceivable.

In March 2006, I joined Beijing human rights lawyer Gao Zhisheng in a marathon hunger strike relay, which quickly drew the participation of human rights lawyers and activists throughout China, and eventually spread to the United States, Canada, Australia, Europe and other parts of the world in support of human rights defenders in mainland China. Unfortunately, Gao Zhisheng was soon afterwards taken away by the secret police and subsequently in December 2006 was charged with and convicted of “inciting subversion of state power” after spending years advocating for the rights of religious believers and other human rights defenders. Gao was sentenced to three years’ imprisonment, suspended for five years, but spent most of that time under house arrest. On 21 September 2007, he was secretly arrested and tortured by state public security officers (guobao), and was taken away by state security police again on 4 February 2009, since which no further news of him has been received. As noted by Professor Jerome Cohen in this book, a number

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Foreword vii

of people, including myself, are very concerned about Gao Zhisheng’s fate at this time.

A Sword and a Shield: China’s Human Rights Lawyers relates many other cases of abuse and harassment against lawyers, more than a few of which continue to draw the concern of the international community. Among them is the case of Shanghai human rights lawyer Zheng Enchong, who while acting for petitioners who had lost their homes in the redevelopment of Shanghai’s Dongbakuai neighbourhood, was imprisoned for three years for leaking state secrets simply because he had sent a fax to a US-based human rights group.

Lawyer Zheng has been under tight surveillance and house arrest since he was released from prison on 5 June 2006. Another legal activist who has drawn widespread concern is Shandong’s blind “barefoot” lawyer Chen Guangcheng, who rose to prominence by defending the human rights of people facing forced sterilisation and abortion. He has been imprisoned since 24 August 2006, and long-term intestinal illness has caused him to lose about 5 kilos, according to his wife, Yuan Weijing. Yuan Weijing herself has been under round-the-clock surveillance since her husband was imprisoned. Another subject of continued concern is Guangdong legal activist Guo Feixiong, who provided legal assistance to the villagers of Taishi village in Panyu, Guangdong Province, when they attempted to recall a village chief accused of corruption. Guo’s family and lawyers have been unable to visit him in prison for at least three months, and there are worries that this unlawful blocking of access is due to Guo being tortured in prison. Guo is known to have been tortured while detained prior to being sentenced to five years’ imprisonment for “illegal business operation” -- a trumped-up charge, according to Guo’s lawyer Mo Shaoping, connected with his having done nothing more than write the foreword to a book. The cases of these lawyers and legal activists fully demonstrate the inadequacy of the Chinese legal system in protecting the legal rights of its citizens and its lawyers, as well as the arbitrary exercise of the power given to court officials, prosecutors and public security police.

A Sword and a Shield: China’s Human Rights Lawyers attempts to provide an understanding of how China’s legal system works in the context of the political reality in today’s China. This collection of articles by prominent legal academics and practitioners provides valuable insights into the roles lawyers have played in China’s legal system and the constraints they have encountered.

Professor Jerome Cohen, an internationally renowned expert on the Chinese legal system, agreed to let us publish a speech that he gave at a roundtable of the US Congressional-Executive Commission on China on 10 July, in which he points out that China’s lawyers remain subject to many restraints even as

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viii A Sword and a Shield: China’s Human Rights Lawyers

their numbers, education and responsibilities have greatly increased in recent years. Professor Fu Hualing, head of the Department of Law of the University of Hong Kong, discusses the development of public interest litigation in China and how lawyers and other legal advocates use it as a strategy to push for policy change through the legal process. Professor Ong Yew-kim, visiting professor at the China University of Political Science and Law, writes on the developing professionalism and role of China’s lawyers from the 1980s, when the first provisional Law on Lawyers described lawyers as “the state’s legal workers,” to the latest amendments in 2007, which acknowledge lawyers as “practitioners who have obtained a law licence in accordance with law and who are engaged or appointed to provide legal services to clients.” Hong Kong barrister Cheung Yiu-leung, CHRLCG’s mainland affairs secretary and a member of the Mainland Affairs Committee of the Hong Kong Bar Association, analyses how difficult it is in actual practice for criminal defence lawyers to call their witnesses to testify in court, and analyses the professional hazards and disempowerment Chinese lawyers face under Article 306 of the PRC Criminal Law. This book also includes defence statements from two important human rights cases – one by Beijing human rights lawyer Li Fangping in defence of prominent rights defender Hu Jia, who was imprisoned for three years and four months in April 2007 for writing articles and accepting foreign media interviews concerning China’s human rights situation; and the other a defence of a Falun Gong case written by several prominent human rights lawyers, Li Heping, Teng Biao, Li Xiongbing, Zhang Lihui, Li Shunzhang and Wu Hongwei. Both statements support their legal arguments by citing the PRC Constitution along with international human rights legal instruments, including the Universal Declaration of Human Rights, the International Convention on Civil and Political Rights (ICCPR), the Johannesburg Principles on National Security, Freedom of Expression and Access to Information, and the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief. I was personally impressed by the professional standard of these statements, especially when compared to the generally poor quality of court judgments and verdicts in mainland China, which often do not even refer to the evidence presented in the cases.

Prominent Beijing legal scholar and human rights lawyer Dr. Teng Biao has written a reflective piece on the nature of rights defence based on his own experience as a lawyer and rights advocate. He explains how human rights lawyers take part in the rights defence movement (weiquan yundong) by “tying intellectual concepts of freedom and democracy to issues directly affecting

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Foreword ix

ordinary people.” He believes that by actively taking part in the rights defence movement lawyers can push for the enactment of more regulations and thus the development of the rule of law. Professor Eva Pils of the Faculty of Law of the Chinese University of Hong Kong shares Dr. Teng’s views, but argues that the current rights defence movement is largely uncoordinated, and is limited by the government’s repressive measures such as the requirement to report to the judicial authorities if lawyers want to take up “sensitive” cases, the denial of license renewals and the shutting down of NGOs. The denial of registration of professional licenses has become a major tactic by the authorities to punish lawyers who frequently take up “politically sensitive” cases, reaching a climax in 2008 and again in 2009 when lawyers called for direct elections in the Beijing Lawyers Association. A backgrounder on the 2009 election controversy is accompanied by two articles by human rights lawyers protesting the use of the annual registration process by the justice bureaus and lawyers associations to curb lawyers’ right to practice their profession.

We also include CHRLCG’s joint statement with the Taipei Bar Association expressing the solidarity of Hong Kong and Taiwanese legal professionals with our mainland colleagues on this issue.

Finally, we believe there is value in comparing the experience of human rights litigation in Taiwan with the mainland experience, given the cultural and geographical proximity across the Taiwan Strait. Prominent Taiwanese lawyer Wei Chien-Feng provides a historical perspective on the professional safety of lawyers in Taiwan and China and explains how Taiwanese lawyers upheld their rights by actively taking part in social movements. He considers China’s oneparty dictatorship to be the major obstacle facing the mainland legal profession.

Taiwanese lawyers Wellington Koo Li-Hsiung, chairman of the Taiwan Bar Association, and Lucas Wang have jointly contributed an article showing how Taiwanese lawyers progressed on the road to promoting human rights, from the Japanese colonial era through the martial law era under Kuomintang dictatorship to the post-martial law era and its striving for democracy. They also reveal the important role played by the Taipei Bar Association and the Judicial Reform Foundation in pushing for human rights and judicial reform with a bottom-up approach that could serve as a useful reference for mainland lawyers on their own road to rights defence. It is interesting to note the comparisons and contrasts between mainland lawyers’ participation in Charter 08, a signature campaign in December 2008 calling for political reform and more effective human rights safeguards, and the Taipei Bar Association’s call for constitutional reform in Taiwan in 1991 and 1992.

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x A Sword and a Shield: China’s Human Rights Lawyers

This is the first book published by the China Human Rights Lawyers Concern Group, and I believe it is also the first book providing such a comprehensive analysis of the various problems facing lawyers in China. I hope the views expressed by mainland human rights lawyers and their fellow legal professionals in Hong Kong, Taiwan and the United States can provide a platform for studying the situation of lawyers in China and the development of the rule of law at this critical juncture in contemporary Chinese society, as China’s lawyers gradually move, in Professor Fu Hualing’s words, from use of the law as a shield to defend people’s rights, to its use as a sword to more proactively and tactically press for those rights.

November 2009

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Introducing China’s Human Rights Lawyers

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Profiles of Prominent Chinese Rights Defence Lawyers Following is some basic background information on mainland China’s most well-known human rights lawyers, and on the cases that have made them subjects of controversy.

Gao Zhisheng Gao Zhisheng Law Firm Following self-study, Gao graduated from a three-year college in 1996 and began practicing law.

Gao came to international attention through his defence of a Beijing Christian evangelist, Cai Zhuohua, who with his wife, Xiao Yunfei, and brother-in-law, Xiao Gaowen, was imprisoned on charges of “illegal business practices” for printing Bibles. Gao’s defence statements, posted on the Internet, led officials to accuse him of going beyond his duties as a lawyer and entering the realm of politics, but Gao said China’s legal system was not in itself adequate to protect the rights of Chinese citizens: “Chinese lawyers today need to take on wider responsibilities.”

Gao had by then become a specialist on cases involving religious practitioners.

On 18 October 2005, following Gao’s third open letter to Hu Jintao and Wen Jiabao calling for the government to cease persecution of religious practitioners, the Beijing Judicial Bureau began summoning Gao nearly every day and demanding that he retract his open letters, a request he consistently refused. On 4 November, the Beijing Judicial Bureau notified Gao that his law licence was being revoked, and the licence of his law firm was suspended for one year. Gao and his family were harassed and kept under surveillance, and Gao was threatened by police officers several times, and was involved in a suspicious traffic accident.

Following the suspension of his legal practice, Gao announced his candidacy for chairman of the Beijing Lawyers Association, promising that he would

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Profiles of Prominent Chinese Rights Defence Lawyers 3

dedicate himself to fighting for the rights and interests of lawyers, including the reduction of the Association’s membership fees.

On 4 February 2006, Gao Zhisheng began a 48-hour hunger strike to protest a police assault on legal activist Guo Feixiong in Guangdong Province. Nearly 1,000 other activists responded with relay hunger strikes, and more than 4,000 individuals in 16 provinces signed petitions supporting Gao and protesting official persecution, accompanied by an international petition campaign. The Chinese authorities retaliated with a crackdown, and more than 30 hunger strikers disappeared or were detained, including three of Gao Zhisheng’s assistants. The Judicial Bureau summoned Gao on 24 February, and on 4 December Gao Zhisheng was sentenced to three years in prison, suspended for five years, on the charge of “incitement to subvert state power.”

Gao Zhisheng was still serving his suspended sentence on 4 February 2009 when police took him from his family home in Shaanxi Province, and no news has been heard of him since.

Guo Feixiong Born Yang Maodong, Guo Feixiong graduated from East China Normal University and taught at a university at one point before turning to writing. He has no formal legal training.

Guo Feixiong came to prominence through the assistance he provided to residents of Taishi Village in Panyu, Guangdong Province in 2005. The Taishi villagers wished to stage an election to recall a corrupt village official, but their efforts were suppressed by the local authorities, and security guards barred entry to the village by outsiders.

Guo managed to advise the Taishi villagers in spite of repeated obstruction and physical assaults by local police and hired thugs.

Following another assault on Guo on 3 February 2006 by unidentified persons who were suspected to be public security officers and gangsters, Gao Zhisheng began a hunger strike to protest Guo’s persecution. Guo Feixiong planned to go to Beijing and petition the central government on 8 February, but was detained by the authorities and placed under house arrest in Guangzhou. On 14 September 2006, the Guangzhou Public Security Bureau placed Guo under formal arrest on the charge of “illegal business activities” in connection with the publication of a book. After numerous delays and transfers of the case, Guo was

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4 A Sword and a Shield: China’s Human Rights Lawyers

sentenced to five years in prison on 14 November 2007. He has reportedly been subjected to torture and physical abuse in prison.1

Zheng Enchong Zheng Enchong passed his law exam through selfstudy and became a specialist in property law with the Shanghai Siwei Law Firm, ultimately representing more than 500 households displaced by urban redevelopment schemes.

In 2003, displaced residents of the Dongbakuai neighbourhood of Shanghai’s Jing’an District engaged Zheng Enchong to file a lawsuit against property developer Zhou Zhengyi for colluding with local officials in unlawfully obtaining land. On 6 June 2003, Shanghai police placed Zheng under criminal detention, and on 18 June formally arrested him on charges of “illegally obtaining state secrets.” Zheng was tried and convicted on 28 August, and on 28 October 2003 the Shanghai People’s No. 2 Intermediate Court sentenced him to three years in prison for “illegally leaking state secrets overseas.” The judgment stated that Zheng had made inquiries with a reporter regarding an “Internal Reference” report on unlawful land seizure, and that he had also provided a foreign organisation with information on a labour protest in Shanghai. Zheng’s arrest and conviction provoked controversy within Chinese society and in the international community, especially because he had taken on a wealthy and well-connected property developer. Tycoon Zhou Zhengyi was in fact subsequently investigated and convicted of collusion with local officials to unlawfully deprive residents of their property.

In 2005, Zheng received the annual Human Rights Award presented by the German Association of Judges.

Following his release from prison on 5 June 2006, Zheng has continued to speak out on legal and human rights issues, although prevented from returning to the practice of law, and he has remained under surveillance and effective house arrest, while also being subjected to frequent summonses and beatings. In 2008, Zheng was among 15 legal professionals who issued a statement condemning a decision by the Ministry of Civil Affairs to ban the Federation of House

Reporters Without Borders, “Cyber-dissident Guo Feixiong tortured in detention,” 6 November 2008, http://www.rsf.org/Cyber-dissident-Guo-Feixiong.html.

1

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Profiles of Prominent Chinese Rights Defence Lawyers 5

Churches. The statement called on the National People’s Congress to defend the civil rights of free assembly and worship provided in China’s Constitution, and called for the revocation of the “Regulation on the Registration and Administration of Social Organizations” as a violation of basic civil rights.

Yang Zaixin Baijuming Law Firm.

Yang Zaixin began practicing with Guangxi’s Zhongchi Law Firm in 1996, and became a partner in the firm in 2002. He later joined the Baijuming Law Firm. His professional licence was threatened with suspension during the annual examination and registration process in May 2009, but was ultimately approved on 9 June.

Yang’s most notable cases include those involving peasant land rights, coercive family planning and Falun Gong.

In January 2006, Yang agreed to serve as defence counsel for Shandong lawyer Liu Ruping, a Falun Gong practitioner who had been sent to a labour camp for publishing a statement supporting Falun Gong. The labour camp where Liu Ruping was being held threatened to report Yang Zaixin as a Falun Gong sympathiser, and around the same time, the Zhongchi Law Firm cancelled Yang’s employment contract because he had taken on the defence of a Pingguo County Falun Gong practitioner, Nong Youyue.

While taking part in a hunger strike in support of Gao Zhisheng on 11 February 2006, Yang Zaixin received a threatening phone call from someone claiming to be from the public security bureau, and was also briefly detained.

Local public security police obstructed Yang when he attempted to provide legal assistance to villagers in Foshan, Guangdong Province, on two separate occasions in 2005, and in one instance police left Yang at the Guangxi border to make his way home on foot.

While representing another group of peasants in a land dispute in April 2009, Yang Zaixin was assaulted by several thugs associated with local officials, who had confiscated the land for a paper factory with Finnish investment. When Yang Zaixin brought the case to public attention, it caused great controversy in Finland, with the Finnish prime minister ordering a thorough investigation.

In 2009, Yang’s law firm came under pressure during the annual registration

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6 A Sword and a Shield: China’s Human Rights Lawyers

process, and Yang himself had his law licence revoked. Yang said a former judicial official had contacted the head of his law firm and demanded that Yang have no further contact with the news media on sensitive cases.

Xu Zhiyong Xu Zhiyong has a PhD in Law from Peking University and is a lecturer at the Beijing University of Posts and Telecommunication, as well as serving as an elected delegate of the People’s Congress of Beijing’s Haidian District.

Following the case of Sun Zhigang, a university student who was beaten to death while being held in a Guangzhou custody and repatriation centre, Xu joined with Teng Biao and Yu Jiang in a petition to the NPC calling for the abolition of the inhumane “Custody and Repatriation Regulation.” The petition caused reverberations throughout China and overseas, and ultimately led to Premier Wen Jiabao signing a decree abolishing the system. Xu also participated in the legal defence of rural entrepreneur Sun Dawu, resulting in Sun receiving a light sentence on his trumped-up charges of accepting deposits from members of the public. More recently, Xu joined with lawyer Li Heping in the legal defence of lawyer Gao Zhisheng and asserted that the suspension of Gao’s law firm was for political reasons.

Xu served as legal counsel to the former chief editor of Southern Metropolitan News, Cheng Yizhong, and the newspaper’s former general manager, Yu Huafeng, and in 2005 took part in many legal cases that drew attention inside China and overseas, including the case of Protestant evangelist Cai Zhuohua, the Shaanbei Oilfield case, which touched on private property and asset rights, and the controversy over coercive family planning policies in Shandong Province.

The Shandong coercive family planning case is a concrete example of the various tactics employed by Xu Zhiyong and other rights defence lawyers, including Teng Biao, Li Heping, Li Subin, Jiang Tianyong and Li Chunfu.

The lawyers carried out independent inquiries in Linyi, made their findings available to the public and to the central government, and served as defence counsel to barefoot lawyer Chen Guangcheng, who had first brought the scandal to light. In the process, Xu and the other lawyers were obstructed, assaulted and detained.

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Profiles of Prominent Chinese Rights Defence Lawyers 7

In 2007, Xu Zhiyong helped to found the NGO Open Constitution Initiative, also known as Gongmeng, to push for rule of law. In 2008, Xu published several articles providing first-hand accounts of Beijing’s “black prisons,” where petitioners were detained before being sent back to their home provinces. That same year, Xu represented victims of the Sanlu Milk Powder scandal, in which contaminated milk powder caused the deaths of at least six infants and illness among hundreds of thousands of others.

The Party secretary of the Beijing University of Posts and Telecommunication warned Xu that his continued participation in social movements could lead to loss of his teaching position, as well as loss of his personal freedom.

On 29 July 2009, Xu was detained on charges of tax evasion, along with his Gongmeng colleague Zhuang Lu. The Open Constitution Initiative was fined 1.46 million yuan and shut down by the authorities. Xu Zhiyong was released on bail on 23 August 2009.

Mo Shaoping Mo Shaoping Law Firm Mo Shaoping received his LLM in Criminal Law in 1988 from the Chinese Academy of Social Sciences.

A veteran rights defence lawyer, Mo Shaoping began in 1994 to serve as defence counsel in political cases involving prominent dissidents such as Liu Xiaobo, Liu Nianchun, Jiang Qisheng, Xu Wenli, Fang Jue, Yao Fuxin, Xu Wei, Yang Jianli, Du Daobin, Zhao Xin, Zhao Yan, Shi Tao and Feng Bingxian. Mo Shaoping was named an “Asian Hero” by Time Magazine in 2003.

In explaining why he takes on the cases of high-profile dissidents, Mo has told the foreign media, “I am trying to be a force to help the law and see to it that these people get a legal defence and that their cases are placed on the public record… I think that in the end history will judge these people I have defended differently, history will show that these people were right.”2

AFP, “China rights lawyer in one-man crusade for fairer future,” 3 July 2008, http://afp. google.com/ article/ALeqM5h75boNP01PBMLCr-zrRJqlld54jw.

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8 A Sword and a Shield: China’s Human Rights Lawyers

Pu Zhiqiang Beijing Huayi Law Firm Pu Zhiqiang graduated with a degree in History from Nanhai University.

He began practicing law in 1997. As a law student, he took part in the 1989 protests in Tiananmen Square.

Pu came to prominence through his legal defence in the libel case against Chen Guidi and Wu Chuntao, the authors of The Chinese Peasant Survey, and in the process became acquainted with many Anhui peasants who told him of oppressive official practices of taxation and land conscription, including arrests and beatings even of elderly women.

Pu has handled many other cases involving freedom of expression, such as the defence of journalist Yu Huafeng, a 2005 libel case against Beijing Youth Daily by a the head of a powerful mining company in Shandong Province, and a libel suit against the Beijing Youth Daily supplement Bingdian (Freezing Point) relating to an exposé of fraudulent business practices by the former Party secretary of Fuxin City, Liaoning Province. Pu was also involved in the legal defence of lawyer Zheng Enchong.

Pu was one of the many Chinese lawyers who signed Charter 08, a declaration issued in December 2008 to mark the 60th anniversary of the Universal Declaration of Human Rights. The charter called on the Chinese government to enact democratic reform and transform the country’s authoritarian and corrupt regime to one respectful of human rights.

Teng Biao Teng Biao received a PhD in Law from Peking University. He is currently a lecturer at the Law School of the China University of Political Science and Law, and previously practiced law with the Beijing Huayi Law Firm.

Teng Biao joined Xu Zhiyong, Yu Jiang and others in the petition to the NPC to abolish the Custody and Repatriation system following the Sun Zhigang case, and he was also part of the rights defence team in the Shandong coercive family planning case. He co-founded the Open Constitution Initiative with Xu Zhiyong and others.

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Profiles of Prominent Chinese Rights Defence Lawyers 9

Teng Biao has been warned several times by officials at University of Political Science and Law that if he continues with his rights defence activities, he may lose his job and even his personal freedom. Teng told the university’s president, “Although my job and my personal safety are important, I cannot abandon my even more important principals, those being freedom of thought, freedom to write, and the call of justice.” Teng has been particularly outspoken on behalf of his friend, AIDS activist Hu Jia, who was sentenced to 3-1/2 years’ imprisonment in April 2008 on charges of incitement to subvert state power.

Teng Biao was abducted for two days by public security police in March 2008.

In April 2008, Teng was one of 18 lawyers who published a statement offering to provide legal defence to Tibetans detained after the 14 March 2008 riots in Lhasa. During the annual examination and registration process in 2008, state judicial authorities suspended Teng Biao’s professional licence.

Li Heping Beijing Globe Law Firm Li Heping received an MLA from China Renmin University. His professional licence was suspended during the annual assessment and registration process in 2009, and had not been restored as of November 2009.

Li Heping uses the Constitution and law to publicise civil rights, and implements the Constitution and law through individual cases. In September 2005, Li was part of the defence team in the Zhejiang Dongyang Huashui Village case (also known as the April 1 Case), in which 30,000 residents of Huashui Village staged a revolt over environmental pollution, assaulting several government officials, including the deputy mayor of Dongyang City.

He has taken on a number of other significant cases, with his clients including Guo Quan, an associate professor at Nanjing Normal University and deputy chairman of the China New Democracy party, who was arrested in November 2008 and charged with subversion of state power; members of the Three Kinds of Servants sect in Heilongjiang; members of a house church in Zhejiang Province; Yang Jia, who was sentenced to death for charging into a Shanghai police station in July 2008 and stabbing six police officers to death; persons sentenced to re-education through labour; and Falun Gong petitioners.

In 2007, Li Heping joined the “United Appeal by Intellectuals and Lawyers to Abolish the Re-education Through Labour System.”

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10 A Sword and a Shield: China’s Human Rights Lawyers

Li was abducted and assaulted by unknown men in September 2007, and his car was rammed by a police vehicle while he was driving his son to school one morning in March 2008.

In May 2009, during a visit to Beijing by US House Speaker Nancy Pelosy, police kept Li Heping under constant surveillance, and called him in for talks.

Zhu Jiuhu Beijing Jietong Law Firm Zhu Jiuhu graduated from the China University of Political Science and Law and previously worked as an assistant to lawyer Mo Shaoping.

In July 2004, Zhu Jiuhu began representing thousands of investors in the Shaanbei Oilfield case, in which the local government seized the assets of some profitable oilfields after they had been privatised. He was placed under criminal detention on 26 May 2005 and held until the personal intervention from Party Secretary General Hu Jintao resulted in his release on 20 September. Zhu Jiuhu was sent back to Beijing to await trial, but under the terms of his bail was unable to appear in court on behalf of his clients. Zhu was also forced to sign a document removing Gao Zhisheng as his defence counsel.

In 2008, Zhu Jiuhu served as defence counsel for Internet essayist Chen Daojun, who was eventually sentenced to three years in prison for “incitement to subvert state power.” While presenting his defence on November 5, Zhu Jiuhu maintained not only that Chen Daojun had committed no crime, but also that the Dalai Lama did not advocate independence in the pursuit of splitting the Motherland. This was believed to be the first time the Dalai Lama’s Tibet policy had been defended by a lawyer in a mainland court.3 In 2009, Zhu Jiuhu was part of the legal team representing Hu Xingdou, a Professor of Economics at Beijing Institute of Technology, who sued Beijing Xin Net for ordering him to shut down his website in March 2009 after he posted reports on official corruption. In a landmark ruling in May 2009, Beijing’s Daxing district court found that Xin Net could not provide proof for

Zhang Qingyang, “Attorney Zhu Jiuhu Speaks in Defense of Dalai Lama in Chengdu Courtroom,” China Free Press, 7 November 2008, http://www.chinafreepress.org/publish/ Othernews/ Attorney _Zhu_Jiuhu_Speaks_in_Defense_of_Dalai_Lama_in_Chengdu_ Courtroom.shtml.

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Profiles of Prominent Chinese Rights Defence Lawyers 11

its claims of the so-called “illegal” content, and ordered the service provider to repay Hu’s service fees for the past two years.4

Li Baiguang An Ping Cheng Law Firm Li Baiguang (also romanised as Li Boguang) received an MLA and PhD in Law from Peking University Law School, and is now a senior consultant with the Beijing An Ping Cheng Law Firm.

At the end of 1997, Li Baiguang became a lecturer with the Hainan University Law School, and established a “salon” of young intellectuals. When their discussions began to focus on the problems of China’s political reform, Li was arrested on 5 April 1998, but was subsequently released.

In December 2004, while providing legal aid to peasants in Fu’an who had been deprived of their land, Li was arrested on allegations of falsely claiming educational credentials. Li said the head of the Fu’an Municipal PSB Detention Centre had his staff take instructions in law from him, and in return allowed Li privileges such as a shower every two days and gifts of food. Li was released on bail on 22 January 2005, but was warned not to engage in “loose talk” on the Internet.

Li has sometimes provided legal counsel without charge, or has even contributed his own funds to his clients.

A practicing Christian, Li has represented many Christians detained for practicing their religious beliefs. He was one of three Chinese Christians who met with President George W. Bush in May 2006 to discuss religious freedom in China.

On 29 June 2008, Li Boguang intended to join seven other Beijing rights defence lawyers and scholars in a meeting with visiting members of the US Congressional Human Rights Caucus, but Beijing police held him in a holiday villa on the outskirts of Beijing until the Congressman left Beijing.

Chen Weihua, “Learn from landmark court case,” China Daily, 30 May 2009, http://www. chinadaily.com.cn/opinion/2009-05/30/content_7953769.htm.

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12 A Sword and a Shield: China’s Human Rights Lawyers

In 2008, Li was among 15 legal professionals who issued a statement condemning a decision by the Ministry of Civil Affairs to ban the Federation of House Churches.

Zhang Xingshui Beijing Kingdom Law Firm Zhang Xingshui graduated from the China University of Political Science and Law, and is a member of the China Law Society and the China National Democratic Construction Association. In 2003 he was named one of China’s most newsworthy legal professionals by the Ministry of Justice, the All China Lawyers Association and Legal Daily.

Zhang was a member of the defence team for rural entrepreneur Sun Dawu, who had begun offering banking services to local villagers out of frustration with the kickbacks rural businesses had to pay for bank services. Sun was detained on charges of illegal deposit-taking in 2003, but after six months in detention, he was ultimately sentenced to three years in prison, suspended for four years.5 Zhang Xingshui went on to serve as legal counsel in many significant civil rights cases, including an administrative action by the Gongmin Weiquan website against the Beijing Communications Administration, and appeals by the defendants in the Southern Metropolitan News case. He joined lawyer Pu Zhiqiang in representing famed economist Mao Yushi in his lawsuit against the Zhongguo Wenlian Publishing Company for suspending publication of his essay collection, and represented constitutional scholar Wang Yi in his application for administrative redress against the General Administration for Press and Publication. He also served as defence counsel for Christian evangelist Cai Zhuohua and for Lin Zhangwang, who was arrested in 2005 on suspicion of illegally occupying agricultural land, as well as representing the family of Jiang Zongxiu, a Christian who died in police custody after being detained for distributing religious materials.6

Hamish McDonald, “Farm-grown rebel fights corruption,” The Age, 10 January 2004, http://www.theage.com.au/articles/2004/01/09/1073437468912.html?from=storyrhs.

6 “Sister Jiang Zongxiu’s Case,” Monitor China, 5 July 2004, http://www.monitorchina. org/ document_details.php?id=63.

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Profiles of Prominent Chinese Rights Defence Lawyers 13

In 2007, Zhang was a signatory of the “Appeal by intellectuals and legal professionals for the abolition of the Re-education Through Labour system.”

In June 2008 Zhang was warned by the authorities and prevented from meeting a visiting delegation from the US Congressional Human Rights Caucus.

Also in 2008, Zhang was among 15 legal professionals who issued a statement condemning a decision by the Ministry of Civil Affairs to ban the Federation of House Churches.

Fan Yafeng A native of Quanjiao, Anhui Province, Fan was born in 1969, received an LLB from Anhui Normal University, an MLA from Peking University, and a PhD from the CASS Institute of Law, where he until recently worked as an associate research fellow.

Fan came to public notice when he joined with Xu Zhiyong, Teng Biao, Zhang Xingshui, Gao Zhisheng and Wang Yi in the legal defence of Protestant evangelist Cai Zhuohua.

Fan said the Cai Zhuohua case was notable for the banding of several prominent rights defence lawyers into a “defence team” to challenge the all-powerful government machinery. Fan says the authorities originally hoped to handle the Cai Zhuohua case in “blitzkrieg” fashion, and demanded that Cai’s lawyers produce a huge quantity of documents within a few days – a deadline the lawyers successfully met. Fan has also served as defence counsel for a number of other individuals detained for practicing their religious beliefs.

In June 2008 Fan was warned by the authorities and prevented from meeting a delegation from the US Congressional Human Rights Caucus.

In 2008, Fan was among 15 legal professionals who issued a statement condemning a decision by the Ministry of Civil Affairs to ban the Federation of House Churches.

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14 A Sword and a Shield: China’s Human Rights Lawyers

Fan was effectively dismissed from his position at CASS on 3 November 2009 because of his active defence of house church Christians.7

Chen Guangcheng Chen Guangcheng became blind when he was half a year old. After graduating from elementary school at the age of 20, he went on to study at the Nanjing University of Chinese Medicine.

In 1996, Chen began defending the rights of the handicapped, providing free legal advice to peasants as a “barefoot lawyer.” He then began to devote his full effort to coercive family planning policies in Linyi, Shandong Province, which involved forced sterilization and abortion and other practices in violation of Chinese law and human rights. He was placed under house arrest from September 2005 to March 2006 after talking to Time magazine about the situation in Linyi.

After inquiries by Beijing rights defence lawyers backed up Chen’s allegations of the unlawful practices in Linyi, the National Population and Family Planning Commission sent people to carry out its own inquiries, after which the Commission acknowledged that measures violating law and human rights had been employed in implementing the family planning policy in Linyi, and that the responsible parties had been dismissed and arrested. Nevertheless, Chen was formally arrested in June 2006 on allegations of destruction of property and assembling a crowd to disrupt traffic.

On the eve of Chen’s trial on 18 August 2006, all three of his lawyers, Xu Zhiyong, Li Fangping and Li Subin, were detained on trumped-up allegations, and Chen was represented by a court-appointed public defender who had not read his file prior to trial. On 24 August, Chen was sentenced to four years and three months in prison. On 12 January 2007, an appeal court upheld the original sentence.

China Human Rights Lawyers Concern Group, “Guanzhu Fan Yafeng yin chanyu jiating jiaohui weiquan suodong bei Zhongguo Shehui Kexueyuan Faxuexuo wuli jiegu” (Concern over Fan Yafeng’s unreasonable dismissal from CASS for participating in rights defence of house churches), 5 November 2009, http://www.chrlcg-hk.org/?p=475; and Chinese Human Rights Defenders, “Beijing Scholar and House Church Leader Dr. Fan Yafeng Fired for ‘Political’ Reasons,” 3 November 2009, http://crd-net.org/Article/Cla ss53/200911/20091103222019_18086.html.

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Chen’s wife, Yuan Weijing, has been assaulted several times while fighting for her husband’s rights. She has been kept under increasingly stringent house arrest, and the couple’s son, Kerui, has been unable to start school. Chen has been denied family visits, and is reported to have suffered increasingly poor health, including serious intestinal disorders, without the benefit of medical treatment.

Chen Guangcheng was selected as one of Time magazine’s “World’s 100 Most Influential People” for 2006, and in 2007 was awarded the Ramon Magsaysay Award, sometimes referred to as the “Asian Nobel Peace Prize.”

Guo Guoting Guo Guoting served as a maritime lawyer for 18 years in Hong Kong and in mainland China, but out of personal interest became increasingly engaged in rights defence cases after Peking University student Liu Di was arrested for remarks she posted on the Internet. Guo volunteered to take on Liu Di’s legal defence and published articles describing her as a heroine. He also provided free legal defence for cyber-dissident Luo Yongzhong, who was given a threeyear jail sentence for subversion on 14 October 2003 for posting articles on the Internet “attacking the socialist system.” Other clients have included dissident writers Huang Junqiu, Yang Tianshui, Shi Tao and Zhang Lin, as well as petitioners protesting displacement in urban redevelopment schemes such as Ma Yalian and Wang Shuizheng. Guo’s most notable human rights case was his defence of lawyer Zheng Enchong.

When Guo Guoting agreed to take on the legal defence of two Falun Gong practitioners in early 2005, the Shanghai judicial bureau revoked his professional licence, after which he was subjected to surveillance and persecution. He is currently living in exile in Canada.

Zhou Litai Since 1996, Zhou Litai has handled thousands of cases defending workers’ rights, especially in demanding compensation for workplace injuries. He has also brought administrative lawsuits against Shenzhen’s social security departments and has pushed forward legislation in Guangdong Province and Shenzhen, and was named one of Guangdong Province’s outstanding individuals by Southern Metropolitan News. Business owners detest Zhou, and he has also gained enemies in the region’s social security departments and

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16 A Sword and a Shield: China’s Human Rights Lawyers

labour supervisory departments, as well as among other government officials.

At the end of 2001, the judicial bureau of Shenzhen’s Longgang District ordered Zhou to “immediate desist in his unlawful professional actions” and labelled him a “rogue lawyer.”

Most recently, Zhou Litai has taken on the legal defence of Li Zhigang, accused of being a key member of the Li Yi criminal organisation in Chongqing, members of which are currently facing charges of arson, extortion, illegal possession of firearms and tax evasion as result of a major anti-crime campaign.

Asked why he had taken on a case that so many other lawyers were avoiding, Zhou said, “This is a duty that the law has put upon me. Because suspects have basic rights, too.”8

Li Jianqiang Li was an employee of the Qingdao municipal government when he joined protests in favour of democracy in 1989, and he lost his job as a result. He went to law school and became a lawyer in 1994 Li has written a number of articles under the pen name Liu Lu, and many of his clients have been writers and journalists, among them Li Yuanlong, Zhang Jianhong, Yan Zhengxue, Yang Tianshui and Guo Qizhen, as well as dissidents such as Chi Jianwei.

He also sued local authorities in Zhejiang Province after they demolished an unsanctioned Christian church.9 The Shandong Provincial Bureau of Judicial Affairs rejected Li Jianqiang’s application for renewing his license in June 2007, without providing any explanation for its decision. He is now living in exile in the United States.

Joel Martinsen, “The mob lawyer speaks,” Danwei, 18 October 2009, http://www.danwei. org/ crime/the_mob_lawyer_speaks.php.

9 Joseph Kahn, “Rivals on legal tightrope seek to expand freedoms in China,” The New York Times, 25 February 2007, http://www.nytimes.com/2007/02/25/world/asia/25china. html?pagewanted= 1&ei=5124&en=55df621e655a238a&ex=1330146000&partner=per malink&exprod=permalink.

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Profiles of Prominent Chinese Rights Defence Lawyers 17

Zhang Jiankang Zhang and dissident Yang Hai were detained in Xi’an after American television crews attempted to interview them regarding a visit to China by then-President Bill Clinton. Zhang and Yang and a third dissident, Yan Jun, were released after the Clinton administration lodged a formal complaint over the detentions.10 Zhang assisted in the legal defence of Chen Guangcheng, and has defended Falun Gong practitioners. He also defended Liu Dehuo, a villager from Nanhai County, Guangdong Province, who in 2007 was jailed for four years for organising protests demanding compensation for land seized by a local company.

Lawyer Zhang Jiankang (left) with famous Beijing legal scholar Professor He Weifang (right)

Zhang was among the lawyers volunteering legal support to Tibetans following the 14 March 2008 riots in Lhasa. Also in 2008, Zhang was among 15 legal professionals who issued a statement condemning a decision by the Ministry of Civil Affairs to ban the Federation of House Churches. He was threatened with suspension of his licence in May 2008.

Yuan Xianchen A self-taught lawyer, Yuan in 1998 began providing legal aid to farmers, miners, displaced persons and other impoverished or exploited people in Jixi City, Heilongjiang Province, drawing the ire of local government officials. He is best known for his work as a legal advisor to workers at the Didao Mine who demanded compensation from the local government and the mine management after the former state-owned business was re-structured and privatised.

In early 2008, Yuan help Yang Chunlin, a Heilongjiang farmers’ representative, collect signatures endorsing an open letter entitled “We Want Human Rights, Not the Olympics” ahead of the Beijing Games.

Bronwen Maddox, “Clinton plans sharp attack on Chinese rights record,” The Times (London), 27 June 1998, http://www.independent.ie/world-news/clinton-plans-sharpattack-on-chinese-rights-record-443750.html.

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18 A Sword and a Shield: China’s Human Rights Lawyers

Yuan was taken into police custody in Beijing on 24 May 2008. On 4 March 2009, Yuan was sentenced to four years in prison for “incitement to subvert state power” on the basis of an article entitled “Save China, Implement Constitutional Democracy” that he distributed to petitioners and representatives attending the National People’s Congress in Beijing in 2005, as well as interviews that he gave to foreign media, and a number of unpublished articles “attacking” socialism.11

Li Fangping Li joined Li Jinsong in the legal defence of Chen Guangcheng, and while the two lawyers were travelling to Linyi City in December 2006, they were beaten by thugs.

In 2007 Li was a signatory of the “Appeal by intellectuals and legal professionals for the abolition of the Reeducation Through Labour system.”

Li handled a number of controversial cases in 2008. He joined with Zhang Jianguo to represent Heilongjiang farmers’ representative and Olympics protester Yang Chunlin, and also served as defence counsel for lawyer Liu Yao, who in June 2008 was sentenced to four years in prison for “intentional destruction of property.” Liu Yao had represented peasants in Dongyuan County, Guangdong Province, whose land had been expropriated by the local government to make way for a new power station, and was present when a structure on the construction site was damaged in December 2007.

Liu’s conviction sparked large-scale petitions by other lawyers. In a final appeal hearing on 16 April 2009, the Heyuan Intermediate People’s Court in Guangdong Province sentenced Liu Yao to 18 months in prison, suspended for 2 years.12

Chinese Human Rights Defenders, “Yuan Xianchen Sentenced to Four Years in Prison for ‘Inciting Subversion of State Power,’” 6 March 2009, http://crd-net.org/Article/Class9/ Class10 /200903/20090306133405_14109.html.

12 Congressional-Executive Commission on China, “Shenzhen Rights Defense Lawyer Liu Yao Released from Detention: In Final Appeal, Liu Sentenced to an 18-month Prison Term, Suspended for 2 Years,” 2 February 2009, http://www.cecc.gov/pages/virtualAcad/index. phpd?showsingle=118053.

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Also in 2008, Li joined Li Jinsong in providing legal defence for dissident Hu Jia, and provided pro-bono legal aid to victims of the Sanlu Milk Powder scandal.

Li joined Jiang Tianyong as defence counsel for He Hongchun, whose child died in the 2008 Sichuan earthquake, and who was detained in September 2008 after organising a protest outside an insurance company in Beicuan County. In July 2009 He Hongchun was convicted of “gathering a crowd to disturb social order” and sentenced to three years’ imprisonment, suspended for five years.

Following the 14 March 2008 protests in Lhasa and other Tibetan areas, Li Fangping joined lawyer Jiang Tianyong in defending a number of detained Tibetans. In May 2009, they secured the release of Tibetan monk Jigme Gyatso, who had been held for six months without charge after Voice of America released a videotape in which he described being tortured in detention following the March 2008 protests. As defence counsel for Tibetan Lama Phurbu Rinpoche, who was charged with illegally possessing weapons, Li in April 2009 told Associated Press that his client had been framed and had been severely tortured upon first being detained.

Later in 2009, Li was blocked from representing Tsultrim Gyatso and Thabkey Gyatso, two Tibetan monks from Labrang monastery in Gansu Province who were ultimately sentenced to prison terms of life and 15 years, respectively, for “splitting the country.”

In June 2008 Li was warned by the authorities and prevented from meeting a delegation from the US Congressional Human Rights Caucus. In December 2008, Li joined another public interest lawyer, Lan Zhixue, to establish the Institute of Democratic Society, a non-profit organisation whose website proclaims “fair, reasonable and legal; dare to think, speak and act.” In May 2009, Li was placed under surveillance and called in for questioning during a visit to Beijing by US House Speaker Nancy Pelosi.

In June 2009, Li demanded a public hearing to reconsider a government demand that all new personal computers carry Internet filtering software as of 1 July. The Chinese authorities eventually backed down on the requirement.

Zhang Lihui Beijing Giant & Goal Law Firm Zhang came to Beijing to work as a lawyer in 2003. He is also a research fellow at the Peking University Constitution and Human Rights Research Institute, and

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20 A Sword and a Shield: China’s Human Rights Lawyers

is a member of the Beijing Lawyers Association Constitutional Jurisprudence Committee. Zhang specialises in company law and criminal law, and has wide experience in handling commercial crime cases, private commercial lawsuits, arbitration and criminal defence.

Zhang’s professional license was suspended during the annual assessment and registration process in 2009, and it had not been restored as of November 2009.

Zhang’s notable cases include defence of the Heilongjiang Three Kinds of Servants sect and Falun Gong practitioners. Zhang participated in the legal defence of Chen Guangcheng, but while in Linyi to prepare Chen’s legal defence in August 2006, he was summoned by the local PSB on trumpedup charges of larceny and eventually lost his right to serve as Chen’s defence attorney.

Zhang Lihui is also deeply committed to public interest law, and was involved in the Zhejiang Dongyang case as well as others involving environmental issues. As a non-Beijing native, he has also handled cases of discrimination against “new residents” of Beijing.

Zhang Lihui actively participated in the campaign for direct elections in the Beijing Lawyers Association in 2008. He gained enough signatures to qualify as a candidate in the election of representatives of the Beijing Lawyers Association in 2009, but his name was not included on the ballot on 4 March.

Cheng Hai Beijing Anhui Law Firm Cheng obtained his MLA from Nanhai University, became a lawyer in 2001, and began practicing in Beijing in 2003. Prior to that he was a farmer, worker, teacher and investment consultant, and he is familiar with enterprise operations and management and related law.

Cheng Hai was threatened with suspension of his professional licence during the annual assessment and registration process in 2009. The licence of the Beijing Anhui Law Firm was suspended during the assessment.

Cheng Hai, whose household registration (hukou) is in Hefei, Anhui Province, has taken on a number of case in which individuals lacking a Beijing hukou have suffered discrimination. His notable cases include lawsuits against the Beijing

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Profiles of Prominent Chinese Rights Defence Lawyers 21

PSB regarding household registration and suspension of temporary residence permits. Cheng has also worked on the Yang Jia case, Re-education Through Labour cases and Falun Gong cases, and he served on the legal defence team of barefoot lawyer Chen Guangcheng. In 2007 he was a signatory of the “Appeal by intellectuals and legal professionals for the abolition of the Re-education Through Labour system.”

Cheng Hai says, “Public interest work is a lawyer’s duty; lawyers have a responsibility to uphold social justice.” He regularly provides pro-bono legal counsel in cases involving wide public interest.

In 2008, Cheng was among the lawyers offering legal services to Tibetans detained following the 14 March Lhasa riots. On 13 April 2009, while in Chengdu as defence counsel for a Falun Gong practitioner accused of “using an evil cult to obstruct implementation of the law,” Cheng was unlawfully impeded and physically assaulted by seven public security officers, suffering injuries to his hand and ribs.

Cheng was the initiator of the 29 August 2008 open letter signed by 35 lawyers calling for direct elections and a 50 percent reduction in membership fees in the Beijing Lawyer’s Association. He offered himself as a candidate in the 2009 BLA direct election, and gained enough signatures to qualify, but his name was left off the ballot.

Tang Jitian Beijing Anhui Law Firm From 1997 to 2005, Tang Jitian carried out criminal prosecution work for the Yanbian Procuratorate in Jilin Province. Seeking work more in accord with his personal ideals, Tang began practicing as a lawyer in Beijing in July 2007.

His notable cases have involved rights defence of persons living with HIV/ AIDS, Re-education Through Labour cases, defence of peasant property rights and Falun Gong cases. He served as legal counsel in the Hu Xingdou case in 2009.

At the end of 2007, he signed the “Appeal by intellectuals and legal professionals for the abolition of the Re-education Through Labour system.” He also joined a signature campaign in support of rights defence lawyer Liu Yao, and a signature campaign calling for a special amnesty for Yang Jia.

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22 A Sword and a Shield: China’s Human Rights Lawyers

Tang was a signatory of Charter 08 in December 2008. On 12 January 2009, Tang was one of 21 scholars and lawyers who voiced their concern with freedom of the press and information by signing an online petition entitled “Boycott CCTV, reject brainwashing.” He was also one of a number of rights defence lawyers who were detained around the 20th anniversary of June 4th in 2009.

Tang was an initiator and signatory of the 29 August 2008 open letter signed by 35 lawyers calling for direct elections and a reduction in membership fees in the Beijing Lawyers Association. Shortly afterward, the Beijing Haodong Law Firm where Tang was employed “advised” him to resign in the interests of the firm. Tang Jitian offered himself as a candidate in the 2009 BLA direct election and gained enough signatures to qualify, but his name was not included on the ballot. Tang’s professional licence was cancelled during the annual assessment and registration process in 2009. His appeal to the All China Lawyers Association and Justice Ministry was rejected, and his licence had not been restored as of November 2009.

Jiang Tianyong Beijing Globe Law Firm.

Jiang began experiencing problems renewing his professional licence in 2006.

In 2008 the renewal of his professional licence was suspended for two months before being restored. His professional licence was suspended again during the assessment and registration process in 2009 and had not been restored as of November 2009.

Jiang Tianyong’s more notable cases include representing victims of the Shanxi brick kiln scandal, in which hundreds of adults and children were found to be working as slaves in brick kilns in Shanxi and Henan provinces in 2007.

Nearly 100 Shanxi Communist Party officials were punished for their role in the scandal. Jiang has also represented Falun Gong practitioners and Tibetans Phurbu Tsering Rinpoche and Jigme Guri, and has defended the rights of Hepatitis B carriers and persons living with HIV/AIDS. Jiang also served with Li Fangping as defence counsel for Sichuan earthquake victim He Hongchun, but had to discontinue his participation in the case when his licence was suspended.

Jiang Tianyong was prevented from meeting with visiting members of US Congressional Human Rights Caucus in June 2008. He was kept under surveillance during a visit to Beijing by US House Speaker Nancy Pelosi in

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Profiles of Prominent Chinese Rights Defence Lawyers 23

May 2009, and was put under effective house arrest, before and after the 20th anniversary of June 4th in 2009.

Li Xiongbing Beijing Globe Law Firm Li’s professional licence was suspended during the annual assessment and registration process in 2009 and had not been restored as of November 2009.

Major cases include Yang Chunlin, Yuan Xianchen, victims of the Sanlu Milk Powder and Shanxi brick kiln scandals, and rights defence of ethnic minorities, persons living with HIV/AIDS, and Falun Gong practitioners. Li joined Li Chunfu in the legal defence of Shandong journalist Qi Chonghuai, who was arrested with freelance photographer Ma Shiping in June 2007 and imprisoned for blackmail after exposing corruption in the city of Tengzhou.13 Li offered legal assistance to Tibetans detained after the 14 March Lhasa riots, and was a signatory of the 2007 petition to abolish the Re-education Through Labour system and of Charter 08, as well as participating in the campaign for direct elections in the Beijing Lawyers Association.

Li was harassed by police from Beijing’s Zhongcang public security bureau while assisting victims of the Sanlu Milk Powder scandal. He was prevented from meeting with visiting members of the US Congressional Human Rights Caucus at the end of 2008, and was placed under effective house arrest and close surveillance around the 20th anniversary of June 4th in 2009. Li has been forced to move frequently due to state security police contacting his landlords.

Li Chunfu Beijing Globe Law Firm.

Li has represented Falun Gong practitioners and persons living with HIV/ AIDS, as well as handling cases of unnatural death in police custody or

Reporters Without Borders, “Journalist who criticised corruption repeatedly beaten in police custody,” 30 October 2007, http://www.rsf.org/Journalist-who-criticised.html; Committee to Protect Journalists, “Chinese journalist sentenced to four years,” 13 May 2008, http://cpj.org/2008/05/chinese-journalist-sentenced-to-four-years.php.

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24 A Sword and a Shield: China’s Human Rights Lawyers

Re-education Through Labour camps, and involving peasant land rights. He joined lawyer Li Xiongbing in the defence of journalist Qi Chonghuai.

While carrying out inquiries into the unnatural death of Falun Gong practitioner Jiang Xiqing in May 2009, Li Chunfu and Zhang Kai were beaten and detained by police from Chongqing’s Jiangjin District. Li was threatened with suspension of his professional licence during the 2009 assessment and registration process.

Wang Yajun Beijing Globe Law Firm.

Wang’s professional licence was suspended during the assessment and registration process in 2009 and had not been restored as of November 2009.

Wang has represented Falun Gong practitioners and persons living with HIV/ AIDS, and has handled cases involving Re-education Through Labour, unnatural death in RTL camps, and peasant land rights.

Yang Huiwen Beijing Anhui Law Firm Yang was previously employed with the Yitong Law Firm, but was dismissed along with Li Subin, Cheng Hai, Zhang Jianguo and Wen Haibo after all five signed the August 2008 petition calling for direct elections in the Beijing Lawyers Association.

Yang ran for election as chairman of the Beijing Lawyers Association in 2009.

On 19 January 2009, the Beijing Daily News (Xinjing bao) reported that while passing out campaign literature, Yang Huiwen was physically attacked, suffering hand injuries and the loss of more than 1,000 campaign leaflets.14 The BLA refused to comment on the case. Yang qualified as a candidate in the Beijing Lawyers Association election, but his name was not included on the ballot.

Beijing Daily News, “Yang Huiwen lushi fa Beijing luxie jingxuan chuandan zaoyu baoli” (Lawyer Yang Huiwen encounters violence while handing out election leaflets), 19 January 2009, http://www.ngocn.org/?uid-10987-action-viewspace-itemid-40479.

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Profiles of Prominent Chinese Rights Defence Lawyers 25

His professional licence was suspended during the assessment and registration process in 2009 and had not been restored as of November 2009.

Yang has represented ethnic minorities and victims of the Sanlu milk powder scandal. He worked at Xu Zhiyong’s Open Constitution Initiative before it was shut down.

In 2009, under the newly passed “Regulation of the People’s Republic of China on the Disclosure of Government Information,” Yang applied to 73 Beijing municipal government departments for access to information, especially regarding “slush funds,” as a means of promoting government transparency.

Xie Yanyi Beijing Gongxin Law Firm Xie’s professional licence was suspended during the assessment and registration process in 2009, and had not been restored as of November 2009.

Renewal of Xie’s professional licence was also delayed in 2008, possibly because of his lawsuit against the State Trademark Office and his posting on the Internet of an article entitled “Bureaucrats are in a class by themselves,” as well as his assistance to displaced householders. He participated in the campaign for direct elections in the Beijing Lawyers Association in 2009.

Other cases Xie has handled have involved persons living with HIV/AIDS, peasant property rights, householders displaced in urban redevelopment, Re-education Through Labour, unlawful detention and Falun Gong practitioners. Xie provided emergency legal assistance in the appeal trial of Shenzhen rights defence lawyer Liu Yao. In accordance with the newly passed “Regulation of the People’s Republic of China on the Disclosure of Government Information,” Xie applied to the Justice Ministry for data regarding RTL in order to promote government transparency and lead to abolition of the RTL system.15

Nanfang Zhoumu, “Yici youguan xinxi gongkaide xingwei yishu” (An instance of “performance art” on open information), 21 May 2009, http://news.sina.com.cn/c/sd/200905-21/114617861863_2.shtml.

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26 A Sword and a Shield: China’s Human Rights Lawyers

Li Dunyong Beijing Gongxin Law Firm Li was threatened with suspension of his professional licence during the assessment and registration process in 2009.

Li has taken on a number of cases involving house churches, peasant land rights and displaced urban householders. He served as legal counsel for Christian pastor Liu Huiwen, prosecuted in 2007 for evangelising among Muslims. In 2008 he represented Xinjiang house church pastor Lou Yuanqi, Heilongjiang petitioner Liu Jie, and a Christian Uyghur, Alimujiang Yimiti, an employee of a British company in Xinjiang who was accused of incitement to subvert state power and revealing state secrets abroad.16 In October 2008, as Li was preparing to defend the case of a Falun Gong petitioner, Shanghai Xuhui Court Judge Lu Wenjia demanded that he coordinate his defence with the court’s operations. Nevertheless, Li entered a not-guilty plea on behalf of his client, regarded as a first for a Falun Gong case in Shanghai.

Li signed the petition to abolish the Re-education Through Labour system in 2007, and was among the lawyers who offered in 2008 to provide legal assistance to Tibetans detained after the 14 March Lhasa riots. The family of detained Tibetan filmmaker Dhondup Wangchen appointed Li as Wangchen’s legal counsel, but In July 2009 Chinese authorities prevented Li Dunyong from further representation of Wangchen.17

Wen Haibo Beijing Shunhe Law Firm A native of Liaoning, Wen began working as a lawyer with Gao Zhisheng in 2004 until Gao’s law firm was shut down in 2005. Wen and others working with the firm were placed under house arrest when Gao launched his hunger strike to protest violence. Wen went to work with the Shengzhi Law office and then the Yitong Law Firm, where he continued to defend the rights of Falun China Aid Association, “Mr. Alimujiang Yimiti,” http://www.chinaaid.org/downloads/ sb_chinaaid/AlimujiangYimitiProfile.pdf.

17 Canada Tibet Committee, “Canadian filmmakers sign open letter to President Hu,” 6 August, 2009, http://www.tibet.ca/en/newsroom/news_releases/175.

16

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Profiles of Prominent Chinese Rights Defence Lawyers 27

Gong practitioners as he had at Gao Zhisheng’s firm. The licence of the Shunhe Law Firm was cancelled during the 2009 assessment and registration process.

Wen’s professional license was also cancelled, and had not been restored as of November 2009.

Wen signed the 2007 petition calling for the abolition of Re-education Through Labour, and was one of the lawyers who offered legal assistance to detained Tibetans in 2008. He also signed the 2008 petition for direct elections in the Beijing Lawyers Association.

Apart from representing a large number of Falun Gong practitioners, Wen also represented householders forcibly relocated from the Cuobuling and Hexi districts of Qingdao, as well as victims of the Sanlu Milk Powder scandal.

Liu Wei Beijing Shunhe Law Firm.

Liu’s professional licence was cancelled during the 2009 assessment and registration process, and his appeal to the BLA on 9 June was rejected. His licence had not been restored as of November 2009.

Liu has handled a number cases involving Falun Gong practitioners and persons living with HIV/AIDS. He also offered legal services to Tibetans detained after the 14 March 2008 Lhasa riots.

In 2008, Lui Wei defended housing activist Ni Yulan, who was tried in August 2008 on the charge of obstructing public duty for attempting to prevent the destruction of her Beijing home in preparation for the 2008 Olympics.

In May 2009, the Falun Gong-affiliated Minghui website posted an article by Liu Wei entitled “Zhang Xingwu’s defence counsel protests serious unlawful conduct by judge,” which accused the judge in the trial of Falun Gong practitioner Zhang Xingwu of not allowing Liu Wei to see his client or deliver the judgment from the trial of first instance to him, and of threatening to report Liu to the Beijing Lawyers Association for disturbing the order of the court.18

Liu Wei, “Zhang Xingwu’s defence counsel protests serious unlawful conduct by judge,” Minghui.org, 6 May 2009, http://big5.minghui.org/mh/articles/2009/5/6/200296.html.

18

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28 A Sword and a Shield: China’s Human Rights Lawyers

Peng Jian Beijing Giant & Goal Law Firm.

Peng was threatened with suspension of his licence in the 2009 assessment and registration process, but ultimately passed the assessment by 9 June.

Peng represented victims of the Sanlu Milk Powder scandal, and also served as legal counsel to the Open Constitution Initiative in defending a charge of tax evasion.

Li Jinglin Beijing Liurui Law Firm Li’s professional licence was suspended during the 2009 assessment and registration process, and his appeal was rejected on 9 June.

Li has represented victims in the Sanlu Milk Powder and Qingdao Shengyuan Milk Powder cases, as well as Falun Gong petitioners and persons living with HIV/AIDS. He offered to provide legal counsel to Tibetans detained after the 14 March 2008 Lhasa riots, and participated in the campaign for direct elections to the Beijing Lawyers Association.

While Li was representing 54 victims of the tainted milk powder produced by the Shengyuan Milk Company in March 2009, the court suddenly revoked Li’s qualifications to represent a class-action lawsuit. Li believed it was because the Qingdao Court wanted the cases to be broken down and filed separately, which would allow the demands for compensation to be delayed.19

Lan Zhixue Beijing Jiafa Law Firm Lan was threatened with suspension of his licence in the 2009 assessment and registration process, but ultimately passed the assessment by 9 June.

Radio Free Asia, “Shengyuan naiye an daibiao lushi Li Jinglin bei quxiao dailiren zige” (Li Jinglin, lawyer in Shengyuan Milk Co. case, has legal agent qualifications cancelled), 13 March 2009, http://www.rfa.org/cantonese/news/food_milk-03132009115227.html.

19

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Profiles of Prominent Chinese Rights Defence Lawyers 29

Lan has provided legal defence for Falun Gong practitioners, and has handled cases involving persons living with HIV/AIDS, peasant land rights, and unnatural deaths in Re-education Through Labour camps.

With two other lawyers, Lan in December 2008 established the Institute of Democratic Society, a non-profit organisation whose website proclaims “fair, reasonable and legal; dare to think, speak and act.” He was among the lawyers and activists harassed around the time of the 20th anniversary of June 4th in 2009.

Zhang Kai Beijing Yijia Law Firm Zhang was threatened with suspension of his licence in the 2009 assessment and registration process, but ultimately passed the assessment by 9 June.

Zhang Kai represented victims of the Sanlu Milk Powder scandal, Falun Gong practitioners and house church worshippers, and took on the case of a railway passenger, Cao Shihe, who died while tied up, and the death of a suspect, Wan Jianguo, while being interrogated and tortured by the Nanchang Public Security Bureau.

While carrying out inquiries on the unnatural death of Falun Gong practitioner Jiang Xiqing, lawyers Li Chunfu and Zhang Kai were beaten and detained by police from Chongqing’s Jiangjin District. During that time, Zhang Kai was suspended by his manacled hands from the bars of his cell. The police unlawfully accessed the lawyers’ case files and took away evidence.

Liu Xiaoyuan Beijing Yitong Law Firm Liu was threatened with suspension of his licence in the 2009 assessment and registration process, but ultimately passed the assessment by 9 June.

Notable cases that Liu has handled include the Yang Jia case, unnatural deaths in RTL camps, and death sentence amnesty applications. Liu has provided support to parents of missing children who come to Beijing to petition.

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30 A Sword and a Shield: China’s Human Rights Lawyers

A prominent blogger, Liu in 2007 accused Sohu.com of suppressing blog postings and violating bloggers’ user agreements. The case was initially accepted

by Beijing’s Haidian District Court, but the court eventually ruled that the case didn’t meet its requirements. In 2008, Liu won a Deutsche Welle competition for the best Chinese-language blog.

Liu is a member of the China Health Law Society and the Beijing Law Society, legal advisor to the Beijing Youth Legal and Psychological Hotline, and a legal expert in Baidu’s expert advisory group. His cases have been widely reported in the Chinese print, electronic and online media. He is secretary of the Chinese Communist Party branch of his law firm.

Wei Liangyue Heilongjiang Jiaodian Law Firm Wei’s professional licence was suspended during the annual assessment and registration process in 2009 and had not been restored as of November 2009.

Wei has been active in representing the rights of property owners, as well as Falun Gong practitioners. He has been repeatedly warned by the authorities to stop representing Falun Gong practitioners and to stop entering not-guilty pleas for them. On 28 February 2009, Wei was detained along with his wife, Du Yongjing, for 30 days on accusations of “gathering a crowd to disturb social order” and “using a heretical organization to undermine implementation of the law” while attending a Falun Gong gathering.

Wei said, “If you believe your client is not guilty according to fact and law, you can submit a not-guilty plea. The Law on Lawyers includes stipulations to that effect, and also stipulates that a lawyer is not to be prosecuted on the basis of his defence in court. So I say that if I am being investigated and prosecuted for entering a not-guilty plea in a Falun Gong case, that is a great scandal for China.”

Li Shunzhang Beijing Giant & Goal Law Firm Li has handled a number of case involving Falun Gong practitioners, and participated in the campaign for direct elections in the Beijing Lawyers Association.

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Profiles of Prominent Chinese Rights Defence Lawyers 31

Li Jingsong Beijing Yitong Law Firm Li Jingsong was the lead lawyer in the defence team for “barefoot lawyer” Chen Guangcheng. While he and Li Fangping were travelling to Linyi to prepare an appeal for Chen in December 2006, they were dragged from a bus by thugs and beaten. The judges in the case met privately and upheld the original verdict without any of Chen’s lawyers present.

Li was also involved in the defence of Hu Jia and Yang Jia, and has defended the rights of property owners During a November 2006 visit to the United States, Li met with the Assistant Secretary of State responsible for Asia, Thomas J. Christensen.

Zhang Chengmao Beijing Anyuan Law Firm Zhang has represented victims of the Sanlu Milk Powder scandal, as well as householders displaced by urban development and Falun Gong practitioners.

Zhang served as legal counsel for She Xianglin, who in 2005 was released after serving 11 years in prison for murdering his wife, who was subsequently found to be alive.

In 2006 Zhang represented Ren Zhiyuan, a teacher who was jailed for 10 years for an Internet essay entitled “The Road to Democracy.”

Tong Chaoping Beijing Anhui Law Firm Tong has handled a number of peasant land rights cases. He was also active in the campaign for direct elections to the Beijing Lawyers Association, and qualified as a candidate in the 2009 election, but his name was not included on the ballot. His professional licence was suspended during the annual assessment in 2009 and had not been restored as of November 2009.

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32 A Sword and a Shield: China’s Human Rights Lawyers

Wei Rujiu Beijing Shengting Law Firm Wei was threatened with suspension of his professional licence in 2009, but he ultimately passed the assessment on 8 June.

Wei has handled environmental cases and the defence of religious practitioners, and offered to provide legal counsel to Tibetans detained after the 14 March 2008 Lhasa riots.

Wei was hired by the family of Huseyin Celil, a Canadian Uyghur, after Celil was arrested in Uzbekistan in March 2006 and transferred to the Chinese authorities in June 2006. However, Celil was sentenced to life in prison in April 2007 without being allowed to speak with his lawyers or the Canadian Consulate.

Among his notable cases, Wei defended lawyer Guo Guoting on the allegation of violating the constitution; he served as defence counsel for one of the defendants in the Zhejiang Dongyang Incident, and for the Three Kinds of Servants sect; he handled Bai Guanghua’s administrative lawsuit against the Tianjin municipal RTL committee (a classic case reported in the Supreme People’s Court Gazette) and the case of a Jilin corporation unlawfully accepting deposits from member of the public; and defended participants in a mass incident over an environmental issue in Cenxi, Guangxi Province.

Zhang Jianguo Beijing Taifu Law Firm Zhang’s professional licence was suspended during the 2009 assessment and registration process, and his appeal was rejected on 9 June.

Zhang has served as defence counsel for a number of Falun Gong practitioners.

Yang also served as defence counsel along with Li Fangping for Heilongjiang farmers’ representative and Olympics protester Yang Chunlin in 2008.

Sun Wenbing Liaoning Xinhe Law Firm Sun has served as defence counsel in a number of Falun Gong cases.

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Profiles of Prominent Chinese Rights Defence Lawyers 33

Source Documents In addition to the footnoted sources, the information above is largely drawn from the following articles: CHRLCG, “Large-scale Crackdown on the Eve of June 4th Prevents Nearly 20 Lawyers from Practicing their Profession,” 26 May 2009, http://www.chrlcg-hk. org/?p=420.

CHRLCG, “Weihu renquan huhuan fazhi jueshi kangbao guanggao tianxia: huyu quanqiu wanren tongbu dajueshi xuanyan” (Protect human rights, call for rule of law, hunger strike against tyranny announced to the world: An appeal for a mass hunger strike worldwide), 8 February 2006, http://www.chrlcg-hk.org/?p=81.

Human Rights in China, “Chinese Rights Defense Lawyers Under All-out Attack by the Authorities,” 8 June 2009, http://www.hrichina.org/public/ contents/ press?revision_id=169861&item_id=169791.

New Tang Dynasty Television (quoting Radio Free Asia), “Dalu bei kou zhiye zige lushi qianlian yuan buzhi 20 ren” (Confiscation of professional licences affects at least 20 lawyers), 3 June 2009, http://www.ntdtv.com/xtr/b5/ 2009/06/03/ a302389.html.

Radio Free Asia, “Sifaju bohui weiquan lushi chongxin zhiye yaoqiu” (Ministry of Justice rejects request to restore rights defence lawyers’ practice), 9 June 2009, http://www.rfa.org/cantonese/news/rights_lawyer-06092009122731.html/.

Radio Free Asia, “Peiluoxi fanghua qianxi Beijing weiquan lushi shoudao jiankong” (Beijing rights defence lawyers put under surveillance on eve of Pelosi visit), 25 May 2009, http://www.rfa.org/cantonese/news/rights_ lawyer-05252009112939.html.

Radio Free Asia, “Ba lushi jihua huijian Meiguo guohui renquan daibiaotuan chengyuan zao jingao” (Eight lawyers planning to meet with US Congress Human Rights Caucus members warned), 30 June 2008, http://www.rfa.org/mandarin/ yataibaodao/lawyer-06302008104427.html.

Radio Free Asia, “Zhongguo weiquantuanti huyu Renda chexiao weixiande zongjiao tiaoli” (China rights group calls for NPC to repeal religion regulation that violates Constitution), 11 December 2008, http://www.rfa.org/ mandarin/ yataibaodao/religion-12112008094428.html.

Zhongguo lushi guancha wang, “Zhishijie lushijie lianhe huyu feichu laodong jiaoyang zhidu” (Intellectuals and lawyers issue joint statement calling for abolition of the re-education through labour system), 29 November 2007, http:// www.ccwlawyer.com/center.asp?idd=1293.

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34 A Sword and A Shield: China’s Human Rights Lawyers

CHRLCG and other Hong Kong NGOs held a press conference on 24 November 2008 after the UN Committee against Torture (CAT) released its concluding observations on China and Hong Kong, which mentioned the situation of mainland lawyers.

A Hong Kong NGO delegation lobbied country representatives in Geneva on the Universal Periodic Review on China/Hong Kong by the UN Human Rights Council on 9 February 2009.

Albert Ho Chun-yan, chairman of China Human Rights Lawyers Concern Group, stages a 24-hour hunger strike every Wednesday, and John Clancey, international secretary of the Concern Group, keeps a 12-hour fast every Wednesday to support mainland human rights lawyers who are being subjected to repression.

CHRLCG chairman Albert Ho Chun-yan held a press conference with lawyer Gao Zhisheng’s wife, Geng He, in New York on 6 April 2009 to demand information about Lawyer Gao’s whereabouts.

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Profiles of Prominent Chinese Rights Defence Lawyers 35

Taiwanese lawyers, a legal NGO and CHRLCG co-organised a press conference entitled “20th Anniversary of June 4 Massacre, Mainland Chinese Lawyers Persecuted” on 2 June 2009.

Road show exhibition co-organised with the Hong Kong Alliance in Support of Patriotic Democratic Movements of China concerning human rights lawyers and human rights defenders in December 2008.

Demonstration outside the Central Government Liaison Office in Hong Kong on 22 July 2009 in protest against the Chinese government’s unreasonable clampdown on the Beijing civil organisation “Gongmeng” and suspension of human rights lawyers’ legal practice.

Demonstration at the Central Government Liaison Office in Hong Kong on 22 June 2007 to express deep concern over incidents of beating and detention of mainland human rights lawyers.

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Chapter One

Challenges to China’s Legal Profession

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China’s Human Rights Lawyers: Current Challenges and Prospects Jerome A. Cohen

Professor at the US-Asia Law Institute, New York University Law School, and Adjunct Senior Fellow, Council on Foreign Relations 1

In 1977 Victor H. Li published a stimulating book entitled “Law Without Lawyers.” China’s Communists, he suggested, because of their country’s distinctive tradition and culture, might blaze a new trail toward modernisation, one that, unlike their former Soviet model, had little need for lawyers. Yet Deng Xiaoping and his colleagues soon demonstrated that they thought otherwise.

After Chairman Mao’s death ended the chaos of the Cultural Revolution, China’s new leaders altered the Soviet model for economic development, but resurrected its political-legal system, including its reliance on “socialist lawyers.” Indeed, during the past three decades, the post-Mao leadership has increasingly expanded the roles of lawyers to help settle disputes, promote the evolving “socialist market economy,” foster international business cooperation and legitimate the punishment of serious offenders. In principle, contemporary Chinese lawyers are no longer Soviet-style “state legal workers” but independent professionals tasked with protecting citizens, including those at odds with the state. In fact, however, although their numbers, education and responsibilities have burgeoned, Chinese lawyers, like their Soviet predecessors, remain subject to significant restraints.

The Law on Lawyers amended in 2007 seemed to promise greater autonomy to human rights lawyers. Yet their plight has actually worsened in the 20 months since the 17th Communist Party Congress. The reconfirmed Hu Jintao-Wen Jiabao leadership placed veteran Party officials, without legal education or This is a slightly edited version of the opening statement delivered at the CongressionalExecutive Commission on China Round Table on “China’s Human Rights Lawyers: Current Challenges and Prospects” on 10 July 2009, http://www.cecc.gov/pages/ roundtables/2009/20090710/index.php.

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China’s Human Rights Lawyers: Current Challenges and Prospects 39

experience but with a strong police background, in charge of the Ministry of Justice and the courts as well as the Central Party Political-Legal Committee that instructs all legal institutions. These new appointees seem determined to eviscerate the country’s “rights lawyers,” who constitute a tiny fraction – perhaps one percent – of China’s almost 150,000 licensed lawyers. Local officials under the Ministry of Justice, and the local lawyers associations they control, quietly press activist lawyers not to participate in a broad range of “sensitive” matters or at least to follow their “guidance.” Such cases include not only criminal prosecutions of alleged Tibetan or Uyghur “separatists,” democracy organisers and Falun Gong or “house church” worshippers, but also claims against government for many kinds of misconduct and corruption, birth control abuses and forced eviction and relocation.

Even civil cases involving land transactions, environmental controversies, collective labour disputes and compensation for tainted milk and earthquake victims are off limits or controlled. The refusal to allow famous lawyer Mo Shaoping to defend public intellectual Liu Xiaobo against criminal charges arising from Charter ‘08’s call for political reform is only the best-known recent example of this interference.

Their license to practice law is frequently suspended or, as in many current instances, their local lawyers’ association simply fails to give the endorsement required for annual license renewal. Their law firms are coerced to dismiss them or risk being closed, as some have been, and Party organisations within law firms have been reinforced. Lawyers who fail to heed such “advice” suffer many sanctions.2 Often, ex-lawyers who remain undeterred from assisting controversial clients are prosecuted and sent to prison by authorities who stretch the vague language of criminal law to cover their actions. Unfrocked Beijing lawyer Gao Zhisheng was convicted of “inciting subversion.” Former Shanghai lawyer Zheng Enchong served three years for “sending abroad state secrets.” Shenzhen lawyer Liu Yao’s four-year sentence for “destroying property” was only reduced after an extraordinary petition from over 500 lawyers persuaded the authorities to end his 16-month detention. In each case conviction means permanent disbarment and loss of livelihood. Moreover, even self-taught “barefoot lawyers,” who are not licensed but play an important role in the countryside, have been sent to long prison terms on trumped-up charges, as in the case of the courageous Author’s note (AN): For a selection of essays and materials relating to sanctions against human rights lawyers, see e.g., “Rule of Law,” China Rights Forum, No. 1, 2009.

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40 A Sword and a Shield: China’s Human Rights Lawyers

blind man, Chen Guangcheng. Perhaps most troubling is the frequent physical intimidation of “rights lawyers.” Today is the 156th day since the “disappearance” of Gao Zhisheng. His torture while previously detained makes many fear that he is now dead, although the Chinese Government ridiculously claims he is free on probation.

Many lawyers, while seeking to meet with clients, have been beaten by police and their thugs. The well-known professor/activist Teng Biao not only lost his license to practice law but also was kidnapped and threatened by police.

I can testify from various personal experiences that many “rights lawyers” are closely monitored and restricted in their movements. Since his release from prison, Zheng Enchong’s life has been a nightmare of incessant summoning for questioning, illegal house arrest and casual police beatings, in addition to harassment of his wife and daughter. When six policemen barred me from visiting him and I asked for their legal authority, they merely kept repeating “We are police.” A sequel to Victor Li’s book might appropriately be entitled “Lawlessness Without Lawyers.”3 I should mention three other aspects of this topic that particularly deserve attention:

1) The relation of human rights lawyers to political reform There has been a difference of opinion among “rights lawyers” concerning the extent to which they should take part in political reform efforts. Some have maintained that, unless China undergoes democratic reforms that eliminate the Communist Party’s monopoly of power, prospects for a genuine rule of law will remain dismal. They therefore believe that “rights lawyers” must play an active role in promoting peaceful but major revisions to the political system.

Others – a majority so far as one can tell – agree that significant political reform is crucial to achievement of the rule of law but, given the prevailing climate of repression in China, they believe that at present lawyers should dedicate their energies to defending rights within the existing legal system, despite its defects and limitations. This does not preclude working for legislative improvements within the system as well as taking part in individual cases, but it does preclude direct challenges to the Party’s monopoly of power.

AN: The above remarks are a slight expansion of an article that I published in the 9 July 2009 South China Morning Post in Hong Kong and China Times in Taiwan (in Chinese). See www.usasialaw.org.

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China’s Human Rights Lawyers: Current Challenges and Prospects 41

Among “rights lawyers,” the unfortunate Gao Zhisheng was perhaps the leading proponent of opting for political reform. He not only represented Falun Gong and many other controversial clients but also courageously challenged Party rule, condemned the systematic torture of Falun Gong adherents and called for genuine democracy. As a result, as previously indicated, he was deprived of his license to practice law, tortured, convicted of “inciting subversion” and, on 4 February 2009, “disappeared.” Yet the frustrations confronted by “rights lawyers” occasionally tempt even those who operate within the system to enter the political fray. Many an eyebrow was raised when Mo Shaoping, previously an exemplar of the “professional,” non-political view, signed Charter ’08’s call for political reform.

2) Legal restrictions on the professional conduct of “rights lawyers” Earlier testimony before the Commission has detailed the plight of Chinese criminal defence lawyers.4 The extent to which the newly-amended Law on Lawyers may have improved the situation remains unclear. Some provisions in the amended Law, which was adopted just before the 17th Party Congress led to enhanced Party controls over the legal system, were designed to strengthen the rights of criminal defence lawyers and their clients. Yet other language in the new Law can easily be manipulated to restrict those rights in fact and to place vigorous lawyers in peril. This is especially true of Article 37, which makes lawyers vulnerable to criminal punishment for courtroom “language that endangers state security” among other things.

In the absence of extensive empirical research, which, because of the sensitivity of criminal cases, is difficult even for Chinese scholars to conduct, any assessment of the “law in action” is problematic. Yet even the “law on the books” plainly needs improvement. The Criminal Procedure Law, which last underwent substantial revision in 1996, must be updated to eliminate inconsistencies with the amended Law on Lawyers, and to deal with many long-unresolved issues concerning the lawyer’s access to his client and to relevant files, freedom to gather evidence and greater opportunity to participate in the trial. Fundamental questions, such as whether key witnesses should be made to appear at trial and thus be subject to cross-examination, have still not been answered 60 years after establishment of the People’s Republic!

AN: See, e.g., Jerome A. Cohen, “Law in Political Transitions: Lessons from East Asia and the Road Ahead for China,” 26 July 2005, http://www.cecc.gov/pages/hearings/072605/ Cohen. php.

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42 A Sword and a Shield: China’s Human Rights Lawyers

Moreover, the formal criminal process is not the only area where “rights lawyers” encounter frustrations. Daily press reports remind us that Chinese police continue to resort to the notorious but supposedly “non-criminal” system of “re-education through labour” (RTL), which authorises police – without participation of lawyers, prosecutors or judges – to sentence people to as long as three years of imprisonment for a broad range of ill-defined activity. The Ministry of Public Security, in its efforts to beat back proposals before the National People’s Congress to abolish RTL, has occasionally experimented with allowing lawyers to take part in RTL proceedings, but generally they are excluded. Usually, the lawyer’s only possible role is to assist people who have already been sent off to RTL confinement with an appeal for judicial review in the relatively few cases when the detainees are able to contact and hire counsel.

Because China’s courts are not allowed to consider challenges to government actions on Constitutional grounds, and because the Standing Committee of the National People’s Congress has been reluctant to utilise legislativelyauthorised procedures for entertaining Constitutional challenges, lawyers have not succeeded in demonstrating RTL’s constitutional flaws.

If the People’s Republic should ratify the International Covenant on Civil and Political Rights, which it signed in 1998, that would, at least in principle, expand the role of lawyers in criminal justice and other sensitive matters. As things stand today, however, lawyers are even restricted in their ability to represent the increasing number of groups who need legal assistance in seeking government relief for their grievances and in settling disputes. For example, the 2006 Guiding Opinion of the All China Lawyers Association forbids lawyers from helping groups of ten or more to petition government agencies; and they are required to inform, consult and heed local judicial administration officials and lawyers’ associations as well as other, unidentified “relevant agencies” regarding cases in which such groups retain them.

3) Licensed lawyers and “barefoot lawyers” By “barefoot lawyers” I mean laymen, not licensed lawyers, who have informally acquired some legal learning and who apply it, usually in the countryside, in advising people and representing them before courts and other agencies. Until his persecution by the local government in Shandong Province, the blind social activist Chen Guangcheng, now in prison, was a classic and famous “barefoot lawyer.” Unable to enlist the help of the few lawyers who practice in rural Yinan County, Chen, who wanted to persuade the county court to order the local government to cease various discriminatory acts against himself and other disabled people, decided to rely on his own efforts. He learned through practice

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China’s Human Rights Lawyers: Current Challenges and Prospects 43

and from several “do-it-yourself ” handbooks on litigation that were read to him by his family.

China has far too few lawyers in the countryside, and some counties have no lawyers at all. Furthermore, some lawyers do not want to take on certain types of cases, whether for financial, political or other reasons. Yet the demand for legal services is rising in the countryside because of economic and social progress and the rising “rights consciousness” among ordinary Chinese that has accompanied this progress. Other important factors are the growing sense of injustice and popular anger against official corruption, plus the government’s own propaganda that emphasises ruling the country according to law. Meeting the increasing need for legal services is a huge problem, and “barefoot lawyers” are an understandable, if insufficient, response. Yet China’s legal profession has not uniformly welcomed “barefoot lawyers,” fearing that, through incompetence or corruption, they would further sully the reputation of a profession that has experienced difficulty overcoming traditional Chinese distrust and disrespect.

Some rural lawyers worry that “barefoot” competition may infringe upon their income. Even some “rights lawyers” who hail from the countryside are wary of relying on “barefoot lawyers.”

Until the need for legal services in the countryside has substantially diminished, however, the wiser path would seem to be to offer basic legal training and perhaps certification to the many thousands of “barefoot lawyers” who are urgently required. An experiment worth emulating is the training program organised by Wang Chenguang, former Dean of Tsinghua Law School, with Ford Foundation support. Certainly the issue deserves empirical research and greater attention.

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What is the Role of China’s Lawyers?

Ong Yew-kim

Visiting Professor at China University of Political Science and Law

Introduction China’s lawyers have burst into the limelight, increasingly becoming a focus of international attention.

Countries throughout the world have established legal systems, and countless lawyers are representing clients in lawsuits and striving for success in the legal sphere, through which they can gain high prestige and reputations. Especially in countries such as the United Kingdom, the United States, Japan, France and Germany, where legal systems are exemplary and rule of law shines forth, lawyers enjoy status and respect as symbols of justice and fairness on par with judges. Why is it, then, that China’s lawyers have aroused so much concern?

Could it be a matter of disparity in national power, or differences in systems or cultures? No, it is none of these. In the final analysis, the overwhelmingly dominant factor is the very special role played by China’s lawyers. Among all the lawyers of the world, China’s lawyers have staked out their own unique responsibilities and mission, which are not derived from the universal values of legal professionals, but rather have been imposed on them by the authority of the ruling party, making China’s legal professionals into public functionaries and submissive instruments of the Party. It is only recently, as China’s lawyers have increasingly struggled to escape their official yokes, that they have been referred to as “lawyers dancing in shackles.”1 This essay will elaborate on the special role of China’s lawyers.

Translator’s note (TN): See Chinese Human Rights Defenders, “ Dancing in Shackles: A Report on the Situation of Human Rights Defenders in China (2007),” http://crd-net.org/ Article/Class9/Class11 /200805/20080501034205_8531.html.

1

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What is the Role of China’s Lawyers? 45

A lawless regime The founding of the People’s Republic brought nothing but bad news for China’s legal profession.

Although China’s civil war effectively ended with the establishment of the People’s Republic of China in 1949, China’s ruling party continued to busy itself with Land Reform and the Campaign to Suppress Counter-revolutionaries, followed by China’s backing of North Korea in the war with the US, and a string of tumultuous political movements. In addition, after the Chinese Communist Party (CCP) seized power from the corrupt Kuomintang regime, it completely dismantled the old state machinery, in particular abolishing the “six laws” – the Constitution, code of criminal procedure, code of civil procedure, criminal law, civil law and commercial law – and driving out all existing officials, lawyers and judges of the old military, police, prosecutorial and court systems, who were replaced with workers, peasants, soldiers and Eighth Route Army irregulars at all levels of the government bureaucracy. At that time, the primary focus of the CCP was to establish the dictatorship of the proletariat, for which purpose they strengthened the public security police as instruments of autocratic suppression and installed them within the procuratorates, courts and especially in lawyers’ organisations, where they could be employed in the suppression, attack, and purging of landlords, rich peasants, counter-revolutionaries and bad elements. Lawyers in particular were regarded as “mouthpieces of the enemy” and therefore as completely expendable, and the profession was allowed to dwindle through natural attrition or outright suppression and prejudicial treatment.

With the promulgation of the PRC’s first Constitution in 1954, the CCP embarked on a normalisation of the legal system, establishing separate public security, procuratorial and judicial organs, and reconstituting the legal profession in the form of a legal advisory office. This development was overtaken, however, by Mao Zedong’s sudden launching of the Anti-Rightist Campaign and Campaign to Eliminate Counter-revolutionaries, followed by the Triple Campaign against Corruption, Waste and Bureaucracy, the campaign against the last vestiges of private enterprise, and the Three Red Banners and People’s Communes movements, after which the entire country ultimately became enmired in the catastrophic three-year Great Famine. Veteran cadres within the Party attempted one after another to discuss and criticise these developments, but Mao retaliated by isolating his critics and resorting to the next level of officials, then launched the Cultural Revolution, which ultimately plunged

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46 A Sword and a Shield: China’s Human Rights Lawyers

the entire country into 10 years of chaos and ruin. Lawyers’ organisations were abandoned, and lawyers ceased to exist as a distinct profession.

The evolving definition of lawyers In 1978, CCP architect Deng Xiaoping brought order out of chaos as the Third Plenum of the Eleventh CCP National Congress negated Mao Zedong’s philosophies of uninterrupted revolution and class struggle. After the launch of reform and opening, with its dual emphasis on the economy and rule of law, 30 years of twists and turns finally put China on a productive path of socialist marketisation and rule of law, the brilliant economic achievements of which have won China the attention and applause of the entire world.

As market economics developed and expanded, rule of law followed along, however tardily and insufficiently. Public security, procuratorial and judicial organs proliferated nation-wide, and judges and procurators were rapidly appointed, accompanied by a very evident rejuvenation of the legal profession.

The number of lawyers rapidly increased, and they now number more than 140,000, a real achievement by any measure.

Apart from the widespread proliferation of law offices, the acceleration of legal training at the university level, and the rapid deployment of new law school graduates to serve economic development and society’s needs throughout the country, the drafting and promulgation of laws and regulations relating to the legal profession became another important aspect in developing the profession.

The 60 years since the founding of the People’s Republic have seen the promulgation of three sets of regulations governing the legal profession.

However, it was not until 1980, following the launch of reform and opening, that the initial “Provisional Law on Lawyers” was promulgated. The “PRC Law on Lawyers” was issued in 1996, with a third, substantially revised version implemented in 2007.

Apart from making relatively detailed provisions on the professional standards and organisation of lawyers, these three laws are most notable for the different definitions they apply to lawyers. These definitions serve as a clear indication of the changing role of lawyers in the PRC and the expectations of the current regime. Following are the legal definitions applied to lawyers in these three versions of the Law on Lawyers for the purpose of comparison:

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What is the Role of China’s Lawyers? 47

• Article 1 of the 1980 “Provisional Law on Lawyers” states: “Lawyers are the state’s legal workers.”

• Article 2 of the 1996 “PRC Law on Lawyers” states that lawyers are “practitioners who have legally obtained law licences and who provide legal services to society.”

• The 2007 “Law on Lawyers” amended Article 2 to state: “The term lawyers as stated in this Law refers to practitioners who have obtained a law licence in accordance with law and who are engaged or appointed to provide legal services to clients.”

The role of providing legal services to clients These changing definitions reveal the differing expectations that the Chinese government has held toward the role of lawyers at different times – specifically, in 1980, 1996 and 2007.

The 1980 stipulation of lawyers as “state legal workers” clearly distorted the image and role of lawyers. It put lawyers in the category of “state cadres” who must demonstrate absolute loyalty to the state and render services entirely in the interests of the state, standing alongside procurators and judges and singing in chorus as representatives of the state. It left no place for the client whose interests and entrusted objectives the lawyer was supposed to exclusively represent and serve, and constituted a clear conflict of interest that rendered it invalid. For that reason, China’s legal profession failed to thrive, as the lawyers who were previously labelled “mouthpieces of the enemy” were now derided as the “running dogs of the government.”

After the 1996 Law on Lawyers was promulgated, the role of lawyers underwent fundamental change from “state legal workers” to “practitioners providing legal services to society.” Although lawyers were allowed to shed the uniform of government cadres and don the suit of independent professionals, they were still encumbered with the duty to provide legal services to “society.”

As is well known, the state held the highest position in the social order, followed by society as a collective entity, and only then by the individual. This social order required everyone to take on the solemn duty of “serving the people,” which actually meant serving the state and society, and prohibited serving the individual. For that reason, although the second Law on Lawyers allowed lawyers to cast off the identity of government cadres, they were still required to

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48 A Sword and a Shield: China’s Human Rights Lawyers

“provide legal services to society,” while the term “society” was left vague and ill-defined. This represented only a half-way departure from cadres serving the state, and binding professional lawyers to the armoured vehicle of social (i.e. state) service rendered them unable to serve their proper function.

It was only with 2007’s amended Law on Lawyers that the role of lawyers was brought onto a plane more commensurate with the needs of a market economy and in closer conformity to international norms. This definition regards lawyers as “practitioners providing legal services,” on the condition that they obtain “law licences in accordance with law,” and that they go through the form and process of being “engaged or appointed” in order to “provide legal services” to clients.

The main focus of this latest amendment is the specific provision that lawyers must “provide legal services to clients.” This is extremely important, because it explicitly states that the object of the lawyer’s services is the client established through “engagement or appointment.” This is the only specially designated target of the lawyer’s services, and a lawyer is allowed to refuse legal services or even establish himself as an outright opponent to any other party.

Specifically designating lawyers as serving their “clients” reflects not only the special nature of lawyers, but also the nature of their work as a “service,” and distinguishes them from procurators, judges and other state functionaries.

Although lawyers obtain legal training in the same way as procurators and judges, and share their status as legal professionals, they do not share the official authority and official identity of procurators and judges. Lawyers can only rely on their deep knowledge of the law, their professional skill, their professional integrity, and the relative strength of their sincerity, honesty and willpower to provide legal service to their designated clients. The need to make a living, to survive and even to thrive, binds the lawyer to his or her client. This conforms to the practical needs of society. Put more concretely and clearly, in the course of serving their clients and defending their legal rights (as is their paramount duty), lawyers simultaneously defend social justice and fairness, and ultimately ensure the correct implementation of the law.

The elevated status of lawyers overseas According to the above analysis, China’s Law on Lawyers ultimately arrived at a definition of lawyers that can be summarised in three main points:

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What is the Role of China’s Lawyers? 49

1.

2.

3.

A lawyer is a practitioner who has obtained a law license; A lawyer has been engaged or appointed to provide legal services; A lawyer is a practitioner who provides legal services to a client.

None of these three elements is indispensable; the first two are the conditions for the third, that is, for serving as a practitioner providing legal services to a client. By fulfilling all three conditions, lawyers are differentiated from judges, procurators, government officials or other professionals such as engineers, accountants or doctors, or from business people, shop clerks or sundry riff-raff.

Only by meeting all three conditions can lawyers take on their social mission: 1) to defend the legal rights of their clients; 2) to defend social justice and fairness; and 3) to defend the correct implementation of the law.

Inquiries indicate that all countries in the world that enjoy democracy and rule of law have promulgated their own laws on lawyers, but not every advanced country has provided an optimal definition for lawyers. In some countries, the definition is in fact even more simplistic and vague than that provided in China’s second Law on Lawyers in 1996.

For example, Article 1.3 of the American Bar Association’s “Model Rules of Professional Conduct” stipulates: “A lawyer shall act with reasonable diligence and promptness in representing a client.”2 Article 1 of Japan’s Practicing Attorney Law states: “1) A practicing attorney is entrusted with a mission to protect fundamental human rights and to realise social justice. 2) A practicing attorney shall, in keeping with the mission specified in the preceding paragraph, sincerely perform his/her duties and endeavour to maintain the social order and to improve the legal system.”3 Although the legally stipulated definitions applied to lawyers in overseas legal jurisdictions are not necessarily perfect or precise, the legal systems of those countries are very strong, rule of law is fair and impartial, citizens are lawabiding, and governments carry out their business in accordance with law. Even though disputes and lawsuits constantly occur, they are ultimately resolved, and these countries have enjoyed long-term peace and social order. In particular, lawyers in these countries are diligent and competitive, and appropriately fulfil (TN) This rule can be accessed at the ABA website: http://www.abanet.org/cpr/mrpc/ rule_1_3. html.

3 (TN) This English translation is provided at http://www.nichibenren.or.jp/en/about/pdf/ practicing_ attorney_law.pdf.

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50 A Sword and a Shield: China’s Human Rights Lawyers

their duties to their clients in resolving legal disputes. They generally attain achievement and social status, and enjoy the respect and admiration of their fellow citizens and their governments.

The professional hardships of China’s lawyers Looking back at the vicissitudes of China’s legal profession over the last 30 years is a depressing exercise. Although on its surface the amended Law on Lawyers clearly defines lawyers as “practitioners providing legal services to their clients,” in actual practice, lawyers encounter obstacles, delay tactics, derisive treatment, physical beatings and detention, especially rights-defence lawyers who out of their deep sympathy and sense of conscience take on the impoverished and underprivileged as their clients. Although these lawyers are few in number, the oppression they face is even greater than that of most lawyers; they have come to be regarded as a “subculture” of the legal profession, or have been depicted, as in the overseas press, as “lawyers dancing in shackles,” and for that reason have attracted great concern within China and abroad.

After 30 years of reform and opening and profound judicial reform, why do China’s lawyers continue to struggle under oppression, and why are they still unable to fulfil their duty and mission as described in the Law on Lawyers by boldly defending their clients’ rights and sparing no effort in fighting for social justice and the proper implementation of China’s laws? Following are some key reasons: 1.

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Lawyers have never enjoyed particularly high status in China, and following Liberation they were simply swept out the door as feudalist pettifoggers and capitalist class elements who had spoken on behalf of criminals. In the first 30 years of the People’s Republic, they dwindled and drifted in the tempests of political turmoil. It was only when Deng Xiaoping proposed reforms by taking the economy in one hand and rule of law in the other that they were able to pull themselves back to the surface on the coattails of rule of law, but their political status remains inferior to that of their public security and judicial colleagues. In court they are supposed to enjoy an equal footing with procurators and judges, but they are still routinely berated by judges, and in the practice of their profession they have to put up with the bad attitude of public security officials and the resistance of procuratorial and judicial officials, while being constantly denied access to government departments. Bowing under the constraints imposed on them, how can they fulfil their professional duties to their clients?

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What is the Role of China’s Lawyers? 51

2.

In the environment in which they must practice, which has not improved under the amended Law on Lawyers, they continue to face constant traps and pitfalls full of thorns and brambles into which the slightest misstep will send them tumbling. This is the main reason for the approximately 30 percent decline in the number of criminal cases lawyers have been willing to take on. The current environment presents practicing lawyers with the following major difficulties: i. Accusations of falsification of evidence Article 306 of the Criminal Law specifies as a crime when “any defender or law agent destroys or falsifies evidence, assists parties concerned in destroying or falsifying evidence, or threatens or lures witnesses to contravene facts, change their testimony or make false testimony.” The stipulation on “luring witnesses to change their testimony” allows a witness to easily place the blame on his attorney if he changes his testimony in the course of a case and comes under investigation by public security officials. This provision is very vague and its application excessively broad, providing a convenient opportunity for unscrupulous judicial officials to retaliate against lawyers. According to the “All China Lawyers Association Work Report on Rights Defence,” 347 lawyers were prosecuted for this crime between 1999 and 2002. ii. Difficulty obtaining evidence Article 306 not only sets up land mines for lawyers, but also dampens their enthusiasm for investigating and obtaining evidence and makes them excessively dependant on the evidence collected by public security and procuratorial officials. This evidence is by definition heavily biased against the defendant: why would public security and procuratorial officials zealously seek out evidence detrimental to the prosecution’s case? It is much better for a lawyer to take the initiative in investigating evidence beneficial to his client. The lawyer is blamed no matter what he does, and this greatly interferes with a lawyer’s ability to effectively practice his profession. iii. Difficulty learning the facts of a case One of the profession’s greatest difficulties lies in lawyers being deprived of their right of access to the facts. Lawyers have the right to participate in the investigation, prosecution and judgment of a case from beginning to end, and to provide legal services to their clients at all three stages, but the Criminal Procedure Law does not clearly and specifically stipulate how

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52 A Sword and a Shield: China’s Human Rights Lawyers

much access to information lawyers are entitled to at these three stages.

The relevant organs will not take the initiative to notify a lawyer about developments in a case, especially situations in which a defendant has been deprived of his liberty beyond the legal time limit. This results in violation of the defendant’s lawful rights, for which the defendant tends to place the blame on his lawyer. iv. Difficulty meeting with a defendant Difficulty in arranging a meeting with the defendant poses a particularly serious hardship for a legal defence, even though the right of a lawyer to meet with a defendant at the first opportunity is a basic right under the Criminal Procedure Law. Chinese law includes provisions, however rudimentary, under which a lawyer can meet with his client and gain an understanding of the case right from the very first interrogation or initial taking into custody.

For example, Article 96 (1) and Article 36 (1) and (2) of the Criminal Procedure Law separately stipulate the right of a lawyer to meet with a criminal suspect or defendant at the investigation stage, at the stage where the procuratorate files in indictment, and at the stage when the court accepts a case. The Supreme People’s Court, Supreme People’s Procuratorate and the Ministry of Public Security all subsequently issued judicial interpretations and supplementary regulations regarding the range of cases, time, place and other circumstances under which a lawyer can meet with his client. Article 33 of the new Law on Lawyers also stipulates that the first time a criminal suspect under investigation is interrogated or taken into custody, the lawyer engaged to handle his case is authorised, after presenting his law licence, a certificate from his law office and a letter of appointment from his client or legal aid service, to meet with the suspect or defendant unmonitored. This new item represents a breakthrough from the Criminal Procedure Law and the previous judicial interpretations and supplementary regulations, and is seen as a major step forward in protecting lawyers’ right to meet with their clients. It lacks enforceability, however, and has been very difficult to implement in practice.

For example, Public Security organs take the position that the Criminal Procedure Law, which has not been amended, takes precedence over the amended Law on Lawyers, and they openly obstruct lawyers from meeting with their clients at earliest opportunity, with the result that lawyers experience the same difficulties as in the past.

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What is the Role of China’s Lawyers? 53

According to a report in China Youth Daily on 7 July 2003, Beijing’s Heiding District Procuratorate carried out a comprehensive inspection of all the detention centres under its jurisdiction, and a survey of 177 individuals in custody showed that only 14.6 percent had met with their lawyers during the investigation stage, with an average of 1.3 meetings per detainee, and each meeting lasting an average of 24 minutes.4 v. Difficulty reviewing case files Apart from difficulties in meeting with a client, lawyers face problems in reviewing case files. Lawyers are given access to only a portion of the case files held by the public security, procuratorial and judicial organs regarding a criminal suspect or defendant; other portions are withheld from a lawyer because they involve “state secrets” or are “irrelevant to the case,” or sometimes without any reason being given at all.

Lawyers should be able to review case files in their entirety; the relevance of the evidence should not be left to the judgment of public security, procuratorial or judicial organs, but rather to the lawyer engaged by the defendant or suspect – that is the only way to ensure that the defendant’s legal rights are properly defended. However, nothing has been done to address this difficulty up to now.

It is clear by now that the “three great difficulties” – investigating and examining evidence, meeting with a client and reviewing case files – are the main factors preventing lawyers from fulfilling their sacred duty toward their clients.

Raising the integrity and political standing of lawyers Legislative amendments and improvements in the conditions under which China’s lawyers practice their profession are not enough to normalise their role and allow them to fulfil their sacred mission; this also requires simultaneously strengthening their professional integrity and raising their political status. In fact, these two factors are complementary and mutually conducive. A lawyer lacking professional integrity and competence cannot hope to elevate his political status; likewise, no lawyers who enjoy high political status and social fame are incompetent, corrupt or despicable.

(TN) See “Yao qieshe baozhang lüshide jieruqiang” (Lawyers’ right to intervention must be ensured in practice), Nanfangwang, 8 July 2003, http://big5.southcn.com/gate/big5/www. southcn.com/news/china/gdspcn/200307080492.htm.

4

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54 A Sword and a Shield: China’s Human Rights Lawyers

Acting as a qualified lawyer in China requires upright behaviour, a high standard of personal integrity, professional initiative, a sense of justice and fairness, and a willingness to fight for a just cause. The traditional standard of behaviour in China in personal and professional dealings is that “cultivation of moral character, effective household management and good national governance lead to a peaceful society.”5 The starting point for lawyers in their social conduct is thus to raise their character and behaviour to the highest plane so that they can take on the role of an upstanding Chinese lawyer.

For this reason in particular, the various corrupt and debased practices currently employed in China’s legal profession need to be thoroughly eliminated: the venality that compels some lawyers to accept only lucrative civil suits and reject far less remunerative criminal cases; colluding with a client to falsify evidence to the detriment of innocent parties; reaching mutually advantageous arrangements with judicial and procuratorial officials to draw benefit from both sides of a lawsuit; the cursory and careless handling of criminal cases involving the poor and disadvantaged so that the defendant’s human rights are not properly defended; using one’s social connections to profitable ends without considering the legal basis of a case; and finding every excuse to decline unprofitable rights defence cases, such as those involving lawsuits by private citizens against officials and accusations of official malfeasance, in particular cases involving petitioners, unlawful clearance, removal and appropriation of funds in property development projects, and other cases in which ordinary citizens attempt to redress injustice. Until these corrupt practices are abolished, China’s lawyers cannot hope to fulfil with dignity the proper role of lawyers, not to mention their moral obligations as human beings.

I recently read an article by a mainland legal scholar, Wang Rongli,6 which proposed objective means of assessing the work of lawyers in the form of 13 standards. I believe these are very appropriate to the role of China’s lawyers, and list them below: 1.

2.

3.

A lawyer’s work attitude should be sincere, responsible and objective.

A lawyer should scrupulously abide by professional ethics.

A lawyer should observe the professional code of lawyers.

(TN) From The Analects of Confucius, the Great Learning, Doctrine of the Mean.

(TN) A Shenzhen-based lawyer who crusades against corruption. See http://en.wordpress. com/ tag/wang-rongli/. The author provides this citation for the specific article: Wang Rongli, “Ruhe keguan pingjia lüshide gongzuo” (How to objectively assess the work of lawyers), Fazhi ribao (Legal daily), 14 October 2007.

5 6

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What is the Role of China’s Lawyers? 55

4.

5.

6.

7.

8.

9.

10.

11.

12.

13.

A lawyer should provide counsel and explanations to his client in a timely and accurate manner.

A lawyer should make timely and accurate projections to the best of his abilities.

When speaking on behalf of his client, a lawyer should express himself clearly and with conviction.

A lawyer should draft legal documents that conform to professional standards.

A lawyer should be diligent and conscientious in providing legal services.

A lawyer should provide his client with reasonable suggestions and opinions and assist his client in reaching an appropriate decision.

A lawyer’s work should provide his client with all necessary succour.

A lawyer should do all in his power to guard against error.

The result of a lawyer’s work should be as satisfactory as possible to his client.

A lawyer’s work should help improve the legal knowledge of his client.

These aspects of personal integrity and work attitude are no doubt factors in the difficulties China’s lawyers currently face in practicing their profession and fulfilling their professional roles. They also affect the ability of lawyers to raise their political standing, and cause them to be denounced throughout society and treated with derision and bias by government organs and the state.

Correcting the aforementioned abuses would at the very least form a solid foundation for improving the political standing of China’s lawyers.

In mainland China, the outstanding achievements of lawyers are not sufficiently acknowledged and supported by society; this will require the energetic support of Party and government officials and a turnaround in the erroneous views state cadres hold toward lawyers, for example: “Lawyers are the mouthpieces of criminals,” “Lawyers are the spokesmen of the capitalist class,” “Lawyers are always opposing the government,” “Lawyers are unscrupulous,” and so on. The government’s contribution to elevating the political standing of lawyers can be divided into three parts: 1) Completely revise all laws that are detrimental to lawyers in executing their professional duties, and provide ample safeguards for the right of a lawyer to “provide legal services to his client”; 2) enhance knowledge of the role of lawyers and cooperation with their actual work among all government officials, especially those in public security, procuratorial and judicial organs; 3) encourage and safeguard the political rights of lawyers to participate, access information and express their views at all levels of government and in society; bring lawyers to an equal standing with judges, procurators and other government officials under which all submit

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56 A Sword and a Shield: China’s Human Rights Lawyers

equally to the law and act in accordance with law in fulfilling their separate responsibilities, while joining together in the struggle to build a harmonious socialist society under democracy and rule of law.

3 September 2009 Translated by Stacy Mosher

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Between a Rock and a Hard Place: China’s Criminal Defence Lawyers Cheung Yiu-leung

In China, criminal defence law is a high-risk occupation. Among more than 10,000 lawyers currently practicing in Beijing, only about one in ten takes on criminal defence work. From what I have been able to learn from insiders in the profession, only about 100 of these lawyers can actually be considered specialised criminal defence lawyers. This is a shockingly small proportion in a metropolis of 17 million people that boasts the highest concentration of outstanding lawyers and law firms in China.

This article seeks to provide a better understanding of why so few lawyers are willing to engage in the “high-risk” occupation of criminal defence by exploring the various difficulties that China’s lawyers currently face.

Systemic difficulties The difficulties lawyers face once they agree to take on a criminal case are explored in detail in other articles in this volume, so I won’t repeat them here.

Instead, allow me to elaborate on several other difficulties, starting with the variety of problems that the judicial system presents to lawyers who wish to engage in criminal cases. These problems prevent lawyers from fulfilling their professional duties, and sometimes cause lawyers themselves to suffer extreme personal hardship.

The Criminal Procedure Law The years following promulgation of the PRC Criminal Procedure Law on 17 March 1996 saw promulgation of several related laws and regulations, most of which firmly established and to some extent provided for the right of a defendant to defence counsel, the role of a lawyer as defence counsel, and

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58 A Sword and a Shield: China’s Human Rights Lawyers

the lawyer’s powers and responsibilities in that role. Although the Criminal Procedure Law and related provisions establish the legislative basis for the basic principle of the right to legal defence, including the actual procedures for exercising this right, how do these laws work in practice?

Let’s look at an example: In accordance with the Criminal Procedure Law, at the stage when a case is being examined for prosecution, a defence lawyer may apply to the People’s Procuratorate – or when necessary, at the trial stage, to the People’s Court – to collect and obtain evidence from the plaintiff or prosecution witnesses. In reality, the vast majority of these applications are not granted, and the rationale for their rejection is almost always that the lawyer’s inquiries are unnecessary or that they may exacerbate conflict. Sometimes the request is simply ignored altogether.1

Article 306 of the Criminal Law Although the law grants defence counsel the right to investigate and obtain evidence from prosecution witnesses, apart from the afore-mentioned obstruction by investigation and prosecution organs, there is another very important reason why only a tiny minority of lawyers ever make such a request: fear.

The cause of this fear is Article 38 of the Criminal Procedure Law and the notorious Article 306 of the Criminal Law, which impose criminal sanctions on lawyers for perjury or falsifying evidence.

Article 38: “Defence lawyers and other defenders shall not help criminal suspects or defendants to conceal, destroy or falsify evidence or to corroborate their testimony, and shall not intimidate or induce witnesses to modify their testimony or give false testimony or conduct other acts to interfere with the proceedings of the judicial organs.”

Article 306: “During the course of criminal procedure, any defence counsel or law agent who destroys or falsifies evidence, assists concerned parties in destroying or falsifying evidence, or threatens or lures witnesses to contravene the facts, change their testimony or make false testimony, is to be sentenced to not more than three years of fixed-term imprisonment or criminal detention; and when the circumstances are severe, to not less than three years and not more than seven years of fixed-term imprisonment.”

TN: See Articles 36 and 37 of the PRC Criminal Procedure Law.

1

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Between a Rock and a Hard Place: China’s Criminal Defence Lawyers 59

In addition, there is the real fear of threats against personal safety or retribution from the prosecutorial organs, which are detailed below. The work load for a criminal defence case is inevitably heavier, and the responsibility greater, combined with the higher risk and relatively poor remuneration, all of which no doubt further discourage many lawyers from taking on such cases.

Regarding the historical background of Article 38 and Article 306, it is worth noting that the passage of those provisions under the Criminal Procedure Law has all along been regarded as providing legislative effect for a criminal lawyer’s right to provide criminal defence to a suspect, to access and examine case files and to collect evidence (see Articles 32 through 38 of the Criminal Procedure Law), and as representing a compromise on the part of prosecutorial organs. But the actual result has been for the prosecutorial organs to maintain their grasp on the knife that dangles over the heads of criminal defence lawyers. According to unofficial statistics, in the last 10 years at least 500 lawyers have been prosecuted under Article 306 for the crime of collusion to falsify evidence. At a major symposium in 2006, I heard a spokesman for the Beijing Procuratorate say in his speech that in contrast to the near 100 percent conviction rate in typical criminal cases, prosecutions of lawyers under Article 306 resulted in convictions in only slightly more than 20 percent of the cases, or less than one out of four, from which he concluded that China’s lawyers should not be unduly concerned over Article 306.

I cannot confirm the accuracy of the conviction rate quoted by the procuratorate spokesman, but if it is accurate, what it illustrates is that more than 70 percent of the criminal defence lawyers prosecuted under Article 306 are innocent, yet have undergone wrongful arrest, detention, interrogation, prosecution and trial at the hands of the prosecutorial organs, experiencing this physical and mental torment for a year or more until their freedom was restored. No legal professional will rashly expose him or herself to the risk of attack through this kind of prosecution.

In many cases, lawyers who have been vindicated of guilt under Article 306 still find it impossible to continue practicing professionally, and they and their family members often have difficultly recovering from the material and psychological injury they have suffered for years afterward. I know of one ultimately vindicated lawyer who dealt with his injury by leaving the profession and becoming a monk in the southwest. In addition, incomplete statistics indicate that in the years following implementation of Article 306, more than 100 lawyers have been imprisoned, most on the charge of “falsifying evidence,”

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60 A Sword and a Shield: China’s Human Rights Lawyers

but that most of them were subsequently found to have been wrongly convicted.2 Can it not be further said that this low conviction rate actually shows how easily prosecution of lawyers for this crime can be abused? What actual value is there in a charge with such a low conviction rate and such great potential for abuse?

For all of the strong opinions China’s lawyers have expressed against Article 38 and Article 306, in actual practice in China’s judicial and legal system, the public prosecution organs find ways to obstruct defence lawyers whenever they attempt to participate in, investigate or obtain evidence. The hardships criminal defence lawyers face when they attempt to perform their full professional function have not been ameliorated in any way by the legal provisions in the Criminal Procedure Law.

Witnesses failing to testify in court Another difficulty faced by China’s criminal defence lawyers is the failure of witnesses to testify in court. According to Article 47 of the Criminal Procedure Law, “The testimony of a witness may be used as a basis in deciding a case only after the witness has been questioned and cross-examined in the courtroom by both sides, that is, the public prosecutor and victim as well as the defendant and defenders, and after the testimonies of the witnesses on all sides have been heard and verified...” In actual practice, however, the incidence of lay witnesses giving testimony in criminal court cases is extremely low, as is the percentage of public security officers who appear in court to provide testimony. In my examination of the percentage of witnesses appearing in court, I refer to the figures collected over a five-year period by the Human Rights Research Centre of the Peking University Law School and published in the book referenced above, A Factual Examination of the Criminal Defence System (hereafter referred to as Factual Examination).3

AN: See Xingshi bianhu zhidu de shizheng kaocha (A factual examination of the criminal defence system), Peking University Law School Human Rights Research Centre (ed.), Beijing daxue chubanshe, 2005, p. 202; and Liu Wenyuan, Lüshi weiquan anlixuan (Selected lawyer rights defence cases), Jilin renmin chubanshe, 2003, p. 1. TN: For an English summary of some cases from the latter book, see Stacy Mosher (tr.), “In Custody: Lawyers in Detention,” China Rights Forum, No. 2, 2005, http://www.hrichina.org/public/PDFs/CRF. 2.2005/2.2005-RF-Custody.pdf.

3 AN: Xingshi bianhu zhidu de shizheng kaocha, op. cit., pp. 9-116.

2

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Between a Rock and a Hard Place: China’s Criminal Defence Lawyers 61

The figures collected and analysed in Factual Examination were compiled from 1997 to June 2002. As regards the incidence of witnesses appearing to testify in court, among all criminal cases handled by Beijing criminal defence lawyers, the proportion that had witnesses appearing in court averaged 25.2 percent during these five years; that is, only one out of every four criminal cases had witnesses testifying in court. Given that there are usually several witness statements for every criminal case, the proportion of these witnesses who actually appear in court was even lower than this overall case average.

Low as this figure is for the Beijing court system, the authors of Factual Examination found that it was actually the highest of any Chinese jurisdiction.

Based on an examination of statistics provided in the book for several provincial and county courts, I calculated that the rate of citizen witnesses appearing in court was typically only 5 to 10 percent.

The authors of Factual Examination found, however, that the rate of testimony in court was even lower for public security officers involved in investigating the cases. In Beijing for the five years under examination, the incidence of investigating officers testifying in court averaged only 2 percent.

A few years ago, a high-level judge from one of China’s provinces came to Hong Kong to learn more about the court system here, including how police officers provided testimony in court. He remarked with amazement to me, “Our public security officers don’t appear in court!”

There are many complicated reasons for the low percentage of witnesses appearing in court, and the authors of Factual Examination list many of them.

I believe the most important reasons are the following:

The attitude of the court Judges generally have a negative attitude toward witnesses appearing in court.

The research above, for example, found that Beijing courts rejected 82.6 percent of defence counsels’ applications to call witnesses to testify in court. Likewise, 59 percent of applications to call investigating officers as witnesses were also rejected.

Professor Chen Ruihua of the Peking University Law School points out that defence lawyers have all along confronted the problem of “judicial imperiousness.” In my personal observation, this is revealed in an arbitrary and slighting attitude of judges toward lawyers, and judges peremptorily cutting off lawyers’ submissions or their examination of witnesses, and undermining

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62 A Sword and a Shield: China’s Human Rights Lawyers

their participation in the trial process. Of course China’s judiciary is not independent, and without Common Law’s fundamental principle of presumption of innocence, trial judges are inclined towards the prosecution’s inference of the defendant’s guilt. Given that defence counsel’s request to call a witness might ultimately undermine the prosecution’s case, judges inevitably hesitate to allow it.

The attitude of the procuratorate Another reason is that procurators do not support, and sometimes even obstruct, witnesses’ testimony in court. The authors of Factual Examination bluntly observe that the crux of this phenomenon is that witness statements often include falsehoods, and public prosecutors are naturally unwilling for these lies to be exposed under cross-examination during trial. Factual Examination cites the following analysis, which hits the nail on the head: In the words of one veteran procurator, one reason that witnesses do not appear in court is that “the evidence is false or inadequate, and the prosecution does not dare allow the witness to testify in court. One phenomenon is for the evidence to have been extorted by the prosecution through torture, or to have been manufactured by the prosecution, and the facts of the case simply do not exist. For that reason, the prosecution can by no means allow the false witness to testify in court, for fear of the game being given away. Another phenomenon is for the prosecution evidence to be inadequate or internally contradictory, or for witnesses to withdraw their testimony. The prosecution is unwilling to allow the witness to testify in court for fear that these loopholes will be exposed.”4 In the final analysis, the reason witnesses don’t appear in court is that the omnipotent state organs of public security, public prosecution and courts do not exercise the authority or perform the responsibility entrusted to them under law to take all necessary steps to ensure that witnesses testify in court, rather than simply claiming that witnesses are unwilling to appear. Of course, Chinese law up to the present does not have a comprehensive law of evidence, and written witness statements are still accepted by the courts as evidence of guilt when a witness does not appear in court. This is one reason why the public security and prosecution side is not required to sincerely address the failure of witnesses to appear in court.

AN: Jiang Bingren, Xingshi shenpan qianyan wentai (Forefront problems of criminal trials), Zhongguo minzhu fazhi chubanshe, 1999, pp. 59-60.

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Between a Rock and a Hard Place: China’s Criminal Defence Lawyers 63

Threats against defence witnesses An even more horrifying phenomenon is threats or retaliatory attacks against defence witnesses who agree to testify in court. Statistics provided in Factual Examination show that during the time period under examination, an average of one out of every 20 cases handled by Beijing’s criminal defence lawyers had a defence witness refuse to testify because of obstruction or even threats on the part of the prosecution. Even more ironic is the fact that the number of witnesses who refused to testify because of obstruction or threats by the prosecution was 11 times greater than the number of prosecution witnesses placed under witness protection by state organs during that same period.

The analysis above is borne out in a case that occurred recently.

There has been considerable concern over the case of Sichuan rights defender Tan Zuoren, who was put on trial as a result of his investigations into the reasons why so many people died in substandard buildings during the 2008 Sichuan earthquake. The trial opened in Chengdu in August 2009, and well before then, defence attorneys Xia Lin and Pu Zhiqiang, pursuant to the court’s requirement, provided the names of three defence witnesses, and requested that the court formally notify the three witnesses to appear in court to testify.

All three witnesses had in fact agreed in advance to appear in court and testify for the defence. Yet the court not only did not issue a formal notice to the witnesses before trial, but on the day of the trial, when two of them arrived at court, they were refused admittance. Aside from that, during the trial, the judge constantly interrupted defence counsel during their questioning of witnesses so that a cohesive testimony was impossible. When defence counsel requested permission to call their own witnesses who were waiting outside the court, the judge denied the request on the basis that the witnesses had “no relevance to the case.”

But what of the third defence witnesses in Tan Zuoren’s case? This third witness was the famous Beijing architect Ai Weiwei. Early in the morning on the day of Tan Zuoren’s trial, Ai was in his Chengdu hotel room when public security policy burst in and without explanation began savagely beating him. Police then began a search of Ai’s room, a process that continued until Tan Zuoren’s trial ended at noon.

Hong Kong residents are also well aware that while public security police were assaulting Ai Weiwei in his hotel room, two female Hong Kong television reporters who were in Chengdu to cover Tan Zuoren’s trial also experienced a surprise early-morning visit from public security police, who on the pretext of

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64 A Sword and a Shield: China’s Human Rights Lawyers

searching for drugs deprived the reporters of their freedom until, coincidentally, Tan Zuoren’s trial ended.5

Public security violations of lawyers’ personal safety in the course of performing their professional duties Apart from the aforementioned threat posed by Article 306, China’s lawyers often face various forms of occupational retribution from police and prosecutors in the course of executing their professional duties, including being summoned for interrogation, unlawful detention, abduction, beating and obstruction.

Another survey presented in Factual Examination (p. 202) found that wrongful acts were routinely committed against lawyers in the course of their professional duties. The book quotes “Beijing Lawyers Association Rights Defence Cases 1996-2002” as stating: Violations of the right of lawyers to carry out their professional duties take many forms: in some cases, procuratorial organs put pressure on witnesses and coerce witnesses into accusing lawyers of falsifying evidence, as in the Ding Dedong case; in other cases, judicial procedures themselves result in slip-ups in processing evidence, resulting in blame being shifted to the lawyer, as in the Fang Fugen case; in yet other cases a lawyer suffers violation of his person or reputation for no reason at the hands of state authorities, as in the Mu Jing case; and in other cases, for a variety of reasons, the authorities deprive lawyers of their right to practice their profession, as in the expelling of Han Bing and Liu Wen. In each of these cases, without exception, lawyers suffered unnecessary physical, material and psychological harm. Yet these cases represent only the “tip of the iceberg,” and it can be said that many more cases occur on a regular basis without ever coming to public notice.6 In actual judicial practice, lawyers who commit minor misconduct (for example, actions that violate professional discipline; or that are illegal without being criminal; or a criminal act less serious than that alleged by the public prosecution) are routinely subjected to wrongful investigation, detention and TN: See Reporters Without Borders, “Defence witnesses and journalists held in hotel while blogger’s trial takes place,” 13 August 2009, http://www.rsf.org/Defence-witnessesand-journalists.html.

5

TN: For further details on some of these cases, see Hualing Fu, “ When Lawyers are Prosecuted: The Struggle of a Profession in Transition,” working paper, May 2006, http:// papers.ssrn.com/sol3/papers. cfm?abstract_id=956500.

6

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Between a Rock and a Hard Place: China’s Criminal Defence Lawyers 65

arrest and other such administrative or criminal compulsory measures. In a typical recent case, Xu Zhiyong, the head of Beijing’s Open Constitution Initiative (also known as Gongmeng), was beaten by public security police in 2008, and in 2009 the firm was fined 1.4 million yuan for alleged tax evasion, after which Xu and a colleague were detained and lost all contact with the outside world. Such instances of abduction, beating and obstruction of lawful business operations are all too common, and the violence sometimes reaches extreme levels. According to the All China Lawyers Association Rights Defence Work Report, Jiangsu lawyer Zhou Jian, having taken on a criminal defence case, was suddenly set upon by a gang of unidentified men, who abducted and beat him, then taped his mouth shut, shackled his hands behind his back, and covered his head with a hood while continuing to torture him. It was subsequently discovered that Zhou’s abductors were public security officers from a certain city.

According to figures provided by the All China Lawyers Association, there has been no improvement in the situation of lawyers’ rights being violated in this way. These violations take numerous forms. Some arise from bias or revenge on the part of public prosecutors, who take the initiative to investigate a lawyer’s personal or professional dealings and leap at any pretext to take him into custody. In other cases, investigating organs detain someone and then cobble together some crime with which to charge him; in others, they detain a witness who subsequently provides them with an allegation. In some cases, before a trial is finished, a lawyer finds himself locked up in the same detention centre as his client. In others, the trial starts only after the lawyer is detained, thus depriving the defendant of his legal counsel. Sometimes courts hold trials against lawyers from which they should recuse themselves, or over which they have no legal jurisdiction. All these are in addition to the countless incidents of lawyers being abducted, assaulted and unlawfully detained without cause.7

State controls over the legal profession According to the PRC Law on Lawyers, the legal profession comes under the examination and approval of the Ministry of Justice. The Ministry of Justice is empowered to carry out supervision and guidance of law firms and lawyers associations.

AN: Full details of these cases are provided in the All China Lawyers Association Rights Defence Work Report, available on the website of the All China Lawyers Association, http:// www.chineselawyer.com.cn/pages/index.html.

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66 A Sword and a Shield: China’s Human Rights Lawyers

The annual registration of lawyers’ licences, including the examination and approval process typically referred to as the “annual inspection,” is an important administrative measure for managing the legal profession. There is no denying that in a profession comprised of nearly 140,000 lawyers nationwide, there will be wide variation in professional quality, and various lawyers associations have reported numerous instances of lawyers who are “substandard” or lacking in professional integrity to the All China Lawyers Association. It is uncertain how many “unqualified” lawyers are weeded out through the annual registration process. What is certain, however, is that lawyers such as Jiang Tianyong and Li Heping, who have handled sensitive rights defence cases such as those representing Falun Gong practitioners or displaced householders, have had their registration delayed and have only been able to renew their professional licenses after months of struggle.

In recent years, individual lawyers and law firms have come under pressure from lawyers associations and justice bureaus to refuse sensitive cases. For example, following the uprisings in Lhasa in March 2008 and in Urumqi in July 2009, the Chinese government expressly refused permission to lawyers from China proper to go to the Tibet and Xinjiang autonomous regions to represent detained Tibetans and Uyghurs. In addition, law firms were put on notice that participation by their lawyers in sensitive cases would affect the firms’ licensing inspection and approval in the coming year.

China’s state apparatus has escalated its policies and actions in monitoring the legal profession in recent years, to the point that law firms are now required to establish Party branches. A Xinhua report from 7 August 2009 that quotes a recent internal departmental speech by Justice Minister Wu Aiying is worth reproducing in full: Justice Minister Wu Aiying said on 6 August that further progress should be made in supervising and educating the ranks of the legal profession, providing practical and effective guidance to lawyers representing sensitive cases and group incidents, and educating and leading the profession generally in political expression, giving consideration to the broad picture, adhering to discipline and faithfully carrying out their professional mission as lawyers.

Speaking at a symposium of China’s judicial bureau heads, Wu Aiying called for rigorous organisational leadership of lawyers, attesting officers and other legal practitioners, and further developing their sphere of service. She noted that in the first half of this year alone, more than 270,000 legal aid cases had been handled, an increase of 22.6 percent over the same period last year.

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Between a Rock and a Hard Place: China’s Criminal Defence Lawyers 67

Wu Aiying said that China’s legal profession needed to maintain leadership by the Party and guidance under the scientific development concept, preserve the profession’s allegiance to socialism with Chinese characteristics, and guarantee the correct political direction of lawyers’ work. She said it was necessary to strengthen the profession’s admission qualifications, practical assessments and professional rewards and penalties, improve safeguards of lawyers’ professional rights, and further reform and improve the legal profession’s operational system.

She stressed the need to further strengthen the Party’s presence within the legal profession, and while unremittingly building the Party organisation within the profession, also raising the standards of Party-building within the profession, and working hard to implement full coverage of the Party’s work in the legal profession.

Up to the present, among China’s more than 14,000 law firms, 3,859 have established Party branches of their own, and another 8,075 have formed 2,692 joint Party branches with other firms. As for the 2,741 firms that do not yet have Party branches, political instructors have been deployed to each in order to advance implementation of the Party’s comprehensive organisational and operational coverage of the legal profession.8

The inability of lawyers to fulfil their professional potential Article 2 of the October 2007 revision of the PRC Law on Lawyers: “... Lawyers shall safeguard the legal rights and interests of their clients, safeguard correct implementation of law and safeguard social fairness and justice.”

Article 3: “... The legal practice of a lawyer shall be protected by law, and no organisation or individual shall infringe upon the legal rights and interests of a lawyer.”

In her speech, Wu Aiying did not devote a single word to how lawyers should protect the lawful rights and interests of their clients, how they should uphold TN: The Xinhua article can be access at http://big5.cctv.com/gate/big5/news.cctv.com/ china /20090807/100559.shtml. Regarding Wu Aiying’s views on Party oversight of the legal profession, see also Willy Lam, “The Politicisation of China’s Law-Enforcement and Judicial Apparatus,” China Perspectives, no. 2, 2009, p. 47, www.cefc.com.hk/download.php? fnom=cp2009-2_art4.pdf.

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68 A Sword and a Shield: China’s Human Rights Lawyers

the correct implementation of the law, how they should safeguard social fairness and justice, and how the legitimate rights and interests of lawyers should be protected against the infringement of others. Wu Aiying’s speech cast aside national law’s solemn demand for social responsibility by lawyers and the rights with which it endows lawyers, and instead demanded political correctness from lawyers on the ideological front, and the implementation of Party control of the legal profession on the operational front.

The current situation makes abundantly clear that China’s criminal defence lawyers face myriad difficulties in the actual process of representing cases in court, and these difficulties make it hard for lawyers to fully perform their function as defence counsel. According to available information, many lawyers regard criminal cases with actual dread, and many law firms state up front that they will not take on criminal cases.

If lawyers cannot effectively serve their professional purpose, social justice cannot extend its reach.

According to official estimates in China, an average of 100,000 collective social disturbances, large and small, occur in China every year. If China had rule of law and a mature judicial system that allowed lawyers to effectively defend people’s lawful rights and extend the reach of social justice, this would ultimately bring greater social stability, and there would be a significant decrease in the number of people feeling they had no recourse over injustice but to resort to public uprisings.

Not long ago, a certain provincial-level judge confided to me, “If China had rule of law, how would there be so many petitioners [coming to Beijing]?” This can be considered representative of the thinking of a large segment of China’s legal profession and society in general.

There can be no hope for China building rule of law without the participation and effective input of lawyers. But how can China’s lawyers extricate themselves from the difficulties presented by the current situation?

13 October 2009

Translated by Stacy Mosher

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Chapter Two

Legal Defence and Legal Representation

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The Supremacy of the Constitution, and Freedom of Religion – Joint Defence Plea in the Case of Wang Bo, Wang Xinzhong and Liu Shuqin Li Heping, Teng Biao, et. al.

We are the lawyers Li Heping and Li Xiongbing of the Beijing Globe (Gaobo Longhua) Law Firm, Zhang Lihui and Li Shunzhang of the Beijing Giant & Goal (Guogang) Law Firm, Teng Biao of the Beijing Huayi Law Firm, and Wu Hongwei of the Beijing Humane (Haiming) Law Firm. We were engaged by Ms. Han Lingrong to serve as defence counsel for Han Lingrong’s granddaughter, Wang Fu, her son-in-law, Wang Xinzhong, and her daughter, Liu Shuqin. In view of the fact that we share the same client, and that the three defendants are three members of the same family and all are believers in Falun Gong; and given that, moreover, they have been charged and sentenced for the same crime under the same set of facts; and that the defence counsel all acknowledge the extreme importance of religious freedom to politics and morality and in maintaining human freedom and happiness; and in view of defence counsels’ hope that consideration of the topic of religious freedom should be shifted from the dangerous and sensitive domains of religion and politics to a more circumspect and rational legal forum; and, moreover, in view of our conviction that the Republic’s bank of justice will not be bankrupted by honouring its cheque of Constitutional rights, we submit the following joint defence plea:

Part One: Reaffirming the universal principles involved in this case 1) We reaffirm the universal principle of freedom of religion involved in this case

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The Supremacy of the Constitution, and Freedom of Religion 71

Taken as a group, human beings are distinguished by society and culture; as individuals, human beings need psychological, emotional and mental solace and a spiritual life. Different living environments, historical opportunity, cultural nurturing and life experience have given rise to different forms of religious faith. We believe that religious freedom is in inalienable right of all human beings, and that it is an important factor in preserving human development and improvement of character. The right to religious beliefs is like the right to life: it is self-evident. The citizen’s right to religious freedom was first affirmed in law in the year 313 AD under the Edict of Toleration (Edict of Milan) jointly signed by the Roman rulers Constantine the Great and Licinius I. This edict stipulated for the first time that all religious beliefs enjoyed the same freedom without discrimination. However, humanity underwent extremely arduous struggle and grievous sacrifice until religious freedom was finally established as a universal rule. In 1948, the United Nations General Assembly stipulated in Article 18 of the Universal Declaration of Human Rights: Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

In November 1987, the UN General Assembly passed the “Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief,” which states in part: No one shall be subject to coercion which would impair his freedom to have a religion or belief of his choice. Freedom to manifest one’s religion or belief may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others.

Article 36 of the PRC Constitution also explicitly safeguards religious freedom.

Religious freedom undoubtedly encompasses three safeguards: First, the principle of religious freedom; that is, the object of a citizen’s beliefs, the religion itself, has the right to exist and develop. Second, the principle of freedom of conscience; that is, every citizen is free to choose whether or not to believe in any particular religion, and has the freedom to practice religion or engage in religious activity in whatever form. Third, the principle of separation of church and state; no group, party, organisation or individual, including any religion, can use violence or any other rights-infringing means to interfere with the right

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72 A Sword and a Shield: China’s Human Rights Lawyers

of a religion to survive and develop, nor can violence or other rights-infringing means be used to interfere with a citizen’s belief in any religion, his freedom to believe or not, or his freedom to practice religion in any form or to participate in religious activities. None of these three is indispensable or inseparable from the others. “Freedom of religious belief,” “religious freedom,” “freedom of conscience” – these three phrases are interchangeable in everyday parlance.

We believe that religious freedom means allowing each individual the freedom to choose among various forms of religious belief, whether a large, established religion or a relatively small and developing religion; whether an existing denomination or a newly-created belief system; whether atheistic, theistic, polytheistic or agnostic. Whether one believes in the “truth, virtue and tolerance” of Falun Gong, or in God or Allah, these beliefs, like those relating to Guan Gong or the Buddhist concept of Emptiness, fall under the religious freedom of which no one can be deprived. At the same time, a citizen’s practicing of all forms of religion and participation in all kinds of religious activities is safeguarded within religious freedom; if a citizen is deprived of the freedom to practice religion or participate in religious activities, religious freedom is nothing more than empty words on paper.

2) We reaffirm the principle of separation of church and state involved in this case In world history, in the benighted era before politics became civilised, a complex relationship existed between religion and state power. Some religions were established as orthodox, while others were disparaged as heresies or cults;1 some were established as state religions, while others suffered brutal suppression and bans; and some religions were simply merged into the ruling regime, with all other religions being exterminated. With the development of political civilisation, freedom of belief was ultimately established. The Virginia Statute of Religious Freedom drafted by Thomas Jefferson affirms the inalienable and God-given right to believe any religion without persecution, and asserts that allowing government power to extend into the religious domain will quickly lead to the forfeiture of all freedom of religion and conscience. Jefferson criticised the unification of church and state in history:

TN: The Chinese term xiejiao can be literally translated as “evil teaching.” It is typically translated as “cult,” but alternatives include “evil cult,” “heresy” or “heterodox/false teaching.”

Official PRC publications tend to prefer the term “evil cult,” no doubt for the sake of emphasising the undesirable nature of Falun Gong and other banned religious groups.

1

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The Supremacy of the Constitution, and Freedom of Religion 73

The impious presumption of legislators and rulers, civil as well as ecclesiastical, who, being themselves but fallible and uninspired men, have assumed dominion over the faith of others, setting up their own opinions and modes of thinking as the only true and infallible, and as such endeavouring to impose them on others, hath established and maintained false religions over the greatest part of the world and through all time.

Jefferson proposed and perfected the theory of separation of church and state, and applied it to practical politics. The separation of church and state means that all religions are equal before the law, and that none are predominant over or subservient to others. It can be divided theoretically into two parts: First is the intrusion of the church into political power; any religion is forbidden to seize secular power through establishment as a state religion. Second is the intrusion of secular power into religion; rulers are forbidden to use the church to interfere in the religious freedom of the people, or to use religious beliefs to increase the political legitimacy and stability of the regime. The posing of the principle of separation of church and state represented a liberation of thought in human history. Its ultimate implementation established a dividing wall between politics and religion. It means that religious belief is a matter of individual choice and free will, that there is no crime in propagating religion, and that no power has the right to interfere in a voluntary act of faith. In the final analysis, it means that people have the freedom to believe in a “cult,” or at the very least that they will not be deprived of their personal freedom because of this belief. It can be said that “cults” make up the majority in this world on the basis of the exclusivity of religious doctrines: every denomination and faith proclaims itself to be the one true faith, which by implication reduces the rest to “cults” or “heresies.” In the eyes of an atheist, all beliefs in any kind of god are cults.

In accordance with the principle of freedom of religion and conscience and the establishment of separation of church and state, no state or government that claims to rigorously enforce rule of law has the right to declare its preferred religion to be the state religion; at the same time, it loses the right to declare any religion it doesn’t like to be a cult or heresy. This is because once a government has the power to designate what is a proper religion as opposed to a cult, a monotheistic faith that controls a government can define polytheistic religion as heresy, while a government controlled by a believer in polytheistic religion can proclaim that monotheistic religion is heresy, and a government controlled by atheists can claim that any theistic belief is a cult, and freedom of belief has not even the barest safeguard. From this it can be seen that a law that fails to protect “cults” will also be unable to protect a “normal” religion.

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74 A Sword and a Shield: China’s Human Rights Lawyers

We believe that religious beliefs, including subjective, individual values as well as claims that cannot be tested or verified, all belong to a private realm of society into which government authority should not intrude; it is a spiritual affair in which the government has absolutely no business. Given that the government has no power to establish a belief system for an entire populace, it also has no right to judge or ban any religious belief. If China wants to become a respected and responsible member of the international community, it should abide by its own commitments to the international community, and put into practice the universal principle of separating church from state, maintaining neutrality toward every religion and denomination, neither elevating nor discriminating against any religion, and even less labelling any religion as a “cult” or meting out unjust treatment on the practitioners of any religion, but rather desisting from any crude violation of or interference with religious freedom. We believe that at present China to a very great degree deviates from the principle of separation of church and state in terms of its laws, regulations and judicial practices that impose sanctions on cults and a ban on Falun Gong.

3) We reaffirm the universal principles of “no crime in thought (or belief )” and “punishment only for criminal acts” involved in this case Anyone with the most rudimentary knowledge of criminal law is aware that criminal law only punishes criminal acts, and that thought (belief ) in itself does not constitute a crime; this is the iron-clad rule of criminal justice.2 Religious belief belongs to the stratum of thought, and it is unacceptable for a citizen to be treated unfairly because he or she persists in a particular religious belief. Neither a belief nor one’s identity as a believer constitutes a crime, and neither should be subject to criminal penalty.

Someone may ask whether the Japanese government didn’t ban the Aum Doomsday Cult. Our reply is that the Japanese authorities did not label Aum Shinrikyo as a cult, and this religion continues to exist as a lawful entity. In March 1993, the Tokyo underground system was subjected to a sarin gas attack that killed 12 people and injured 5,000 others to various degrees. The perpetrator was the religious leader Shoko Asahara, who was also involved in several other poisoning incidents claiming a total of 27 lives. The trial lasted seven years and ten months, with 257 court sessions, finally ending in February 2003 when the 12 defendants led by Asahara were sentenced to death… Even in the case of this

TN: Cf. Clarence S. Darrow, “There is no such crime as a crime of thought; there are only crimes of action.”

2

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The Supremacy of the Constitution, and Freedom of Religion 75

religion, which encouraged violence and carried out mass murder, in January 1997, Japan’s Supreme Court overruled a motion to ban Aum Shinrikyo, and the Public Security Examination Commission under Japan’s Ministry of Justice in 2000 issued an official report referring to Aum Shinrikyo as “an organisation that committed indiscriminate mass murder” that should be “placed under surveillance,” effectively acknowledging the continued lawful existence of Aum Shinrikyo.3 Does that mean the state pays no heed to this kind of religion? No. In December 1999, the Japanese Diet enacted two laws targeting Aum Shinrikyo: the “Act Regarding the Control of Organisations that Committed Indiscriminate Mass Murder” and the “Bankruptcy special measures law.”4 The former proposed to strengthen controls over groups that carried out “indiscriminate mass murder,” and the latter used economic means to penalise the group. Neither bill used language that banned a cult or prohibited followers from maintaining their beliefs. Was it possible that Japan was unaware of the danger of Aum Shinrikyo?

Did the legislative organ wish to preserve the roots of future chaos in Tokyo?

This was obviously not the case; rather, legislators were clearly aware of the limits on the power the authorities could wield. Punishment could only be imposed on a tangible crime, on a “crime of action.” As for the spiritual stratum of religious belief, the government and the law had no power over it. Very clearly, there are some beliefs that distort or deviate from basic social values, casting evil as good, rationalising murder and flouting human rights. But if they do not enter the realm of criminal sanctions through criminal offence or criminal intent; or, having committed a crime, if they have already been punished for that crime and are no longer engaged in it; under these circumstances, their acts are beyond the scope of criminal penalties, and the most that can be imposed is tighter surveillance. This is the standpoint of modern rule of law.

As for those religious creeds that depart from orthodoxy, they can only be constrained by public opinion and social morality, through criticism and discriminating thought, relying on the believer’s free will to voluntarily correct TN: For details of the Japanese government’s actions against Aum Shinrikyo, see the relevant page on the Japanese Ministry of Justice website: http://www.moj.go.jp/ENGLISH/ PSIA/psia02-04.html. It should be noted that the Ministry of Justice does refer to Aum Shinrikyo as a cult in the English translation of this material.

4 TN: The full name of the special bankruptcy law is “Special Law Concerning Recovery of Assets Constituting Bankrupt Estate of Designated Bankrupt Corporations.” For more on the passage of these two laws, see “Two anti-Aum laws promulgated,” Japan Times, 7 December 1999, accessible at http://www.cesnur.org/testi/aum5.htm, and Taro Takimoto, “Aum Shinrikyo at Present,” http://www.cnet-sc.ne.jp/canarium/t-comment33.htm.

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76 A Sword and a Shield: China’s Human Rights Lawyers

any error. Jefferson addressed the anxieties of some people about the possibility of unorthodox cults misleading people in his now famous quote: Truth is great and will prevail if left to herself. She is the proper and sufficient antagonist to error, and has nothing to fear from the conflict, unless, by human interposition, disarmed of her natural weapons, free argument and debate; errors ceasing to be dangerous when it is permitted freely to contradict them.5 Human beings are the principal components of society; they need to participate in society and history and freely accept information and express their own views. If an individual is isolated from outside information, and deprived of opportunities for expression and participation in social life, his life will lack dignity, and his humanity will not be able to fully develop. If freedom of belief is to be genuinely achieved, freedom of expression is essential; this is already elemental to the spirit of modern humanities.

Now Aum Shinrikyo has been reduced from more than 10,000 followers to just over 900, and its name has been changed to Aleph. Its current leader is Shoko Asahara’s third daughter, Rika Matsumoto.6 Japan’s legislative and judicial organs had no power to designate Aum Shinrikyo a cult, even though it advocated violence and took dozens of human lives. There is truly no basis for Falun Gong, with its calls for “truth, virtue and tolerance,” to be banned and suppressed as a cult.

Part Two: Understanding the principle of religious freedom in China From the standpoint of the Constitution, the right of Chinese citizens to religious freedom has already been granted fairly systematic legislative protection in the PRC’s body of law. Article 33 of the Constitution of the People’s Republic of China states: “The State respects and preserves human rights.” This is the Chinese government’s open declaration and acknowledgment of its responsibility in respect of human rights. Religious freedom is universally acknowledged as a basic human right, and the state’s responsibility to “respect and preserve” its citizens’ freedom of religious belief is irrefutable. Article 36 of the PRC Constitution stipulates:

TN: From “The Virginia Act For Establishing Religious Freedom.”

TN: For more on this group, see Wikipedia entry on Aum Shinrikyo, http://en.wikipedia. org/wiki/Aum_Shinrikyo.

5 6

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The Supremacy of the Constitution, and Freedom of Religion 77

Citizens of the People’s Republic of China enjoy freedom of religious belief.

No state organ, public organisation or individual may compel citizens to believe in, or not to believe in, any religion; nor may they discriminate against citizens who believe in, or do not believe in, any religion. The state protects normal religious activities.

This is the most effective legal protection provided to freedom of religious belief in China’s body of law, and it is basically the same as the standard applied to freedom of religious belief in the international community. If any other concrete measure stipulated in law, regulations or official policy attempts to threaten religious freedom, Article 36 of the Constitution becomes the most reliable sanctuary of religious freedom.

Article 36 of the PRC Constitution declares that freedom of religious belief encompasses at minimum the following: 1.

Every citizen enjoys complete freedom to believe or not believe this or that religion, including the right to believe in the devil or to worship any idol. As long as that citizen does not commit any act prohibited by law, law enforcement organs cannot restrict or interfere in any way with the free beliefs of that citizen. If that citizen does in fact take any action in violation of law, the law targets the citizen’s specific unlawful behaviour and not the substance of his religious beliefs.

2.

No state organ, public organisation or individual is empowered to carry out a legal appraisal of a citizen’s religious beliefs or to restrict or interfere with a citizen’s religious freedom based on that appraisal. This is the universally accepted conception of religious freedom in civilised society.

3.

Religious believers need not obtain permission from government organs in order to establish meeting places. Because religious belief is a purely spiritual and emotional activity of a society’s citizenry, the law can only restrain a person’s external behaviour and cannot spy on his or her internal spirituality or feelings. The law may at no time involve itself in an evaluation of a citizen’s religious beliefs, or exercise “the power of permission” of secular law in respect of his or her activities.

4.

A citizen has the right to disseminate his or her religious beliefs. The right of believers to engage in dissemination of their religious beliefs (whether on a full-time or part-time basis) can be exercised without obtaining “permission” from any government organisation, unless that believer’s

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78 A Sword and a Shield: China’s Human Rights Lawyers

actions violate legal provisions; and any legal provision that is violated must conform with the norms and spirit of the Constitution in order to be legally valid.

5.

Religious followers have the right to publish materials relating to their religious beliefs without being subject to examination, approval or prohibition. This is also the freedom of the press declared in Article 35 of the PRC Constitution.7

It is extremely regrettable that because law enforcement officers of state organs lack constitutional awareness, they fail to respect this stipulation of the Constitution while executing their duties, and citizens with religious beliefs routinely suffer violation of their rights by law enforcement organs. The handling of Falun Gong in particular seriously deviates from the principle of religious freedom laid down in the Constitution. There are widespread cases of injustice in which merely disseminating religious beliefs, printing religious materials, clarifying facts, carrying out public protests, hanging out banners and other such proselytising activities or expressions of ideas are construed and handled as violations of law. Taking this particular case as an example, the first defendant, Wang Bo, was sentenced to three years of Re-education Through Labour (RTL) for nothing more than helping someone else hang a banner in Tiananmen Square (see RTL Decision, p. 159 of the case file). Wang Bo’s mother, Liu Shuqin, was sentenced to three years of RTL for nothing more than distributing Falun Gong leaflets and crying out “Falun Dafa is good” (see RTL Decision, p. 160 of the case file). In this case, Wang Bo and her father and mother were sentenced to prison terms of five years, four years and four years, respectively, merely because the Court of First Instance determined that producing a CD-ROM regarding the unjust treatment described above, writing several essays, downloading some Falun Gong materials and printing some leaflets constituted “the crime of using an evil cult organisation to sabotage implementation of the law” (see Criminal Judgment of the People’s Court of Chang’an District, Shijiazhuang City).

Materials relating to this case demonstrate that it is extremely common for Falun Gong practitioners to be subjected to detention, coercive brainwashing, RTL or prison sentences for nothing more than having Falun Gong materials or CDROMs in their homes or stored in their computers. This is in serious conflict with the PRC Constitution’s principle of freedom of religious belief.

TN: PRC Constitution, Article 35: “Citizens of the People’s Republic of China enjoy freedom of speech, of the press, of assembly, of association, of procession and of demonstration.”

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The Supremacy of the Constitution, and Freedom of Religion 79

Part Three: Oppressive measures against Falun Gong believers violate the Constitution and have counterproductive consequences The three defendants are all Falun Gong believers. The relevant Chinese authorities have designated Falun Gong as an evil cult, which from another angle affirms that Falun Gong is essentially a religion (we will not at this point consider the government’s determination of this religion as orthodox or cultish in nature). We believe that religion is an ideology that encompasses a set of values and unverifiable claims. Once it is engendered, its existence is like that of a human life after birth; its existence is a fact that is not premised on the acknowledgement of law. Freedom of religion includes the existence of the Falun Gong religion, as well as the Falun Gong religion’s freedom to develop and a citizen’s freedom to believe in it. Given that constitutional nations that practice religious freedom have no power to determine what is a heretical cult, that term should not appear in the laws of China, which implements its own Constitution (and if the term does appear, it is unconstitutional and illegal).

In the international context, no country except mainland China has declared Falun Gong an evil cult or has banned its dissemination. People must inevitably wonder: is the principle of religious freedom in mainland China different from that of other constitutional nations? Whose standard is flawed, then? If the relevant Chinese authorities persist with their version, it will be difficult to find an appropriate rationalisation.

We believe that the oppressive policies against Falun Gong believers not only violate universal principles and the PRC Constitution, but also, from the pragmatic and historical angle, are limited in their effectiveness and even counterproductive. At the time when Falun Gong was originally allowed to exist freely in China, it was merely a localised religion of limited influence. But once oppressive measures were applied to Falun Gong in 1999, this not only failed to curb its dissemination, but actually led to its influence expanding worldwide, so that it became a global religion. From the historical standpoint, the results of suppressing a religion or ideology have typically been counterproductive: in the last 1,000 years, there has been untrammelled persecution of all manner of “heresies,” but not one of these “heretical” ideologies, philosophies or denominations has been extinguished as a result. Whether it is the whippings and immolations imposed by religious tribunals or the coercive brainwashing of fascist and totalitarian governments, none have been able to destroy the individual’s internal and spiritual choices. Political suppression can only turn a religious movement into an actual social movement, and intense repression

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80 A Sword and a Shield: China’s Human Rights Lawyers

creates not only a climate of political terror and humanitarian calamity, but also intense social and political movements.

Forcing Falun Gong believers to change or abandon their beliefs has wasted enormous amounts of taxpayer funds, and has resulted in the destruction of families and individual lives and a feeling of general insecurity in which people blanche at the mention of Falun Gong, and don’t dare to face the truth of the violence and suffering taking place all around us. The attempt to purge people of their inner beliefs has exceeded the government’s legal powers, as well as exceeding the capacities of any secular power. The defence counsel believe that China’s government should thoroughly reconsider its present policy, and in a timely manner make readjustments that reflect respect for universal principles, respect for the Constitution and actual implementation of the Constitution, so that the principle of religious freedom will soon become a reality in China.

Part Four: The basis for the Chinese government’s penalisation of Falun Gong believers is incompatible with the spirit of the Constitution and rule of law The Chinese government has openly published a series of documents relating to Falun Gong, including: • Article 300 of the Criminal Law8 • On 22 July 1999, the PRC Ministry of Civil Affairs designated the Falun Dafa Research Association and the Falun Gong organisation it operated as illegal organisations.

• On 22 July 1999, the Ministry of Public Security announced its decision to ban Falun Gong.

• On 26 October 1999, newspapers reported (Xinhua News Agency, 25 October 1999 online) that President Jiang Zemin formally announced TN: “Whoever organizes and utilizes superstitious sects, secret societies, and evil religious organizations or sabotages the implementation of the state’s laws and executive regulations by utilizing superstition is to be sentenced to not less than three years and not more than seven years of fixed-term imprisonment; when circumstances are particularly serious, to not less than seven years of fixed-term imprisonment.

Whoever organizes and utilizes superstitious sects, secret societies, and evil religious organizations or cheats others by utilizing superstition, thereby giving rise to the death of people is to be punished in accordance with the previous paragraph. Whoever organizes and utilizes superstitious sects, secret societies, and evil religious organizations or has illicit sexual relations with women, defraud money and property by utilizing superstition is to be convicted and punished in accordance with the regulations of articles 236, 266 of the law.”

8

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The Supremacy of the Constitution, and Freedom of Religion 81

• •

•

•

•

during an interview with France’s Le Figaro newspaper that “Falun Gong is an evil cult.”

On 27 October 1999, a special commentator published an article in People’s Daily entitled “Falun Gong is Nothing but an Evil Cult” (print edition, 28 October 1999, p. 1).

On 30 October 1999, the Standing Committee of the National People’s Congress passed the “Decision regarding a ban on heretical organisations, and preventing and punishing activities of heretical cults.”9 On 30 October 1999, the Supreme People’s Court and Supreme People’s Procuratorate jointly issued “Detailed judicial interpretations of laws regarding crimes committed by cults” (hereafter “Judicial Interpretations 1”).10 On 4 June 2001, the Supreme People’s Court and Supreme People’s Procuratorate jointly issued “Detailed judicial interpretations of laws regarding crimes committed by cults” (hereafter “Judicial Interpretations 2”).

On 9 April 2005, the Public Security Ministry issued the “Notice regarding certain questions relating to the designation and banning of heretical cult organisations.”

The afore-mentioned documents can be categorised as follows: Category 1: Not laws, and unable to serve as a basis for penalties; for example, President Jiang Zemin’s comments and the People’s Daily commentary.

Category 2: Unable to serve as a basis for handling because rendered invalid by violation of the Constitution. Article 5 of the PRC Constitution stipulates: “The state upholds the uniformity and dignity of the socialist legal system. No law or administrative or local rules and regulations shall contravene the constitution.”

Like Article 300 of the Criminal Law, the “Decision regarding a ban on heretical organisations, and preventing and punishing activities of heretical cults” passed by the NPC Standing Committee is null and void because it violates Article 36 of the Constitution by convicting and punishing so-called cults through establishment of the crime of “using a heretical cult to sabotage implementation of the law.”

TN: An English translation of the decision is posted on the PRC Embassy website, http:// www.china-embassy.org/eng/zt/ppflg/t36567.htm.

10 TN: For details, see http://www.chinaembassycanada.org/eng/xw/xwgb/t38871.htm.

9

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82 A Sword and a Shield: China’s Human Rights Lawyers

Category 3: Judicial interpretations that violate the Constitution and the Law on Legislation, and cannot serve as the basis for handling. Article 8 (5) of the Law on Legislation stipulates that laws must be enacted for any compulsory measures and penalties such as deprivation of citizens’ political rights and restrictions on personal freedom, and these laws must be enacted by the NPC or its Standing Committee. In the “Resolution regarding strengthening judicial interpretation work” of 1981, the NPC Standing Committee stipulated that judicial interpretations can only be directed at questions of specific points of law in judicial work. Clearly, an interpretation clarifies a particular law, and by no means can it depart from the text of the law to create law. At the same time, this explanation can also not intrude into the realm of legislative interpretation; according to Article 42 of the Law on Legislation, if the provisions of a law require further clear and concrete definition, or if after the law is enacted, new situations arise that require specifying the applicable basis, it is the NPC Standing Committee that must carry out the interpretation. The interpretation by the “two Supremes” regarding so-called heretical cults expands the scope of criminal law, involves the expropriation of a citizen’s political rights and restrictions on personal liberty, and implements a law or legal interpretation in the guise of judicial interpretation, a clear overstepping of authority. At the same time, the judicial interpretation of the “two Supremes” regarding Falun Gong as a “heretical cult organisation” also violates the provision on religious freedom in the PRC Constitution.

Category 4: Departmental regulations that violate the Constitution and cannot serve as a basis for handling. What power does the Ministry of Civil Affairs have to declare a religious organisation to be an illegal organisation? What empowers the Ministry of Public Security to implement measures prohibiting the dissemination of a religion? Even more inconceivable is that the Ministry of Public Security document goes so far as to declare 14 religions to be heretical cults: documents of the General Office of the CCP Central Committee and the General Office of the State Council specify seven heretical cult organisations: 1) the Shouters, 2) the Association of Disciples, 3) the All Sphere Church, 4) the Spirit-Spirit Sect, 5) the New Testament Church, 6) the Guanyin Famen, and 7) the Lord God Sect. Cult organisations identified by the Ministry of Public Security include: 1) the Established King, 2) the Unification Church, 3) Three Kinds of Servants Sect, 4) the Immortal Real Buddha Sect, 5) the Children of God, 6) the Dami Mission and 7) the World Elijah Evangelical Mission Sect.11 TN: An English translation of the Ministry of Public Security’s “Notice On Various Issues Regarding Identifying and Banning of Cultic Organisations,” accompanied by information on the “cults” identified by the Central Committee and State Council and Ministry of Public Security, is provided in http://www.monitorchina.org/document_details.php?id=78.

11

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The Supremacy of the Constitution, and Freedom of Religion 83

We are compelled to ask, on what basis was the Ministry of Public Security empowered to issue these two documents? What is the legal basis for identifying cults? What is the standard? What qualities are being identified? Were the targets thus identified given any formal notification? Have those so identified been given an opportunity to appeal? If they are allowed to appeal, what are the specific procedures? What organ accepts and hears the case? For this reason, the document issued by the Ministry of Civil Affairs and the two notices issued by the Ministry of Public Security constitute an overstepping of their authority, and at the same time violate Article 36 of the Constitution.

Here the following must also be pointed out: 1.

By comparing Article 300 of the Criminal Law (“organising and using a superstitious sect or heretical cult organisation...”), Article 1 of Judicial Interpretations 1 (“the heretical cult organisations referred to in Article 300 of the Criminal Law denotes illegal organisations in the guise of religion, qigong or some other name, that deify their ringleader, and use manufactured and disseminated superstitious heresy and other such methods to seduce and deceive others, develop and control followers and endanger society”) and Article 36 of the Constitution, it is easy to see that China’s legislative and judicial organs have carried out a “legal appraisal” of the content of religious beliefs. The term “cult” or “heresy” is an expression used within the religious sphere, and should not be applied to the legislative or judicial spheres and thereby become a “legal term.”

At the same time, there is mutual contradiction between the stipulations in China’s criminal law and judicial interpretations regarding “heretical cults” and the PRC Constitution’s provisions on religious freedom.

According to the above definition of heretical cult, it would be possible for any belief, including belief in Communism, to be similarly labelled and thus have difficulty escaping the net of justice.

2.

In the definition of “cult organisation” in Judicial Interpretation 1 by the Supreme People’s Court and Supreme People’s Procuratorate, the concepts of “in the guise of religion” and “superstitious heresy” are rather vague and abstract non-legal language. In particular, “superstitious heresy” is a term that cannot be explicitly defined through legal means.

This kind of non-legal term applied to the process of law enforcement and administration of justice inevitably places freedom of religion at the mercy of law enforcement officers, allowing them free rein to weave it into all other arbitrary violations of rights.

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84 A Sword and a Shield: China’s Human Rights Lawyers

3.

Legislative organs (including those that administer legislation) can only enact general legislation that targets all localities and all principals.

They cannot legislate in a way that targets specific subjects or specific localities. In addition, restrictions and deprivations involving a citizen’s constitutional right to religious freedom are extremely significant and universal, and it is clearly inappropriate for such relatively lowly organs as the general offices of the Party Central Committee and State Council and the Ministry of Public Security to make them.

From all of the above it is clear that the punitive actions carried out at present against Falun Gong believers have no constitutional legal basis, and they should be suspended forthwith.

Part Five: The punitive actions imposed on Falun Gong believers are excessive, unconstitutional, and in some cases constitute a crime If state operatives execute their official duties within statutorily defined parameters, these actions are legal. If they exceed their legal powers, or if their actions have no basis in law, this is considered overstepping their authority, and it becomes an individual act unrelated to their official position. Article 251 of China’s Criminal Law states: “ Workers of state organs who illegally deprive citizens’ right to religious beliefs or who encroach on minority nationalities’ customs or habits, if the case is serious, are to be sentenced to two years or fewer in prison or put under criminal detention.”12 According to the materials in the case file, punitive action taken against Falun Gong believers has included: surveillance, tracking, wiretapping, home searches, detention, fines, conversion, Re-education Through Labour, prison sentences and other such restrictions or deprivations of personal freedom imposed on Falun Gong believers. To take the above measures against a law-abiding religious believer is undeniably a violation of law, and in the most serious cases there should be criminal responsibility. At the same time, since “conversion” has no basis in law, this kind of restriction or deprivation of a citizen’s religious freedom is illegal and is a criminal act. The RTL system itself violates the Constitution and the Law on Legislation and has no legitimacy; to restrict a citizen’s liberty on the basis of an unconstitutional and invalid law or regulation is a patently illegal act.

TN: The defence statement incorrectly states that the punishment is one year in prison.

12

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The Supremacy of the Constitution, and Freedom of Religion 85

The actual process of investigating and trying Falun Gong cases routinely contains many flaws; for example, restricting the involvement of lawyers in Falun Gong cases, failure to honour the defendant’s right to legal counsel, trials that are not open to the public, the inappropriate interference of 610 offices13 throughout China in judicial organs (the present case required a memo between the provincial Prevention Office and the municipal Public Security Bureau), detention beyond legally proscribed limits, extortion of confessions by torture, and so on. The defence counsel believe that the campaign-style, excessively harsh punishments meted out to Falun Gong believers violate the most basic procedural justice, and some of these acts constitute violations of law and even criminal conduct. The extortion of confessions by torture from Falun Gong believers clearly violates the relevant provisions in the Criminal Procedure Law and the principle of administering the country by law initiated by the central government, as well as violating the judicial concepts for building a harmonious society, and running counter to international human rights norms and historical trends. Defence counsel once again submit for the attention of the court that the three defendants in this case all had confessions extorted by torture (the Court of First Instance took no account of this), and were subjected to manifestly unjust treatment because they refused to abandon their beliefs.

Part Six: Conclusion For as long as human beings have inhabited this planet, they have never ceased their thirst for knowledge, their pursuit of a better life, their quest for justice and their search for meaning. Different groups of people have taken different roads on these questions, and the answers they have arrived at have been similarly various.

Religions that put forward a comprehensive explanation and interpretation of universal truth not only become the foundation for an individual’s view of life and worldview; they are also the means by which humanity addresses the eternal questions that everyone must eventually face. The differences between religions, exacerbated by the exclusivity that some religions demand of their believers, result in disputes and bloody conflicts very easily developing between religions and government, between different religions, and between branches of individual religions. But adopting high-handed policies against all types of “heresies” cannot lead to their elimination; rather, many religions that were initially regarded as “heterodox” have eventually become established as TN: The “610 Office” is a public security unit established at the time of the official crackdown on Falun Gong on 10 June 1999 (hence the name). See Human Rights Watch, “Dangerous Meditation: China’s Campaign Against Falun Gong,” 7 February 2002, http:// www.hrw.org/en/reports/2002/02/07/ dangerous-meditation.

13

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86 A Sword and a Shield: China’s Human Rights Lawyers

orthodox faiths. For example, the Puritans were originally censured as heretics by the British government and suffered persecution, but after they established themselves in the United States, they became the mainstream denominations that exist today.

Experience shows that no one has a monopoly on truth, and handling religious questions requires abiding by the principles universally applied to religious issues: the principles of freedom of religion, freedom of conscience and separation of church and state – these are the laws that must be observed by all rule-of-law countries that practice religious freedom, and these principles are also affirmed in China’s own Constitution.

To be sure, China has a long way to go in putting civil rights into actual practice.

This will require the government to demonstrate sincerity in implementing the Constitution, as well as the large-scale effort of China’s citizens. The struggle of each and every citizen to protect his or her own civil rights is in effect a struggle to protect the rights and dignity of China as a whole.

In this case, the Wang Bo family are average Chinese citizens who have done no more than exercise their constitutional rights through actions that are protected by law and which do not constitute crimes in any sense. The so-called facts of offence that the Court of First Instance judgment asserted against the defendants Wang Bo, Wang Xinzhong and Liu Shuqin are as follows: 1.

The video document that the defendant Wang Bo recorded herself, “My experience of being deceived, brainwashed and used by the evil Party,” and which she uploaded onto the Minghui.org website,14 and which was edited into the Minghui feature program, “Cruelty and deception behind ‘Focus Interview,’” which was transmitted through the Minghui website;15

2.

The defendants Wang Bo, Wang Xinzhong and Liu Shuqin downloaded from the Internet 360 Falun Gong leaflets and 80 books and created 26

TN: A Falun Gong website, the English version of which is Clearwisdom.net.

TN: “Focus Interview” was an anti-Falun Gong program produced by China’s state-run CCTV television station claiming that Wang Bo and her parents had been convinced to give up their beliefs. For further details of the case, see Samantha Lev, “Chinese Lawyers’ Motion Defends Falun Gong in Court for First Time,” The Human Rights Law Foundation, 25 October 2007, posted on http://www.david-kilgour.com/2007/Oct_25_2007_01.htm and elsewhere.

14 15

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The Supremacy of the Constitution, and Freedom of Religion 87

CD-ROMs; Liu Shuqin distributed one Falun Gong leaflet to the home of Gao Zangshuang; 3.

The defendants Wang Xinzhong and Liu Shuqin took photographs of a banner reading “Quickly withdraw from the doomed Chinese Communist Party.”

The defence counsel hold that even if the above actions are verified, it is ridiculous to define them as criminal acts. Wang Bo’s recording and uploading onto the Internet of her own life experience falls under the free expression to which she is entitled as a citizen, and does not endanger society in any way. As a believer in Falun Gong, she has a right to discuss her Falun Gong beliefs. As the subject of the “Focus Interview” program, Wang Bo felt the program was untruthful, and that she had a responsibility to clarify the facts. It is extremely unfair to penalise her for her attempts to clarify the facts.

Today’s society has entered the Internet era, and anyone who accesses the Internet, as long as he does not violate the rights of others, can upload, download, store and exchange information, articles and photographs that interest him. As Falun Gong believers, Wang Bo’s family have these same rights.

Taking photographs is an even more normal activity of everyday life, and poses no danger to society. To treat this as a crime is in itself a violation of law and reason. These judgments, which assert that a citizen’s normal religious activities or trivial activities of everyday life are crimes, are absurd and ridiculous.

(For reasons of length, the separate views of each defence counsel on this portion are submitted as separate defence pleadings).

This case looks like a normal criminal case, but in fact it is an unusual constitutional case, a major case involving a citizen’s freedom of conscience.

If we disregard the Constitution and only consider questions on the basis of laws and regulations, then actions allowed by the Constitution will be punished through laws and regulations that violate the Constitution, resulting in an unjust situation in which “It is no crime for the government to commit arson, but a citizen is punished for lighting a lamp.” We ask the appeal judges to respect citizens’ constitutional rights, and to correctly face their historical responsibility by daring to face up to the truth and their own consciences and delivering a fair judgment by acquitting the defendants in this case.

We reaffirm that Wang Bo, Wang Xinzhong and Liu Shuqin have committed no crime by exercising their constitutional rights, by persisting in their beliefs,

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88 A Sword and a Shield: China’s Human Rights Lawyers

by disseminating their faith, by publicising the hardship they have suffered or by clarifying the facts. We believe that every Chinese citizen who cares about his own constitutional rights hopes for a fair judgment in this case.

Respectfully submitted to: Shijiazhuang Intermediate People’s Court Defence Counsel: Li Heping and Li Xiongbing of the Beijing Globe Law Firm Zhang Lihui and Li Shunzhang of the Beijing Giant & Goal Law Firm Teng Biao of the Beijing Huayi Law Firm Wu Hongwei of the Beijing Humane Law Firm April 27, 2007 Translated by Stacy Mosher from the Chinese text posted at http://www. fabao365.com/home.php?action=zanling&item=43497&show=26323.

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Defence Plea on Behalf of Hu Jia on the Charge of Incitement to Subvert State Power Li Fangping

Respected Judges on the Judicial Panel: First of all, as defence counsel for Mr. Hu Jia, we maintain a difference of opinion with the prosecution regarding the authenticity of the six essays and the transcripts and audio recordings of two interviews at the centre of the charges. Before making our formal defence plea, we would like to state our main defence points briefly and concisely to the court. Our defence opinion consists of three parts: 1.

Due to the extreme importance of freedom of speech, defence counsel feel compelled to expound on the value of freedom of speech and state our own position to the court.

2.

Defence counsel believe that a just handling of this case is premised on respect for the safeguards for freedom of speech provided in international law and domestic law, and clarifying the fundamental boundary line between freedom of speech and endangering state security, thereby guarding against routine erosion and restriction of citizens’ freedom of speech through arbitrary interpretation of so-called endangerment of state security.

3.

Following a careful analysis of law and fact, defence counsel believe that Mr. Hu Jia’s personal situation and objective behaviour preclude reaching the conclusion that the content of his essays and of the transcripts and recordings of the interviews with him constitute incitement to subvert state power.

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90 A Sword and a Shield: China’s Human Rights Lawyers

We are very willing to enter into deliberations, discussion and debate with the prosecution regarding the above defence opinions in order to further clarify the facts for the Judicial Panel and to more precisely apply the law.

I. In view of the extreme importance of freedom of speech, defence counsel feel compelled to expound on the value of freedom of speech and state our own position to the court.

Article 35 of China’s Constitution stipulates that citizens of the People’s Republic of China enjoy six great freedoms, of which freedom of speech is listed first.1 No wonder a legal adage states, “Freedom of speech is the mother of all freedoms.”2 If we glance through the pages of recent history, we see that our country experienced a tragic era in which the serious neglect of freedom of speech resulted in husbands and wives informing on each other. Considering the extreme importance of freedom of speech, we need to ponder where its value lies.

The Baidu Encyclopaedia provides this annotation: “A classic argument for protecting freedom of speech as a fundamental right is that it is essential for the discovery of truth.”3 We know well that truth is relative and constantly developing, and that no individual, political party or organisation can exhaust and monopolise truth.

This is true for natural science, for social science and for views of our country’s past, present and future. It is only through the debating, collision, exchange and blending of different viewpoints that we can draw near to the truth, and freedom of speech proves itself to be especially indispensable and desirable in this process of expressing the truth. Freedom of speech is the most cost-effective road to correctness and truth; its greatest enemy is the monopolisation of truth and intolerance of debate. A former leader of the Communist Party of the Soviet Union (CPSU), Yegor Kuzmich Ligachev, came to recognise that the ruling party’s “monopoly on truth” was one of the systemic abuses that led to the dissolution of the Soviet Union. In 2001, on the 10th anniversary of the 19 TN: PRC Constitution, Article 35: “Citizens of the People’s Republic of China enjoy freedom of speech, of the press, of assembly, of association, of procession and of demonstration.”

2 TN: This quotation is commonly cited but without attribution. This primacy is sometimes also attributed to other freedoms, however, such as freedom of conscience/religion.

3 TN: http://baike.baidu.com/view/84184.htm. The English version of this quote appears in several online encyclopedias, such as http://www.economicexpert.com/a/ Freedom:of:expression.htm.

1

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Defence Plea on Behalf of Hu Jia 91

August Incident,4 the Chairman of the Union of Communist Parties-CPSU, Gennady Andreevich Zyuganov, also reflected on the reasons for the party’s failure, and concluded that the real reason the CPSU fell from power was its three monopolies, one of which was the ideological system that monopolised truth.5 Captive thought and suppression of speech will only increase the barrier between the people and the government, and their mutual dread and suspicion.

When the channels for people to peacefully express their wishes are closed off, social discontent gradually accumulates, and any relaxation of the government’s controls may be followed by destructive social unrest. If citizens enjoy freedom of speech, however, their feelings of dissatisfaction have a normal outlet, easing social contradictions. It also helps citizens develop a capacity for moderate, rational, comprehensive and multilateral observations, reflection and judgment.

US Federal Supreme Court Justice Louis D. Brandeis once said “… that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies.”6 In a thorough examination of Mr. Hu Jia’s seven articles and interview transcripts at issue in the prosecution’s charges, we note that some of the expressed content is indeed relatively strident, in a way that is incompatible with the prevailing tone proposed by the government at present. But defence counsel believe that TN: On 19 August 1991, a coup attempt against USSR President Mikhail Gorbachev was defeated by a popular uprising in Moscow led by Russian President Boris Yeltsin. In the aftermath of the coup attempt, Gorbachev and Yeltsin declared an end to Communist Party rule. Republics of the former Soviet Union declared independence one by one, and the USSR ceased to exist in December that year.

5 TN: Zyuganov evidently said something to this effect on more than one occasion. Cf. Ken Livingstone, “It wasn’t free enterprise that failed Russia, but the leaders of the West,” The Independent, 2 September 1998: “In 1996 I concluded that Zyuganov would have made a much more democratic leader than Yeltsin. I did so because he called for a reduction of arbitrary power concentrated in the presidency and the mayors of the big cities, and because of his contempt for the intellectual stagnation of the former soviet system. ‘The party claimed a monopoly on everything: property, ideas, truth,’ he said.” http://www.independent. co.uk/arts-entertainment/it-wasnt-free-enterprise-that-failed-russia-but-the-leaders-of-thewest-1195407.html.

6 TN: Brandeis was stating the beliefs of America’s founding fathers, in Whitney v. California 74 U.S. 357 (1927), http://usinfo.org/docs/democracy/44.htm.

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the core meaning of freedom of speech is not to ensure freedom of speech that follows the prevailing tone, echoes what others say, dances to someone else’s tune or goes along with whatever someone else suggests, because that kind of speech already enjoys too much freedom, and what actually needs protecting is speech that deviates from mainstream social values or that even criticises the government. Today is the day that State Council Premier Wen Jiabao answers questions from journalists at the National People’s Congress and Chinese People’s Political Consultative Conference sessions.7 It may be recalled that during the 2007 sessions, in answering a reporter’s question he said, “We need to create a situation in which the people are able to oversee and criticize the government.”8 In fact, our government really should create such a situation, one in which more respect is paid to freedom of speech, and that can better embrace diverse viewpoints. Only under these conditions will our people dare to straightforwardly monitor and criticise the government. The ultimate result will be the dissolving of existing or future suspicion and grudges, and the achievement of genuine harmony and mutual trust.

II. Defence counsel believe that a just handling of this case is premised on respect for the safeguards for freedom of speech provided in international law and domestic law, and clarifying the fundamental boundary line between freedom of speech and endangering state security, thereby guarding against routine erosion and restriction of citizens’ freedom of speech through arbitrary interpretation of so-called endangerment of state security.

As a founding member state of the United Nations, and as a member of the first session of the Human Rights Council, China has all along reaffirmed and fulfilled the aims and principles of the UN Charter and the Universal Declaration of Human Rights, and in 1998 signed the “International Covenant on Civil and Political Rights.”

Article 19 of the Universal Declaration of Human Rights passed by the UN General Council on December 10, 1948, stipulates: TN: Cf. “Premier Wen Jiabao meets press,” Xinhua News Agency, 18 March 2008, http:// news.xinhuanet.com/english/2008-03/18/content_7812091.htm.

8 TN: “Socialist democracy means enabling people to oversee, criticize government: Chinese Premier,” People’s Daily Online, 16 March 2007, http://english.people.com.cn/200703/16/ eng20070316 _358327.html.

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Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Likewise, Article 19 of the International Convention on Civil and Political rights stipulates: 1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary i. For respect of the rights or reputations of others; ii. For the protection of national security or of public order (ordre public), or of public health or morals.

That is to say, with regard to the present case, in international law, safeguarding national security is the only premise under which the Chinese government can limit the freedom of speech to which a citizen is entitled.

Before signing the International Convention on Civil and Political Rights, the National People’s Congress (NPC) in 1997 amended the 1979 Criminal Law, converting the original crimes of counter-revolution in Chapter 1 into crimes against state security; the original provision in Article 102 relating to counter-revolutionary propaganda and incitement was amended to the current provision in Article 105 (2) relating to incitement to subvert state power.9

TN: “Whoever incites subversion of the political power of the state and the overthrow of the socialist system through spreading rumours, slander or other means is to be sentenced to not more than five years of fixed-term imprisonment, criminal detention, control or deprivation of political rights; the ringleaders and those whose crimes are grave are to be sentenced to not less than five years of fixed-term imprisonment.”

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94 A Sword and a Shield: China’s Human Rights Lawyers

But even though China carried out the amendment of the Criminal Law and the conversion of terms, the relevant UN bodies still proposed further amendments in this area. After a visit to China in 1997, the Working Group on Arbitrary Detention wrote a report in which it proposed three items, the last of which related to the definition of “crimes endangering state security.”

The committee felt that the definition was vague and provided opportunities for arbitrariness. The report also pointed out, “The revised Criminal Law, in the context of the offences endangering national security, makes no attempt to establish standards to determine the quality of acts that might or could harm national security. That the Law establish such a standard is crucial, as that alone would make the Law reasonable, fair and just. Clearly, the national security law may be misused and, as long as it is part of the statute, it provides a rationale for restricting fundamental human rights and basic freedoms.”10 Returning to domestic law, Article 35 of China’s Constitution stipulates that citizens enjoy freedom of speech, while the provision against incitement to subvert state power in Article 105 (2) [of the Criminal Law] limits citizens’ speech that endangers state security. Defence counsel observe that since neither the Standing Committee of the NPC nor the Supreme People’s Court has carried out any legislative or judicial interpretation of the crime of incitement to subvert state power, almost every legal application, as in the present case, sets off enormous controversy. The formulation of the crime of incitement to subvert state power consists of merely 30 words, and the public security and procuratorial organs are accustomed to enormous latitude in interpretation, so that even discussion of peaceful, rational, non-violent reform can be regarded as a danger to state security. Defence counsel believe that given the conflict between Article 105 (2) of the Criminal Law and Article 35 of the Constitution, if there is no further analysis or definition, the courts must be all the more careful in declaring someone guilty of incitement to subvert state power, and as far as possible narrow the interpretation to prevent imperilling citizens’ right to free speech. We have attempted to locate the boundary between free speech and endangering state security, but regrettably the domestic judicial and legal circles continue to avoid research and discussion on this point.

This uncertainty was previously raised during a session of the Law on Lawyers Amendment Subgroup on the afternoon of 26 June 2007. Ye Rutang, a member TN: “Report submitted by the Working Group on Arbitrary Detention: Addendum + Visit to the People’s Republic of China,” E/CN.4/1998/44/Add.2, 22 December 1997, http://www.unhchr.ch/ Huridocda/Huridoca.nsf/0/2a5b902348361462c125661700513f8 c?Opendocument.

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Defence Plea on Behalf of Hu Jia 95

of the NPC Standing Committee, raised doubts over the provision in law that grants lawyers legal immunity over statements they make in court, with the exception of speech that endangers state security: “How are we to interpret what speech ‘endangers state security’? Leaking state secrets can be considered speech that endangers state security, but apart from leaking state secrets, what else can endanger state security through speech?”

With the same questions in mind, defence counsel turn for answers to the “Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression” presented to the Commission on Human Rights on 23 April 2003 (adopted without a vote). Its introduction includes this passage: Mindful of the need to ensure that unjustified invocation of national security, including counter-terrorism, to restrict the right to freedom of expression and information does not take place, Recalling the Johannesburg Principles on National Security, Freedom of Expression and Access to Information adopted by a group of experts meeting in South Africa on 1 October 1995...11 The report in particular calls upon states to: …refrain from imposing restrictions which are not consistent with the provisions of article 19, paragraph 3, of the International Covenant on Civil and Political Rights, including on: (a) Discussion of government policies and political debate, reporting on human rights, government activities and corruption in government, engaging in peaceful demonstrations or political activities, including for peace and democracy, or expression of opinion and dissent, religion or belief.12 The report submitted every year by the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, along with the Johannesburg Principles on National Security, Freedom of Expression and Access to Information, which has gained widespread approval in the international community, in fact delineate a distinct boundary of principle

TN: Commission on Human Rights, Report to the Economic and Social Council on the Fifty-Ninth Session of the Commission, Draft Report, E/CN.4/2003/L.11/Add.4, 24 April 2003, p. 51, http://daccessdds.un.org/doc/UNDOC/LTD/G03/139/36/PDF/G0313936. pdf ?OpenElement.

12 TN: Ibid., p. 54.

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for us. In particular, Principle 5 of the Johannesburg Principles stipulates: “No one may be subjected to any sort of restraint, disadvantage or sanction because of his or her opinions or beliefs.” Article 6 stipulates: Subject to Principles 15 and 16, expression may be punished as a threat to national security only if a government can demonstrate that: (a) the expression is intended to incite imminent violence; (b) it is likely to incite such violence; and (c) there is a direct and immediate connection between the expression and the likelihood or occurrence of such violence.

Article 7 stipulates: Subject to Principles 15 and 16, the peaceful exercise of the right to freedom of expression shall not be considered a threat to national security or subjected to any restrictions or penalties. Expression which shall not constitute a threat to national security includes, but is not limited to, expression that: (i) advocates non-violent change of government policy or the government itself; (ii) constitutes criticism of, or insult to, the nation, the state or its symbols, the government, its agencies, or public officials, or a foreign nation, state or its symbols, government, agencies or public officials.

Summarising the main thrust of the Johannesburg Principles, we can know without the shadow of a doubt the proper boundary between free speech and endangering state security, which is that only language with a clear and immediate possibility of triggering violence can be regarded as constituting a threat to state security.

III. Following a careful analysis of law and fact, defence counsel believe that Mr. Hu Jia’s personal situation and objective behaviour preclude reaching the conclusion that the content of his essays and of the transcripts and recordings of the interviews with him constitute incitement to subvert state power.

First, we note a difference in formulations in the prosecution opinion and the indictment. In the prosecution opinion, the investigation ascertained that, beginning in June 2001, Hu Jia posted the following essays on Bowenshe and other overseas websites: “While catching the democracy train, East Asia’s sleeping lion suddenly awakens: A letter to my good friend Wang Lixiong” (27 June 2001), “Mr. Lin Mu died around 14:00 today” (15 October 2006), “Guo

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Feixiong and Jiang Wei and the ‘Xinyang political earthquake’” (28 January 2007), “One country doesn’t need two systems” (2 July 2007), “Before the 17th Party Congress, China’s politics and law system creates dread far and wide” (13 September 2007), “As 17th Party Congress and National Day draw near, police carry out a series of human rights infringements” (4 October 2007); and that he also accepted interviews with overseas media subsequently published as “Hu Jia talks about the situation before and after Lawyer Gao was abducted” (24 August 2006), and “Launch a peaceful challenge to the autocratic system” (late 2006); and that these actions allegedly incited subversion of state power.

But the indictment by the prosecutorial organs added the word “etc.” after the six specific essays, and we believe that is not sufficiently specific. According to Mr. Hu Jia’s recollection, up until 6 October 2007, he published a total of 189 essays. Since the investigating organs did not use them as evidence to lodge their indictment, the focus of our argument in court today is limited to the aforementioned six essays and two interviews.

Second, we believe that “While catching the democracy train, East Asia’s sleeping lion suddenly awakens: A letter to my good friend Wang Lixiong” is a private exchange of views between two friends. How it came to be published openly on the Internet has not yet been ascertained. In addition, that essay was composed on 27 June 2001, which falls outside the statute of limitations, and by law should not be handled in this indictment. 1) In the record of his interrogation on 8 February 2008, Hu Jia made the following reply: “My recollection is that this was in the form of a letter, so the title was not added by me, and I don’t have a clear impression of how it came to be posted on the Internet.” “I can’t clearly recall specifically how I posted it or where I chose to post it.” “I don’t remember the email address of the receiving party.” If this was the first time Hu Jia had written this kind of political commentary, is it really conceivable that he would have no impression of where he first published it? 2) Nearly six years passed from 27 June 2001, when the article was posted, until 16 May 2007, when the Beijing Municipal Public Security Bureau’s Public Information Network Security Monitoring Unit’s Inspection and Control Centre discovered it on the Internet. It was also published more than five years before another article in the indictment, “Hu Jia talks about the situation before and after Lawyer Gao was abducted,” which was published on 24 August 2006. According to Article 87 of China’s Criminal Law: “Crimes are not to be prosecuted where the following periods have elapsed: (1) in cases where the maximum legally-prescribed punishment is fixed-term imprisonment of less than five years, where five years have elapsed.” The essay from 2001, even supposing it constitutes a crime, cannot be considered one bringing a heavy penalty, and the statutory punishment would be under five years. During the

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98 A Sword and a Shield: China’s Human Rights Lawyers

succeeding five-year period, Hu Jia was not engaged in a so-called criminal act of a continuous or continuing nature, so by law cannot be prosecuted.13 Third, the content of the essays in the prosecution’s charge cannot prove that Hu Jia objectively committed acts that incited others to subvert state power or overthrow the socialist system. The indictment accuses Hu Jia of the following incitement: “Let us launch a challenge to this kind of autocratic system”; “I really feel ashamed that my country is ruled by this kind of organisation. I estimate that it cannot last more than 100 years; it will either disintegrate or quietly decay. The Communist Party should die a natural death as the Last Dynasty.” Hu Jia through the aforementioned incitement vainly attempted to achieve the goal of subverting China’s state power and the socialist system.

A carefully reading of Hu Jia’s eight essays, even in the extracts painstakingly selected by the prosecutorial organs, discovers not a single word that refers to the national government or the socialist system, not to mention inciting all of us to overthrow the national regime of the People’s Republic of China. What is meant by subversion? The Baidu Encyclopaedia provides this definition: “Using a certain method to launch a coup d’etat or armed insurrection to overthrow the current regime.”14 What is meant by overthrow? The Baidu Encyclopaedia defines it thus: “To use armed force to defeat the original regime or social system.”15 Mr. Mao Zedong has a famous quote: “Political power grows out of the barrel of a gun.”16 Mr. Hu Jia has never advocated violence; rather, in his eight essays he repeatedly refers to peace. Since he does not incite violence, how will the regime be subverted, and how will the system be overthrown?

In his essays, Mr. Hu Jia only speaks of the “system,” and there is no doubt that the system at any given time is not equivalent to the national regime or the socialist system. The system has economic and political elements, and reform or change to the system does not inevitably lead to the national regime being subverted or overthrown. Mr. Hu Jia’s belief that the present political system is autocratic, regardless of whether this viewpoint is correct or not, is his personal opinion. His negative appraisal of the state political system is an exercising of his right as a citizen to criticise the government. As early as the 1980s, China launched reforms to the political system, but because these reforms stalled,

TN: Article 89 of the PRC Criminal Law: “The period for prosecution is counted as commencing on the date of the crime; if the criminal act is of a continuous or continuing nature, it is counted as commencing on the date the criminal act is completed.”

14 TN: http://baike.baidu.com/view/639344.htm.

15 TN: http://baike.baidu.com/view/554195.htm.

16 TN: Mao Zedong, “Problems of War and Strategy.”

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Defence Plea on Behalf of Hu Jia 99

social contradictions have become increasingly evident. The ruling party has acknowledged this delay in reform to the political system, and during the 16th Party Congress recommended “Positively and safely pushing forward with reform to the political system,”17 while the 17th Party Congress also proposed “Deepening reform to the political system.”18 Fourth, we remind the court to take note of Mr. Hu Jia’s personal circumstances between 24 August 2006 and 4 October 2007, at the time that he published the series of seven trenchant articles (including transcripts of interviews) attacking the state political system, in particular the state politics and law organs. During this period and for some time before it, he was personally in a situation not in conformance with rule of law, including long-term loss of freedom or freedom of movement, and even short-term disappearance. From his personal loss of confidence in China’s rule of law situation, he progressed to a completely negative assessment of China’s human rights situation, which ultimately escalated into an attack on the organisational level. Defence counsel have all along regarded Mr. Hu Jia as an idealist; he fervently loves his country and hopes for the progress of Chinese society, putting his beliefs into practice through his efforts on environmentalism, AIDS and the safeguarding of human rights.

Finally, defence counsel would like to address three [four] views regarding points of order in the present case: 1.

During the investigation stage of this case, when we as defence counsel submitted an application to meet with our client, we were informed that the case involved state secrets, and it was only one month and eight days later that we were given permission to meet with Mr. Hu Jia; yet the case file materials at trial reflected no identification of a state secrets issue.

Article 37 of the Rules on the Process of Handling Criminal Cases by Public Security Departments stipulates: “In cases involving state secrets, public security organs should notify the criminal suspect that engaging a lawyer requires approval from the public security organ. ‘Cases involving state secrets’ refers to cases the details or nature of which involve state secrets. Criminal cases that require protecting the confidentiality of

TN: Cf. “Jia Qinglin: Jixu jiji wentuodi tuijin zhengzhi tizhi gaige,” Xinhua Net, 10 July 2005, http://www.gov.cn/ldhd/2005-07/10/content_13384.htm.

18 TN: “Zhonggong shiqida wei shenhua zhengzhi tizhi gaige buju,” Xinhua Net, 11 November 2007, http://news.xinhuanet.com/newscenter/2007-11/11/content_7049305. htm.

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100 A Sword and a Shield: China’s Human Rights Lawyers

relevant materials and opinions on handling at the investigation stage cannot be treated as cases involving state secrets.”19 It can be seen that the initial refusal of the investigative organs to permit a meeting with lawyers on the basis of the case involving secrets was a procedural violation.

2.

During the investigation stage of this case, the relevant departments restricted the personal freedom of Mr. Hu Jia’s wife, Zeng Jinyan, without the proper legal formalities, and thereby unlawfully prevented her from free communication and exchange with legal counsel.

3.

According the Mr. Hu Jia’s statement in the case file and what he said during meetings with counsel, his interrogations during the preliminary hearing stage lasted from six to 14 hours, including one early on in which he was interrogated until after 3:00 a.m. We discovered that due to the distance between the preliminary hearing and the detention centre control mechanism, after an interrogation as long as 14 hours, he had to rise again at 6:00 a.m. after just over two hours’ sleep, and was not allowed to rest again during the day. We believe it is inhumane not to guarantee an adult eight hours of uninterrupted sleep, and that this very much resembles a trial by exhaustion.

4.

During the investigation and indictment stage, defence counsel obtained the prosecution opinion on 7 March 2008, the same day that the defendant appeared in court. This effectively deprived the defendant of his right to defence counsel.

Having said all of the above, we do not deny that the Hu Jia case represents overall progress in comparison with other cases of endangering state security.

Defence counsel reaffirm our support of and cooperation with all personnel of state organs in the lawful performance of their duties throughout the proceedings, and in mutually safeguarding of the dignity of China’s law.

In summation, Mr. Hu Jia has been punished for his words, and his words do not endanger state power. Defence counsel respectfully request the court to take note of the extreme vagueness of the concept of endangering state security, which has already eroded the objective reality of citizens’ right to free speech. We ardently hope that the Judicial Panel will, on the basis of a carefully

TN: The rules are posted in Chinese at http://www.dffy.com/faguixiazai/ssf/200903/ 20090305225814-2.htm.

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weighing of the boundaries between the two, arrive at a fair judgment and grant Hu Jia his freedom.

Defence counsel: Beijing Ruifeng Law Office Li Fangping, lawyer 19 March 2008

Translated by Stacy Mosher from the original Chinese version posted at http://www.chrlcg-hk.org/?p=330.

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Chapter Three

The Crackdown on Lawyers

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Background to the Beijing Lawyers Association Election Controversy On 26 August 2008, a few months after an amended version of China’s Law on Lawyers went into effect on 1 June, 35 public interest lawyers published an online petition calling for democratic elections within the Beijing Lawyers Association (BLA). This petition brought to a head the long-simmering friction between public interest lawyers and the Chinese authorities, and precipitated a crackdown threatening dozens of these lawyers with the loss of their professional credentials.

The BLA, although ostensibly a professional organisation with more than 15,000 members, is controlled by the Chinese government in the same way as organisations such as the All China Federation of Women and the All China Federation of Trade Unions. In this case, the Ministry of Justice controls China’s lawyers through the various judicial bureaus, which exert their influence through lawyers’ associations at the national, provincial and local level.

The lawyers’ petition asserted that the BLA (and by implication, China’s other lawyers’ associations) failed to represent and defend the interests of its members because it was staffed primarily by government officials and dominated by wealthy lawyers promoting their personal interests. In particular, the lawyers noted, the BLA failed to defend the rights of individual lawyers when their professional duties brought them into conflict with the authorities. The BLA also imposed hefty membership fees on individual lawyers and law firms, while failing to disclose its finances or otherwise demonstrating accountability to its membership.

Under the existing system of governance, the BLA’s board of directors elected lawyers’ representatives to the BLA congress, and the next congress then elected the BLA’s new president, directors and supervisors. The petition called for elections in each municipal district for individual lawyers to vote for representatives to the BLA congress, and also for the BLA’s president, vice-president and chairman of the board of supervisors. This, the petitioning

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Background to the Beijing Lawyers Association Election Controversy 105

lawyers averred, would make the BLA truly accountable to its membership and more inclined to fulfil its obligation to safeguard lawyers’ rights.

The lawyers also pointed out that neither the BLA’s charter nor its election procedures had ever been approved by a two-thirds vote by all member lawyers as required by law, and called for this to be addressed in the upcoming election, along with approval of the annual membership fee by a two-thirds majority of all lawyers. Noting that lawyers were at the forefront of democratic reform in China, the petitioning group commented that it was scandalous for lawyers’ own professional associations to lack a democratic process.

The BLA responded on 5 September 2008 with a “Stern Statement” asserting its legitimacy and representativeness, and warning that the ongoing campaign for direct elections was being carried out through unlawful means. The BLA asserted that the campaign was an effort “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.”

The petitioning group replied two days later with a statement defending the lawfulness of their campaign, urging all lawyers to exercise their legal rights and demand to participate in the upcoming election, and calling for a public apology from the BLA for its “slanderous” statement.

Retribution against individual lawyers involved in the campaign soon followed, with district judicial bureaus telling law firms that the petition had an “international background” and “political goals.” Many of the lawyers who signed the petition were summoned by the Beijing Justice Bureau and warned to watch their steps.

Several firms responded by firing or requesting the resignation of lawyers who were participating in the campaign. The lawyers, however, established their own website, “Lawyers’ Salon” (http://www.lvshishalong.com/), to publicise their stand and update the public on action taken against participants, and by 13 October the number of signatories to the petition had increased to 82.

In December, the BLA convened a meeting of lawyers’ representatives and judicial bureau officials, who adopted its draft charter. In the meantime, lawyers who had signed the petition prepared to offer themselves as candidates in the upcoming BLA election.

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106 A Sword and a Shield: China’s Human Rights Lawyers

In January 2009, the BLA began soliciting lawyers’ feedback on draft “Election Procedures for the Eighth Beijing Lawyers’ Representative Congress,” which it also posted on its website. In an obvious concession to the petitioning lawyers, the draft provided for direct election of lawyers’ representatives instead of their selection by the BLA’s board of directors. The BLA board adopted the new measures in February. While urging all lawyers to take advantage of their newly-won suffrage, the petitioning lawyers attacked restrictions in the new measures that required candidates to be endorsed by law firms or organisations, as well as the lack of a forum for voters to question candidates and of provisions for secret balloting and post-election review.

Five members of the petitioning group, Cheng Hai, Zhang Lihui, Tang Jitian, Yang Huiwen and Tong Chaoping, managed to obtain formal endorsements for candidature in the Chaoyang District, but the BLA omitted their names from the lists during the election at the end of February. The candidates subsequently received a substantial number of write-in votes, but not enough to be elected as representatives. In a subsequent run-off vote in early March, no write-ins were allowed, effectively eliminating all five of the petitioner candidates.

At the same time, a few enthusiastic public interest lawyers were among the 229 representatives who were ultimately elected, and the petitioning lawyers received sympathetic coverage in some of China’s more independent media, such as The Beijing News, Southern Weekend, Southern Exposure, China Youth Daily, Orient Today, Economic Observer, 21st Century Business Herald, China Reform and Bai Xing.

Following the election, the petitioning lawyers posted an article reviewing their effort, at the end of which they made a point of thanking the “individuals promoting social progress from within the Lawyers Association and the Judicial Bureau.” The article noted, “Without their hard effort, we would be hard pressed to see any progress at all. Although throughout this process we levelled many criticisms at the Judicial Bureau and the Lawyers Association, we were still gratified to see some progress: the Beijing Lawyers Association for the first time issued ballots to all of its members, the first time a ballot was seen by many lawyers who had practiced law in Beijing for more than 10 years; the Lawyers Association’s draft charter was posted twice on the association’s website to solicit lawyers’ views; following the publication of the ‘Stern Statement,’ the attitude of the Lawyers Association leaders toward public interest lawyers improved, and they responded to some of the issues raised in our appeal; in some electoral districts, some lawyers publicly issued electoral statements, and some public interest lawyers were elected as representatives. These marks of progress are the result of our collective effort.”

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Background to the Beijing Lawyers Association Election Controversy 107

Shortly after the election, however, on 17 March 2009, the Judicial Bureau began imposing a crackdown on law firms employing the petitioning lawyers.

The Yitong Law Firm, affiliated with a number of the petitioners, was shut down for six months on the pretext that it was allowing lawyer Li Subin to practice without a license. Li Subin, who had joined Yitong as an administrator, had been unable to renew his license after winning a lawsuit against a Henan judicial bureau over excessive registration fees.

In April 2009, as the Chinese authorities prepared for the 20th anniversary of the 1989 Tiananmen protests and crackdown, the BLA issued a notice requiring all of Beijing’s practicing lawyers to submit to an annual assessment by the end of the month. In the following weeks, lawyers who had pushed for the direct elections, and others known for their handling of sensitive cases, found that they were unable to meet the criteria to “pass” the annual license inspection and were therefore barred from practicing their profession. Translations of their letters of protest follow. Some of the suspended lawyers eventually passed the assessment and had their licences reinstated. Others, however, have been unable to resume practicing law.

Compiled by Stacy Mosher

Source material: Jerome A. Cohen, “The Struggle for Autonomy of Beijing’s Public Interest Lawyers,” China Rights Forum, No. 1, 2009, http://hrichina.org/public/PDFs/ CRF.1.2009/CRF-2009-1_Cohen.pdf Human Rights in China’s China Rights Forum devoted all of its issue No. 1, 2009, to rule of law in China, with several articles relating to the Lawyers Association election. For the online edition, gotohttp://www.hrichina.org/public/contents/ article?revision_id=160820&item_id=160819 Henry Sanderson, “China Lawyers Call for More Open Bar Association,” Associated Press, 11 September 2008, http://www.usatoday.com/news/world/200809-11-360255464_x.htm Human Rights in China, “Rights Defense Lawyer Li Subin Sues Beijing and Henan Judicial Authorities,” 12 June 2009, http://www.hrichina.org/public/ contents/169872

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“Beijing lüxie xuanju xiangmu zongjie” (A summary of the Beijing Lawyers Association election), Open Constitution Initiative, 29 March 2009, http://www. gongmeng.cn/sub_r.php?zyj_id=2327

English translations of the lawyers’ petition and the official response: Human Rights in China (tr.), “Keep Pace with the Course of History, Implement Lawyers Association Direct Election: An Appeal to All Beijing Lawyers, the Beijing Municipal Bureau of Justice, and the Beijing Municipal Lawyers Association,” October 31, 2008, http://www.hrichina.org/public/contents/ press?revision_id=149319&item_id=149292 Human Rights in China (tr.), “Stern Statement from the Beijing Lawyers Association Regarding the Appeal by a Small Number of Lawyers for So-called “Beijing Lawyers Association Direct Election,” 31 October 2008, http://www. hrichina.org/public/contents/press?revision_id=149319&item_id=149292 China Free Press (tr.), “Accord With the Tide of History, Directly Elect Beijing Bar Association Directors,” 9 September 2008, http://www.chinafreepress.org/ publish/case/Accord_With_the_Tide_of_History_Directly_Elect_Beijing_Bar_ Association_Directors.shtml China Free Press (tr.), “The Beijing Bar Association’s Response to a Small Number of Lawyers and their So-Called Call for Direct Elections to the Beijing Bar Association,” 10 September 2008, http://www.chinafreepress.org/publish/case/ The_Beijing_Bar_Association_s_Response_to_a_Small_Number_of_Lawyers_and_ Their_So-Called_Call_For_Direct_Elections_to_the_Beijing_Bar_Association. shtml China Free Press (tr.), “Our Response to the Beijing Bar Association’s Serious Statement,” 11 September 2008, http://www.chinafreepress.org/publish/case/Our_ Response_to_the_Beijing_Bar_Association_s_Serious_Statement.shtml

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Large-scale Crackdown on the Eve of June 4th Prevents Nearly 20 Lawyers from Practicing their Profession A Statement by Mainland Lawyers

As the 20th anniversary of the June 4th Incident approaches, an inflexible and backward political system has given rise to social conflict of unprecedented intensity, with repeated infringement of human rights. At the same time that the Chinese government has applied severe pressure on petitioning citizens, independent intellectuals, rights defenders and religious practitioners, it has in 2009 begun suppressing rights defence lawyers to an unprecedented degree, causing a severe setback to the building of rule of law, and giving rise to apprehension that has spread through all sectors of society.

Background: Rights defence lawyers increasingly active in an expanding human rights domain Following the June 4th Incident in 1989, China’s political reforms ground to a halt, and elite corruption and social inequity steadily intensified, giving rise to a constant stream of group incidents. This environment engendered the gradual emergence of a group of rights defence lawyers dedicated to maintaining rule of law, defending human rights, safeguarding citizens’ legitimate rights and upholding fairness and justice. These lawyers became active in civil rights cases and public interest litigation involving freedom of expression, freedom of religion, freedom of assembly, freedom of residence and racial equality, defending the rights of human rights workers, journalists, ethnic minorities, parents of earthquake victims, and displaced householders, and tackling the issues of eminent domain, property rights, environmental protection, food safety, and disease prevention and treatment, as well as equal rights, the right to know, the right to participate and the right to monitor the government.

The emergence and growth of this group of rights defence lawyers has been

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110 A Sword and a Shield: China’s Human Rights Lawyers

described as one of the significant achievements of China’s efforts to establish rule of law over the past 30 years, as well as being regarded as an indicator of China’s progress on the road to rule of law. However, these same lawyers, in their dedication to rule of law and defence of rights according to law, are regarded as a threat by the Chinese politics and law organs and special interest groups. As the 20th anniversary of June 4th draws near, the authorities have been intensifying their suppression of rights defence lawyers to an unprecedented degree.

The Current Situation: Many rights defence lawyers subjected to administrative strictures and violent infringement of rights 4 February 2009: Well-known rights defence lawyer Gao Zhisheng, serving a suspended sentence, went missing after being detained by police in his Shaanxi home.

28 February 2009: Heilongjiang-based lawyer Wei Liangyue, who has served as defence counsel in many cases involving religious practitioners, was detained without reason by Harbin police.

17 March 2009: the Beijing Yitong Law Office was penalised by being closed down for six months for “reorganisation,” and well-known rights defence lawyers Li Jingsong and Li Subin have been unable to practice as lawyers or agents.

10 April 2009: Guangxi-based lawyer Yang Zaixin, while representing peasants who had been deprived of their land, was savagely beaten by several governmentaffiliated thugs involved in the unlawful requisitioning of the land.

12 April 2009: Beijing-based lawyer Cheng Hai, while practicing his profession in Chengdu, Sichuan Province, was unlawfully obstructed and brutally beaten by government workers from the Jinyang residential district office and stability preservation office.

16 April 2009: Guangxi lawyer Liu Yao, while representing the rights of peasants deprived of their land, was sentenced to one year in prison, suspended for two years.

13 May 2009: Beijing lawyers Zhang Kai and Li Chunfu, while practicing their profession in the Jiangjin District of Chongqing, were handcuffed and beaten by more than 20 police officers who unlawfully burst into the home of their client. Zhang Kai was shackled inside a cage at the police station cell.

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Police unlawfully and forcibly searched the lawyers’ files and took away crucial evidence.1 These examples show how widespread the Chinese politics and law system’s suppression of rights defence lawyers has become as the anniversary of June 4th approaches. Even more serious is the politics and law system’s use of so-called “annual assessment and registration” to strip even more rights defence lawyers of their right to practice.

Crisis: Many rights defence lawyers face immediate suspension or revocation of their licences In 2008, China’s judicial authorities used the pretext of “annual inspection and registration” to temporarily suspend the practices of rights defence lawyers such as Teng Biao and Jiang Tianyong through measures such as cancelling their licences or delaying their registration. Now 2009 has seen the launch of a new round of suppression of rights defence lawyers, using the pretext of “annual assessment and registration” to revoke or suspend the licenses of many rights defence lawyers such as Jiang Tianyong, Li Heping, Li Xiongbing, Li Chunfu, Wang Yajun, Cheng Hai, Tang Jitian, Yang Huiwen, Xie Yanyi, Li Dunyong, Wen Haibo, Liu Wei, Zhang Lihui, Peng Jian, Li Jinglin, Lan Zhixue, Zhang Kai, Liu Xiaoyuan, Wei Liangyue (Heilongjiang) and Yang Zaixin (Guangxi).

The law firms for which they work, including Beijing’s Globe (Gaobo Longhua), Anhui, Gongxin, Shunhe, Giant & Goal, Jiurui, Jiafa, Yijia and Qijian law firms, the Jiaodian law firm in Heilongjiang Province and the Baijuming law firm in Guangxi Province, have also received instructions or warnings from judicial and administrative organs or lawyers associations. Some law firms have been required to immediately dismiss rights defence lawyers from their employ, while others have been required to notify such lawyers of their “failure to pass the annual assessment,” in conformance with the politics and law organs’ suppression of rights defence lawyers through the cancellation or suspension of their licences and other qualifications.

The system of annual inspection and registration of lawyers is a professional management system with distinctly Chinese characteristics under which lawfully licensed lawyers must by May of each year submit a registration fee ranging from 500 yuan to 5,000 yuan or more and obtain an “annual inspection

TN: Full details of this incident are provided on the CHRLCG website: http://www. chrlcg-hk.org/?p=419.

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112 A Sword and a Shield: China’s Human Rights Lawyers

and registration” stamp on their law license from a judicial administrative organ at provincial level or above in order to continue practicing their profession. This system has become the most effective method for the politics and law system and government-controlled lawyers associations to amass wealth and suppress rights defence lawyers. Shaanxi lawyer Zhang Jiankang, Guangdong lawyers Tang Jingling and Deng Yan, and Shandong lawyer Li Jianqiang (also known as Liu Lu) have all had their licenses suspended or revoked during the annual registration process, merely because of their participation in rights defence cases. Because of conflicts between this system and the Administrative Licence Law, Law on Administrative Penalty and Law on Lawyers, as well as criticism from many domestic lawyers that the coercive collection of fees is tantamount to extortion, on 18 July 2008, China’s Ministry of Justice promulgated Order No. 112, which formally abolished the system of annual inspection and registration.2 However, after this system was abolished, many provincial judicial administrative organs, taking the lead from the Beijing Municipal Justice Bureau, in early 2009 introduced their own “annual assessment and registration” systems, which are simply a continuation of the old “annual inspection and registration” in another guise.

Beijing’s “annual assessment and registration” system for lawyers requires all of the city’s lawyers to submit to an annual assessment by the Beijing Lawyers Association and to pay a registration fee of 2,500 yuan for membership in the association, after which only those lawyers who pass the assessment and obtain the association’s stamp to that effect on their licenses are allowed to continue to practice. Those who fail the assessment are required to hand over their licenses to the Beijing Municipal Judicial Bureau, cancel their license and cease practicing law.

The deadline for lawyers to implement the “annual assessment and registration” is 31 May. The lawyers listed above and many others will after 31 May be unable to continue to practice law because of having their law licenses revoked for “failure to pass the annual assessment” or having their registration as a member of the Lawyers Association delayed. The Beijing Lawyers Association, which

TN: MOJ Order No. 112, “Measures for the Administration of the Practice of Lawyers,” has been posted on a number of PRC legal Web sites, such as Nanjiang Fazhi Wang, http:// www.njsf.gov.cn/?do= article_content&type=4&nid=411. Paid access to an English translation is available at http://www.chinalawandpractice.com/Article/2006495/Measuresfor-the-Administration-of-the-Practice-of-Lawyers.html.

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should be tasked with protecting the rights of lawyers, has once again become an accessory to the judicial administrative organs’ suppression of rights defence lawyers, and what they previously carried out in secret has now come out into the open.

Translated by Stacy Mosher from the original Chinese version posted on the CHRLCG Web site on 26 May 2009, http://www.chrlcg-hk.org/?p=420.

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Letter of Complaint Regarding the Beijing Lawyers Association’s Violation of Law and the Association’s Articles of Association, and Its Encroachment on Lawyers’ Right to Practice To the Beijing Lawyers Association: According to Article 6 (8) of the “Articles of Association of the All China Lawyers Association”1 and Article 7 (6) of the “Articles of Association of the Beijing Lawyers Association,”2 members of lawyers associations have the right to raise criticisms of the associations. As members of both the All China Lawyers Association and the Beijing Lawyers Association, we hereby raise a serious criticism of the Beijing Lawyers Association.

On 13 April 2009, the Beijing Lawyers Association issued its “Notice Regarding the Launch of Legal Professional Assessment Work for 2009,”3 which requires all of Beijing’s practicing lawyers to submit to an annual assessment by the Beijing Lawyers Association between 20 April and 31 May. Those who pass the assessment will be allowed to register as members of the Association; those

TN: Posted on the Ministry of Justice Web site, http://www.legalinfo.gov.cn/joa/ zhishudanwei/ lvshixiehui.htm.

2 TN: T h e revised Articles of Association passed in December 2008 are posted at http:// www.51fagu.com/_fagu_news/information/Articles/2008-12-26/2008122618213.html.

The Articles of Association do not appear to be posted on the Lawyers Association’s own Web site.

3 TN: The Notice is posted on a number of PRC Web sites, including that of the Beijing Municipal Justice Bureau: http://www.bzsfxz.gov.cn/.

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The Beijing Lawyers Asssociation’s Violation of Law 115

who do not pass will not be allowed to register as members, will have to hand over their law licences for revocation, and must suspend their practice of law.

As of the assessment cut-off date of 31 May, at least a dozen practicing lawyers, including ourselves, have not obtained membership registration, and face cancellation of our licenses and loss of our right to practice law.

We feel that this year’s legal professional assessment has deviated from the Lawyers Association’s work direction, and exceeds the Association’s authorised responsibilities. The form and objectives of the professional assessment work seriously violate the relevant stipulations in the Law on Lawyers, the Administrative Licence Law and the Articles of Association of the All China Lawyers Association. In practical terms, the assessment also impairs and illegally deprives lawyers of their due right to practice. We request that it be immediately rectified.

1.

According to the Administrative Licence Law and the Law on Lawyers, a law license is an administrative licence that a citizen can lawfully acquire for the practice of law. Its validity is protected by law, and apart from implementation under the circumstances and by the judicial administrative organs stipulated in law and regulation, no other unit or organisation is empowered to issue a law licence or to restrict a lawyer’s right to practice.

The Beijing Lawyers Association’s use of “failing the assessment” as a reason to suspend or terminate lawyers’ ability to practice their profession, and to revoke or cancel law licences, is a serious violation of the basic principles of the Administrative Licence Law and the Law on Lawyers.

The Beijing Lawyers Association is a self-governing professional organisation, not a judicial administrative organ. Its unauthorised disciplinary handling of administrative licences lawfully acquired by citizens exceeds the association’s statutory powers.

2.

According to the Law on Lawyers and the Articles of Association of the All-China Lawyers Association, lawyers who have obtained law licences are automatically members of the All China Lawyers Association and their local lawyers association. The Beijing Lawyers Association’s use of “failing the assessment” as a reason to deny a practicing lawyer registration as a member, and its unauthorised termination of the membership of practicing lawyers, violates mandatory provisions in law and the statutory

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116 A Sword and a Shield: China’s Human Rights Lawyers

duties of the association, and also violates the association’s Articles of Association.

3.

According to Article 9 of the Articles of Association of the All China Lawyers Association, members of lawyers associations are not required to renew their registration unless they have moved to a new firm or locality to practice law. The Beijing Lawyers Association’s requirement that its members renew their registration every year clearly violates the Articles of Association of the All China Lawyers Association.

4.

Professional assessment is a management system that the judicial administrative organs and lawyers associations implement according to their respective authorised responsibilities through supervision, inspection, statistics, analysis and reporting on the legal services performed by law offices and practicing lawyers. Professional assessment is not in and of itself an independent form of administrative punishment or professional discipline, and it cannot serve as a pretext for punishing or restricting the lawful rights of lawyers and law offices.

The Administrative Licence Law stipulates that the administrative licence-related supervision and inspection carried out by administrative organs or relevant organisations cannot obstruct or affect the ability of the licence-holder to carry out business or production, nor can it be used as a means of gaining financial benefit. The Beijing Lawyers Association violates these legal provisions through the huge membership fees it will collect, and the strictures it will impose through its professional assessment.

5.

The current situation makes it clear that the Beijing Lawyers Association’s grounds for “failing the assessment” are actually “participating in or promoting direct election for the Beijing Lawyers Association,” “handling a class action case,” “handling a politically sensitive case,” “defence opinion did not undergo discussion or approval process,” etc.

The lawyers who have “failed the assessment” are law-abiding rights defence legal representatives who have taken it upon themselves to act as defenders of human rights and lawful civil rights and guardians of fairness and justice. The cases they have represented are wide-ranging, involving freedom of expression, religion, association and residence; racial equality; defending the rights of human rights workers, journalists, ethnic minorities and parents of earthquake victims; cases involving forced

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The Beijing Lawyers Asssociation’s Violation of Law 117

relocation, eminent domain, property rights, environmental protection, food safety and disease prevention and treatment; as well as protecting civil rights such as the right to know, the right to participate and the right to oversee the government; and the area of public interest law.

Governing in accordance with law and respecting and safeguarding human rights form the basic roadmap for our country. The revision of laws and regulations inconsistent with the provisions of the Law on Lawyers, and the safeguarding of lawyers’ professional rights, has been explicitly written into the “Human Rights Action Plan.”4 The Beijing Lawyers Association’s violation of laws and regulations, and its exceeding of its authority by restricting and violating lawyers’ legitimate right to practice their profession, are inconsistent with the association’s aims, and are counterproductive to objectives such as defending the rights of its members and promoting the building of China’s rule of law and the progress of its social culture.

These are our criticisms, in hope that correction will result.

Beijing lawyers Li Xiongbing, Jiang Tianyong, Tang Jitian, Yang Huiwen, Zhang Lihui, Li Chunfu, Wen Haibo, Xie Yanyi, Zhang Kai 1 June 2009

Translated by Stacy Mosher from the original Chinese version posted on the China Human Rights Lawyers Concern Group Online Forum, http://www.chrlcg-hk.org/phpbb//viewtopic.php?t=4999.

An official English translation of the Human Rights Action Plan is available at http://news. xinhuanet. com/english/2009-04/13/content_11177126.htm.

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Joint Press Release by Hong Kong and Taiwan Legal Professionals In Support of China’s Rights Defence Lawyers This is the first time that Taiwan’s legal professionals have voiced their support for China’s ill-treated rights defence lawyers. It is also the first time that they have joined the China Human Rights Lawyers Concern Group, most of the members of which are solicitors and barristers working in Hong Kong, in issuing a statement and in jointly expressing concern over human rights abuses committed by the Chinese government.

President Ma Ying-Jeou has many times in the past commemorated the June 4th Democracy Movement, including through published essays. Since taking office he has devoted more effort to promoting cross-strait relations. Apart from catering to economic exchanges, however, it is important not to neglect cross-strait exchanges related to democracy, human rights and rule of law. In particular, President Ma Ying-Jeou, as a legal professional educated in the Western system, should be even more well-grounded than the typical leader on the topics of democracy, human rights and rule of law. Recently, in response to an appeal from President Ma, Taiwan’s Legislative Yuan ratified two important human rights treaties, the United Nations International Convention on Civil and Political Rights and the International Convention on Economic and Cultural Rights. For that reason it is our deepest hope that in addition to crossstrait economic exchanges, the Ma administration will also bring its influence to bear on the implementation of democracy, human rights and rule of law, so that the Chinese government, which has also ratified the afore-mentioned treaties, will make a genuine effort to raise its human rights standards to internationally accepted levels.

President Ma Ying-jeou previously served as Taiwan’s Justice Minister, a position of authority over Taiwan’s lawyers, and should be well aware of a lawyer’s duty to serve as a guardian of human rights. Safeguarding the right of lawyers to

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Joint Press Release by Hong Kong and Taiwan Legal Professionals 119

practice their profession is the most important aspect of a country under rule of law. The Chinese government, however, is using a virtually inconceivable level of administrative power in the form of an annual inspection or assessment to deprive many rights defence lawyers of their ability to continue practicing their profession and preserve their law practices. In addition, the government has carried out large-scale violations of personal freedom and other improper actions against rights defence lawyers. Pressure tactics such as these that violate the spirit of rule of law, and which are seldom seen elsewhere in the world, greatly discredit the Chinese government’s slogans claiming reform and opening to the outside world.

Since the Ma administration is leading the way on expanding cross-strait exchanges, it must at the same time take responsibility for raising demands for reform with the Chinese government, and for demanding that the government immediately halt its wrongful persecution of China’s rights defence lawyers. In that way, cross-strait exchanges will develop in a mutually beneficial direction, rather than resulting in mutual degradation.

This joint press conference is attended on the Hong Kong side by Legislative Councillor Emily Lau, who is vice-chairman of the China Human Rights Lawyers Concern Group, an organisation that has for some time been concerned with China’s rule of law and the situation of rights defence lawyers.

On the Taiwan side, the press conference is attended by Wellington Koo Lihsiung, chairman of the Taiwan Bar Association, and Liu Chih-peng, chairman of the Taipei Bar Association. This is a most important beginning for legal professionals and intellectuals from Hong Kong and Taiwan to express their concern over China’s rule of law and human rights prior to June 4th, and we welcome the news media’s enthusiastic coverage of the event.

Joint organisers: Taiwan Bar Association, China Human Rights Lawyers Concern

Group, Taipei Bar Association, Judicial Reform Foundation Date and time: 2 June 2009, 2:00 p.m.

Location: National Taiwan University Alumni Club, 3rd Floor, Room C

(2-1 Chi-nan Rd. Section 1, Taipei) Contact: Lin Feng-jeng, Executive Director, Judicial Reform Foundation

(02-2523-1178)

Hsueh Ching-feng, Chairman of the Human Rights Protectio

Committee, Taipei Bar Association (0938-030-040)

Translated by Stacy Mosher from the original Chinese version posted on the CHRLCG website, http://www.chrlcg-hk.org/?p=425.

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Chapter Four

Lawyers and the Rights Defence Movement

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What Is Rights Defence?

Teng Biao

The term “rights defence” has become very popular, but it actually hasn’t been in use very long. The year 2003 saw a series of relatively influential public law cases, including those involving Sun Zhigang, Li Siyi, Sun Dawu1 and several independent candidates in People’s Congress elections. The platform of the Internet and traditional media made these cases a breakthrough for public intellectuals, especially legal scholars and lawyers. In late 2003 and early 2004, some writers referred to 2003 as the “inaugural year of civil rights action.”2 In fact, the original intention was to refer to a “civil rights movement,” but the media considered this too sensitive, so it was changed to “civil rights action.”

“Civil rights” eventually evolved into “rights defence,” while “action” was transformed into “movement.” The rights defence movement quickly became a hot topic in the media (particularly the foreign media) and among China watchers analysing mainland China’s social and political development, resulting in an impressive accumulation of articles on the subject.

What form does rights defence take? Mainly it is the intervention of lawyers or rights defenders in a specific case, for example the cases of Sun Zhigang and Chen Guangcheng, the Sanlu Milk Powder case, or cases involving freedom of expression, religious freedom or property rights. The goal is to use the legal

TN: Sun Zhigang was a young graphics designer from Hubei who was detained in Guangzhou for failing to carry the required residency permit. He died while being held at a “custody and repatriation” centre. See Sophie Beach, “The Rise of Rights?” posted on China Digital Times, 27 May 2005, http://chinadigitaltimes.net/2005/05 rise-of-rights/. Li Siyi was a three-year-old girl who starved to death at home after her mother was detained and police refused to arrange for her welfare. See Ren Bumei (tr. Paul Frank), “After Li Siyi,” China Rights Forum, No. 4, 2003, http://www.hrichina.org/public/PDFs/CRF.4.2003/a3_Lisiyi4.

2003.pdf. Sun Dawu was a rural Hebei businessman who was handed a three-year suspended sentence for lending money to farmers who were unable to secure loans from corrupt credit cooperatives. See Hamish McDonald, “Farm-grown rebel fights corruption,” The Age, 10 January 2004, http://www.theage.com.au/articles/2004/01/09/ 1073437468912. html?from= storyrhs.

2 TN: See, for example, Xinwen Zhoukan, “Xin minqiang xingdong nian,” 18 December 2003, http://news.sina. com.cn/c/2003-12-18/15172408126.html.

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What Is Rights Defence? 123

process to demonstrate the power of the law and protect the rights of the party concerned, to call on the government to abide by the law, to expose the unlawful actions of officials, to use the court of public opinion to monitor law enforcement departments when necessary, or to defend civil rights through legal arguments in court. This also includes launching public interest lawsuits, signing open letters regarding a case, commenting publicly on a particular legal policy, and all other legally-permissible means of monitoring the government and promoting the development of rule of law. For example, applying for the opening up of official files on a certain matter can unearth an inexhaustible source of information for further action. We believe that through hard effort on individual cases we can make gradual progress on rule of law in China. Of course for lawyers, the first consideration must be the basic rights and interests of the client or concerned party, but it is not enough to limit oneself to the case; the process of intervention in the case must also let rule of law shine through, and promote the cause of civil rights. If a lawyer takes his fee and then follows conventional procedures to speak a few words in court, then goes on to take money from another person, or perhaps forges an alliance with a judge or even commits bribery in order to win a lawsuit, this does not constitute an act of rights defence, because it lacks the necessary intention and the pursuit of values.

In the 1980s a friend of mine began to reflect on the question of China’s transformation to democracy and rule of law, then spent half of the 1990s in prison. When he saw what rights defence lawyers were doing, he burst out with a sudden revelation: “Ah! Why didn’t we think of this method of rights defence? What they are seeking is a way to tie intellectuals’ concepts of freedom and democracy to issues directly affecting ordinary people, and rights defence provides such a channel. The 1980s student democracy movement shouted out slogans opposing corruption and calling for human rights, democracy and press freedom, but it was unable to connect these abstract slogans with people’s actual lives and interests. What is the direct relationship between press freedom and the lives of peasants and laid-off workers? How can grand theories of democracy and freedom ‘mobilise the masses’? But rights defenders use individual cases – forced relocation and land seizures, family planning, injustice, personal liberty, labour rights, food safety – to create this relationship: they are not only able to defend the interests of ordinary people, but can actually push forward democracy and rule of law at the same time.”

I replied to him, “It’s not that you never thought of it, it’s just that this kind of rights defence couldn’t be carried out in the political and social environment back then. A group of dynamic lawyers have used the legal process, the courts, the traditional media and the Internet to intervene in individual cases – that

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124 A Sword and a Shield: China’s Human Rights Lawyers

was not possible in the 1980s and 1990s, and hard even to imagine at that time.

Open letters, street protests, democracy movements on campuses, lectures and salons – those were the forms the democracy movement took back then.

Lawyers were few, and didn’t constitute an independent profession. Many cases were not represented by lawyers, and even in certain human rights cases, lawyers were extremely limited in the extent to which they could serve their function.

The law was also very incomplete – the Administrative Litigation Law that allows ordinary citizens to sue government authorities was only passed in 1989.

Political repression was severe, and it was common for people to be imprisoned for signing an open letter. Civil space was extremely narrow, and there was no Internet to speak of. Without the open letters, independent political parties, student movements and the imprisonment of democracy’s forerunners back then, how would we have the rights defence movement today?”

By the next stage there were more and more legal professionals (although still far from having an integrated community of lawyers, scholars, judges, procurators and other legal practitioners), and more and more laws and regulations that could be used, along with the gradual development of better knowledge of rule of law and civic consciousness. The government also began using the slogan of governance according to law, and the law began to play an increasingly important role in social life and political society, while economic development also enhanced the freedom of ordinary citizens. Without these conditions, there would have been no opening for rights defence.

In the 1980s, even calls for press freedom were controversial. Of course we still have to make these calls now, but we can take even more practical action at the same time. For example, if a writer is detained because of something he wrote, we can use the law to argue on his behalf in court – has the case been handled in accordance with proper legal procedures? Is the prosecution’s evidence problematic? Is there any legal basis for the crime in the indictment? Does the charge violate the spirit of the Constitution? And so on. At the same time, we can take the case to the media and the Internet, revealing the truth to put moral pressure on judges or on the officials behind the case.

In another example, calling for democracy is sensitive and abstract, and lacks an operative function. It’s a different matter, however, for independent candidates such as Yao Lifa and Xu Zhiyong to take part in people’s congress elections, and to actually win in these elections. Although there were precedents for this in the 1980s, they were too few to coalesce into any kind of political movement.

The Open Constitution Initiative (Gongmeng) has promoted and guided independent candidates in local People’s Congress elections throughout the

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What Is Rights Defence? 125

country, disseminating information on election law, formulating election strategies, organising volunteers to campaign for candidates, monitoring the election process, and analysing and proposing means of correcting unreasonable election practices – this is a way to make calls for democracy genuinely operative. This is a basic means of rights defence, and is also a basic concept in itself.

There are many problems in China’s legal system, but most of them don’t involve drafting new laws, but rather making the government abide by those that already exist. If we look at China’s Constitution and the laws pertaining to citizens’ basic human rights, even without amendment, they basically conform to international norms. China has many human rights problems and social contradictions, but if just one article of the Constitution is implemented in practice, China’s human rights situation will immediately right itself, China can join the ranks of countries governed by rule of law, and all other social problems will be very easily resolved. That is Article 35: “Citizens of the People’s Republic of China enjoy freedom of speech, of the press, of assembly, of association, of procession and of demonstration.”3 If there is a genuine right to free expression and assembly, then what human rights problems cannot be resolved?

A huge gap exists between the law on paper and its actual implementation, and the rights defence movement aims to fill that gap. After a system of discourse (system of meaning) is produced, the circumstances exist to make it a reality.

For example, in the past any mention of “human rights” was considered hypocritical and capitalistic and brought criticism; it was an extremely sensitive matter to discuss human rights. But as this phrase was discussed more and more, it gradually became less sensitive and more positive, and ultimately “safeguarding human rights” was written into the Constitution.

Likewise “judicial independence” was previously an absolutely reactionary legal viewpoint, but gradually order was brought out of chaos, and now only a small minority of incorrigibles still criticise judicial independence. No mention of a term or phrase by any individual is insignificant; the use of the phrase along with the connotations we give it in our verbal exchanges, including the occasion on which we use it, our tone, implications and flavour, will influence social views and values, and in that way have an impact on the social structure.

Legal professionals serve as a bridge between legal language and practical implementation of the law; as the discourse of free expression, property rights TN: As translated by People’s Daily, http://english.peopledaily.com.cn/constitution/ constitution.html.

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126 A Sword and a Shield: China’s Human Rights Lawyers

and rule of law gain legitimacy, these terms and their related legal provisions must be put into practice. That is not to say that shouting out these terms is all that’s needed for their implementation; every individual needs to fight hard for these issues in his or her daily life. Without this struggle, there can be no human rights; fighting for rights is every individual’s duty to society, and is what the German scholar Rudolf von Jhering referred to in his book Der Kampf ums Recht (1872). Only by digging up evidence, referring to articles of law, arguing on the basis of reason and making full use of the space the law provides for rational action can the law on the page become law in action and expand the boundaries of the system.

Is rights defence useful? We believe that by defending human rights through the legal process in specific cases, and demanding that the government and courts operate in accordance with law, we will over time serve the purpose of promoting rule of law, and facilitate social transformation and systemic reform.

1.

Although imperfections in the legal system and lack of judicial independence make it hard in many cases for justice to be achieved, at least it is sometimes possible to defend human rights.

2.

The process of rights defence can promote citizens’ understanding of rule of law and raise their civic consciousness, as well as disseminating rights defence concepts and methods. Through the rights defence movement, more individuals can understand their rights, take up the law as a weapon and demand that the government abide by the law and that those who violate the law bear the consequences. This can lead to people’s own rights being more adequately protected, as well as being something that they should do. More and more, people are coming to the realisation that the government is not a leader raised up on some distant plane, but that it must also operate in accordance with laws and regulations, and that it must be accountable to the taxpayers its serves. Of course, the rights defence process is first and foremost a process of personal education and growth. “Enlightenment” must take place first of all within oneself; no one who has grown up under China’s education system and social environment can say that he or she has no need for “detoxification”; this is essential, but cannot be accomplished overnight: it is a long-term process of personal education. And activism is the best means of educating and promoting the self.

3.

Educate the government and demand and monitor the government’s observance of law. Train government officials through the specifics of the

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What Is Rights Defence? 127

rights defence process. The Constitution is meant to serve as a cage that confines the government and prevents malfeasance as the government performs its duty of public management. Although the courts have not rendered judgments according to law in the specific cases in which we have intervened, we can use the process as a means of demanding that the government and the courts respect procedural rules, as well as revealing or complaining about unlawful actions, publicly exploring the social relevance of the case, and utilising the procedural rights endowed by law, and in this way managing to move or educate certain officials. This enables us to indirectly influence the way the government behaves.

For example, if a witness does not appear in court, this is an extremely serious problem, and yet in most cases witnesses do not appear in court. That was the situation when I represented Gan Jinhua’s death penalty case4 – with so many doubtful points in the case, not a single prosecution witness or expert witness appeared in court, so how could we cross-examine them? How could we know if their testimony was true or false? There are virtually no criminal judgments in China that meet the legal standards on hearsay evidence. Although the judgments in many cases are not in error, the procedural aspects violate the most basic tenants of the litigation system. Many lawyers do not dispute or dare to dispute this point; the procurator brings out some written statement and reads it aloud, and the lawyer can only argue on the basis of its content – this is unacceptable. You have to rigorously dispute this in accordance with Articles 37 and 47 of the Criminal Procedure Law, whether the prosecution listens or not.5 Without judicial independence there is no rule of law, but judicial independence is not bestowed from above; lawyers and legal professionals must fight for it, bit by bit, in a court of law.

TN: Gan Jinhua was convicted of robbing and killing two nuns in Foshan, Guangdong Province, in 2004. He denied having committed the crime. See Nanfang Dushibao, “Gan Jinhua weihe zai bei panchu sixing: Zhengju xincheng wanzheng zhengjulian” (Why Gan Jinhua was sentenced to death a second time: Chain of evidence was complete), 18 April 2008, http://news.sohu.com/20080419/n256390383.shtml.

5 TN: Article 37: Defence lawyers may, with the consent of the witnesses or other units and individuals concerned, collect information pertaining to the current case from them and they may also apply to the People’s Procuratorate or the People’s Court for the collection and obtaining of evidence, or request the People’s Court to inform the witnesses to appear in court and give testimony… Article 47: The testimony of a witness may be used as a basis in deciding a case only after the witness has been questioned and cross-examined in the courtroom by both sides, that is, the public prosecutor and victim as well as the defendant and defenders, and after the testimonies of the witnesses on all sides have been heard and verified… Translation

by Chinacourt.org posted on the CECC website, http://www.cecc.gov/pages/newLaws/ criminalProcedureENG.php.

4

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128 A Sword and a Shield: China’s Human Rights Lawyers

Rights defence can accumulate the moral and organisational resources of civil society, and in that way cultivate and expand the power of civil society.

The enthusiastically supported rights defence activities all over China have gradually given rise to some influential and prestigious rights defenders. They apply their appeals, writings, activism and professional expertise to various human rights domains (land rights, freedom of expression, AIDS, public interest law, labour rights, mental health, etc.), along with many grassroots elites throughout China, who demonstrate and engage their organisational abilities and moral prestige on behalf of the rights defence movement. With the Internet greatly facilitating exchanges between rights defenders, and accelerating networking and organisation within the rights defence movement, civil society is bound to develop a healthy power for defending civil rights and promoting social transformation. Although the rights defence movement and civil society constantly face pressures of all kinds, in this kind of difficult social environment, the pressure civil society is under to work out means of survival and development will lead to ever more diverse, effective and powerful methods of rights defence. It is conceivable that the government’s control and pressure will not cause the rights defence movement to grind to a halt, but rather will lead to an even stronger and more resistant civil society.

Edited from a speech in 2009 Translated by Stacy Mosher

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Developing Rule of Law through Public Interest Litigation Fu Hualing

The University of Hong Kong

Introduction

This paper studies the reception and development of public interest litigation in China. In this paper, public interest litigation (PIL) is defined broadly to include a judicial process, including court-based mediation and adjudication, in which grievances of a general nature, normally in relation to social and economic rights, are litigated in pursuit of legal remedies against government departments, public authorities and monopoly enterprises.

The defining characteristic of PIL is the use of litigation by lawyers and other rights advocates as a strategy to protect a general interest greater than that of the case. There is an ulterior motive behind such cases on the part of the lawyers, who aim at policy change through a legal process. Cases that are litigated thus reflect a general social concern that affects the interests of a wider group of people. Through representative litigation, lawyers and other intermediaries in PIL focus on certain sets of social problems, aiming at remedies that are politically permissible within the authoritarian system and legally enforceable

by China’s weak judiciary.

This paper describes, in broad strokes, five large trends that have developed since the inception of PIL in China. Those changes vary in pace and intensity, but all are evident and mutually reinforcing.

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130 A Sword and a Shield: China’s Human Rights Lawyers

From spontaneous action to institutionalisation PIL began in the mid-1990s as spontaneous acts by individual citizens who mounted legal challenges against monopoly enterprises and public authorities for their abusive activities and negligence. Well-known citizen activists included Qiu Jiandong, a legal worker from Fujian, who sued a local state-owned telecom company in 1996 for 1.20 yuan for overcharging long distance calls; Wang Hai, known for intentionally purchasing fake goods and then returning them with a demand for a full refund plus compensation; Wang Ying, a school teacher from Henan Province who sued a local alcohol manufacturer for causing the death of her husband, who died of chronic and excessive alcohol consumption; and Ge Rui, who sued the Zhengzhou Railway Station for charging 30 cents to enter a public toilet inside the train station. Many of the first generation citizen activists were themselves parties to disputes in which they were treated unfairly by their adversaries, be it an enterprise, a government department or the legal system itself. They learned the law through their suffering and became experienced in using law and litigation to protect their own rights and the rights of others. Peasants, workers, students, church-goers, AIDS patients, hepatitis B (HB) carriers and members of other vulnerable groups followed suit in airing their grievances in public and claiming their rights in court, with or without the assistance of lawyers.

Lawyers entered into the field at the same time, but played a less active role at the outset. Noticeably, major players in China’s PIL community made their debut in PIL around 1995 to 1996. As mentioned above, Qiu Jiandong started his first case in 1996. Guo Jianmei, the veteran PIL lawyer for women’s rights and long-serving director of the famous Peking University Centre for Women’s Law & Legal Services, took up PIL work after participating in the UN World Conference on Women hosted in Beijing in 1995. In Southern China, labour lawyer Zhou Litai brought his first lawsuit in Longgang, Shenzhen, in 1996, and Tong Lihua also started his Beijing PIL practice in the mid-1990s. Guo, Zhou and Tong are still firmly engaged in PIL. What was it that happened in the mid-1990s? First of all there was political opening. Deng Xiaoping’s Southern Tour in 1992 relaxed the political stranglehold imposed during the 1989 crackdown and encouraged the continuation of rule of law reform. Reforms were launched to 1) enhance government accountability (the passing of the Administrative Litigation Law and the State Compensation Law); 2) provide better protection of rights in the criminal process (the revision of the Criminal Law and Criminal Procedure Law); 3) grant more autonomy to the legal profession (the passing of the Law

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Developing Rule of Law through Public Interest Litigation 131

on Lawyers); and 4) enhance legal protections for particular groups such as consumers, women and children. All this was accompanied by the landmark signing of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). The 1990s were something of a “rights-decade” in China, in the sense just outlined.

Against this backdrop came another important institutional change that played a crucial role in facilitating the development of PIL. That was the separation of the legal profession from direct government administration, i.e., the quasiprivatisation and socialisation of the profession. It is true that lawyers remain dependent on the government in fundamental ways; that the government can achieve the purpose of controlling the legal profession as if it were governmentrun if it chooses to do so; and that most lawyers prefer to maintain close ties with the government. It is also true that some lawyers prefer to be independent and want to be critical and challenging. Before this separation and socialisation of the legal profession, lawyers rarely took the initiative to bring cases concerning general public interest to court. This constitutional change can be seen to have created the preliminary foundation for a separate, civil societybased legal profession.

Lawyers’ training gives them more organising power, and their specialist identity lends them greater legitimacy. The 1995 Law on Lawyers and the privatisation of the legal profession gave lawyers opportunities and incentives to engage in PIL. Lawyers have institutionalised PIL since the mid-1990s, and PIL in turn has become a convenient and useful tool that allows lawyers to strategise more clearly and become more conscious of the efforts they are making and of the consequences they wish to bring about. PIL fits well into lawyers’ concept of law, and there are few, if any, cultural or institutional barriers to adopting PIL into their practices.

It is clear that PIL in China is a result of both global legal transplanting and indigenous initiative. The concept of PIL was foreign to China before lawyers took note of the social activism mentioned above and started to practice PIL. As an academic discourse, PIL has clearly borrowed largely from the jurisprudence of the United States to explain and justify an indigenous practice. The concept quickly took root and became popular among Chinese legal academics and practitioners soon after its inception. Sino-US legal exchanges provided Chinese elite academics and officials with first-hand experience of legal instrumentalism through which public interest lawyers strategically used laws for progressive social reform. They were struck by the power and effectiveness

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132 A Sword and a Shield: China’s Human Rights Lawyers

of an independent legal profession and the non-governmental organisation (NGO) sector in bringing about social change through legal action. Funded by the Ford Foundation, the American Bar Association (ABA) and other organisations, China’s public-minded lawyers introduced the concept of PIL in China. In this sense, PIL in China is part of the global expansion of public interest law.

Prima facie, it seems surprising that lawyers and citizen activists have chosen the courts to pursue certain rights within China’s authoritarian system, where courts are timid and compliant and the legal culture is considered unreceptive to litigation. The political and legal environment is, however, actually conducive to litigation. The popularity of PIL in China can be explained first of all by the lack of alternative political institutions and processes through which aggrieved citizens can claim their rights. In China’s authoritarian system, political participation and competition for political power is prohibited or even criminalised, and the representative mechanism is intrinsically weak. Dispute resolution through political deliberation and participation is often blocked or simply not available. Under these circumstances, courts play an even more instrumental role in resolving disputes, maintaining legitimacy and controlling local bureaucrats. Matters that in other countries are more properly resolved by political means find their way to the courts in China. The judicialisation of politics within authoritarian regimes is a recognised phenomenon. Many public interest lawyers in Taiwan and South Africa, for example, have abandoned litigation to engage in direct political competition once a meaningful political process became available.

Secondly, there are opportunities for litigation. Access to courts is a right (in relative terms), and parties are entitled to bring a defendant to court to answer a complaint. The rhetoric of equality before the law is a powerful political legitimation tool, in authoritarian regimes in particular. Beijing has been instrumental in promoting the use of litigation to settle disputes. With little exaggeration, resorting to the courts to settle disputes is regarded as the symbol of rule of law in action and a defining characteristic of modern citizenship in modern China.

Thirdly, there are incentives for litigation. Compared with political and administrative processes, the judicial process is more formally organised and appears more neutral and accountable. Access to the courts is a right in law, at least, and denial of such a right demands justice. Parties in the process know they are all bound by procedural rules from which none can depart without proper justification. Judges in particular have to follow those rules to maintain

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Developing Rule of Law through Public Interest Litigation 133

legitimacy and credibility. There is a higher expectation of fair play in the judicial process.

Finally, litigation is a cost-effective means of advancing public interest and affecting policy changes. The cost of bringing a claim to court is not prohibitive in relative terms. Where litigation costs often deter the poor from bringing their cases to courts, many lawyers and others are willing to act as plaintiffs.

With a valid claim, a plaintiff can often bring an offending policy or practice to court without incurring excessive cost. As a result, the courts have become a meeting place for debates over social injustice.

The involvement of professional lawyers in PIL was initially spontaneous but gradually became a more conscious decision, and lawyers who gained renown for winning such cases continued in the field. The involvement of lawyers (including law students and law professors) thus led to the professionalisation of PIL. Replacing citizen activists, lawyers have become the spokespersons of public interest and dominate the discourse on rights and remedies, pushing towards a more legalistic protection of rights. While lawyers pick up more or less similar types of cases, with some exceptions, their approach is more refined, sophisticated and law-based. For example, lawyers and law students have instituted a series of lawsuits against various forms of discrimination since 2000.

Professionalisation leads to institutionalisation. Successful rights practice generates the fame and socio-economic capital required for lawyers to institutionalise their practice by setting up their own firms. Pu Zhiqiang, Mo Shaoping, Zhou Litai and Li Fangping are no longer individual practitioners, but senior partners in law firms. Institutions mostly take the form of a law firm, but can also be a university-based legal aid centre (such as Peking University’s Centre for Women’s Law & Legal Services) or a legal action-oriented NGO (such as Yirenping, Beijing Aizhingxing Institute or Gongmeng, also known as Open Constitution Initiative). An organisation creates a corporate identity that is more than the total sum of the lawyers in the organisation. This not only provides more institutional support but also allows lawyers to “hide” behind a corporate face to do what might not be possible for an individual lawyer acting alone.

Institutionalised PIL has become more specialised. Zhou Litai focuses almost exclusively on legal services for migrant labour, with a special focus on industrial injuries. Tong Lihua and his team concentrate on labour disputes and children’s rights. Other lawyers providing specialist services in PIL include Mo Shaoping

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134 A Sword and a Shield: China’s Human Rights Lawyers

(criminal defence on national security offences), Pu Zhiqiang (free speech cases), and Yirenping (HB-based discrimination and other discriminatory practices).

PIL turned a new page with the participation of law schools. Established in 1992, Wuhan University’s Centre for the Protection of Rights of Disadvantaged Citizens was the first legal aid centre in China to use academic and student resources. It was followed by other influential centres, including Peking University’s Centre for Women’s Law & Legal Services (established in 1995); the Centre for Legal Assistance to Pollution Victims of the China University of Political Science and Law (established in 1998); and more recently the Oriental Public Interest Law Firm established under the Institute of Law of the Chinese Academy of Social Sciences in 2003.

Institutionalised PIL in China is almost exclusively supported by generous donations from foreign governments and NGOs. In addition to technical support in terms of bringing new ideas and know-how to China, financial support from foreign countries has turned out to be one of the crucial factors contributing to the growth of PIL in China. Major PIL institutions, such as university-based centres and public interest law firms, survive mainly on grants from foreign donors. The more established an institution becomes, the more likely it will be funded by foreign donors.

From passivity to aggressive defence PIL in China has become more aggressive over the years. When PIL first started, lawyers devoted all their effort to nudging the door open and coping with the legal establishment; now they are mounting open challenges to push back boundaries. Once PIL became officially recognised, well-organised and sufficiently supported, lawyers became more aggressive in challenging the government in three ways: 1.

Substantively, lawyers are moving from conventional civil law (apolitical) cases to cases touching on core policy areas. PIL cases continue to focus predominantly on the protection of consumer rights, broadly defined, and are mainly a conservative project in which lawyers work within the legal constraints and without a transformative agenda of political change.

There are, however, also clear signs that lawyers are diversifying, sometimes to sensitive policy domains such as lawsuits against environmental pollution, largely perpetrated by influential corporations and involving a large number of members of the public who are prone to take both

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Developing Rule of Law through Public Interest Litigation 135

legal and extra-legal action (such as demonstrations); judicial review against powerful government departments to protect citizens’ rights; and women’s rights issues, in particular domestic violence and sexual harassment. Lawyers have also initiated litigation in traditional core areas such as the hukou system, the one-child policy, religious regulation and village elections.

2.

Procedurally, lawyers are asserting their independence in advancing legal arguments, and the time when the government could dictate what lawyers could say in court has long passed. Going beyond a mere application of law in a concrete case, lawyers have challenged the illegality or constitutionality of local rules, administrative regulations and other subsidiary legislation, and they mobilise constitutional rights to protect individual rights from government or private infringement. Lawyers are demonstrating aggressiveness even in criminal cases, where they face the greatest constraints.

3.

Politically, lawyers are moving beyond the law by advancing political arguments and engaging in politics. Directly or indirectly, lawyers have challenged the police and prosecution for abusing legal process, in particular the use of torture to force confessions. They have also challenged the judiciary for lack of independence in decision-making.

Some lawyers have actually gone beyond conventional civil rights actions to engage in risky politics, with certain lawyers leading and participating in social movements. In campaigns promoting political reform (such as the publication of Charter 08); religious tolerance (such as protecting the freedom of house-church goers); freedom of expression challenges to censorship cases; or petitions against police abuse of power (such as calling for the abolition of Re-education Through Labour – laojiao), lawyers played an instrumental role in drafting petitions, providing legal advice and organising activities.

From litigators to network(ers) Lawyers typically possess good organising abilities, and once a case is filed in court, people who share the same interest cluster around it, creating the momentum for collective action. All of a sudden, otherwise sporadic, disorganised and inconsistent voices of criticism become a well-coordinated alliance with well-defined common objectives.

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136    A Sword and a Shield: China’s Human Rights Lawyers

There is a tacit alliance between media and public interest lawyers. Lawyers need reporters to publicise their case and their cause as they seek support in the court of public opinion in hopes of influencing judicial decision-making. Reporters need to get inside stories and a jump on recent developments to enhance the circulation and republication of their news. The reputation of reporters and the profitability of their organisation depend, to a degree, on access to news sources, and lawyers often prove to be reliable, interesting sources.

Information technology is widely used by public interest lawyers to maintain constant communication with the media and other people with shared concerns.

Many lawyers maintain a mailing list of reporters and have close relationships with reporters from high-ranking newspapers or the Xinhua News Agency, especially those who have the privilege of writing internal reference reports.

Public interest lawyers also maintain personal blogs, uploading information and maintaining contact with supporters and comrades-in-arms. To handle breaking news, lawyers use mobile phone messaging for instant communication with their supporters.

In addition to media reports, lawyers are well known for their ability to solicit academic support by paying leading academics and reporters to attend academic seminars. Academics express their support for a cause, which is then covered by reporters attending the seminars. It is also common for lawyers to pay academics to prepare expert opinions in support of their positions.

The success of the emerging on-line NGO Yirenping deserves special mention.

This NGO is behind most, if not all, anti-discrimination lawsuits, with a special focus on discrimination against HB carriers. After a successful debut with a highly-publicised case in 2003, it became silent for a time but came back with a vengeance. Under the able leadership of Lu Jun, it initiated about a dozen cases in 2006, with the number surging to more than 40 in 2007 and more than 60 in 2008. It is likely that the number of cases will exceed 80 in 2009.

The preferred strategy of Yirenping is to engage as many lawyers in the litigation as possible to popularise the cause among lawyers in different places. While the central office may search and contact lawyers directly, it is more willing to rely on the referral of lawyers with whom it has worked. The referral process tends to provide more reliable and trustworthy lawyers, and also serves an educational and training purpose through which one lawyer passes his or her experience on to another. Anti-discrimination litigation is new to Chinese law, and lawyers have to learn from scratch. In any event, the entrusted lawyers receive detailed

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Developing Rule of Law through Public Interest Litigation 137

briefings and clear instructions, and continuous communication throughout the process.

When a case is filed with the court, HB organisations launch their news release and keep the issue alive through various forms of information technology.

Additionally, Yirenping also often sponsors academic seminars and conferences to discuss specific cases and general policy issues.

During the litigation, support from the HB community is mobilised in both the virtual and real worlds. When a case goes to trial, HB activists organise rallies in front of the court, with banners and pamphlets denouncing discrimination and supporting the plaintiff. Another wave of media campaigns is typically launched after a decision, especially a favourable one, is delivered by the court.

From shield to sword Most PIL lawyers play a largely defensive though increasingly aggressive role.

They use the law as a shield to defend people whose rights have been violated by the government and public authorities, but they have also started to use the law more proactively and tactically.

Lawyers have started to exploit opportunities for legal action. Potential legal claims against the government and powerful groups abound. Lawyers can wait for plaintiffs passively in the traditional manner, or they can plan ahead for legal action. Activist lawyers can identify legal opportunities, in particular a problematic government decision, and plan subsequent legal strategies, especially identifying a proper plaintiff, to enhance the possibility of winning and maximise the impact of the case.

Human rights NGOs, including university-based legal aid centres, are generally proactive in searching out cases. Under the leadership of Guo Jianmei, the Peking University Centre for Women’s Law & Legal Services has used litigation strategically to defend and promote women’s rights and gender equality since 2004. Guo’s team has now litigated across the country on major issues concerning women’s rights, including domestic violence, sexual harassment, gender-based discrimination, women’s property rights (especially the land entitlements of rural women who have married out of their natal families), job security for pregnant women, and crimes again women and women’s right to self-defence. Through PIL, the Centre is able to combine litigation with publicity, social networking among women’s groups, enterprises and governments, and lobbying for law reform.

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138 A Sword and a Shield: China’s Human Rights Lawyers

HB groups are particularly well organised and systematic in organising antidiscrimination lawsuits in different parts of China. An online NGO, Gandan Xiangzhao, was established to provide a forum for discussing matters of mutual concern and a meeting point for HB carriers to organise counter-strategies.

It also serves as an instrument to promote HB-related education and raise consciousness among the HB population. In addition, the website also serves as an effective communication channel between organisers and ordinary HB carriers. Discriminatory practices may abound but are difficult to identify.

The website has become an effective network through which discriminatory practices are first identified by carriers or their supporters in on-line postings or emails to organisers, then verified by local supporters, and finally litigated by lawyers, if necessary.

During this shield-to-sword transition, PIL lawyers have taken the driver’s seat in the litigation process, “calling the shots” in determining strategies on matters such as who is to speak to the press, and when and how; and whether to settle with the defendant and if so how. It has always been a contentious issue whether and the degree to which the particular private interest in a case can be reconciled with the larger public interest behind the case. PIL lawyers are confident that the two interests can be reconciled, but it is also clear that they prioritise the larger public interest whenever there is a conflict. Clients become lawyers’ proxies in this political and legal process.

When using law as a sword, lawyers treat law as a pre-emptive instrument to prevent violation of rights from taking place. One example is in the field of labour rights, where labour lawyers actively engage labour unions and prepare collective bargaining agreements. Once an agreement is signed, lawyers closely monitor the enforcement of collective bargaining and threaten legal and other actions when a breach of the agreement is detected. This pre-emptive use of law is also evident in environmental protection and in protecting the rights of underground church-goers, AIDS patients and sex workers.

In addition to lawyers’ strategising in litigation, this shield-to-sword transition is taking place on a more general level. At a legal level, law is increasingly providing a legal instrument — a sword — that allows citizens to pre-emptively hold the government accountable. In matters relating to environmental protection, lawyers (CUPL lawyers in particular) and other advocates have been successful in forcing government departments to consult the general public and hold public hearings before a major decision is made. In such cases, the hearing becomes an integral part of a larger legal mobilisation to address environmental abuses. The most recent example is the possible deploying of

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Developing Rule of Law through Public Interest Litigation 139

judicial authority to compel government departments to disclose government information. Soon after the Regulations on Open Government Information (OGI Regulation) came into force on 1 May 2008, PIL lawyers began seizing the opportunity to press for greater transparency and accountability on the part of government departments.

From case handling to social movement A well-publicised case generally serves to sensitise the public to rights violations around them and to create a psychological process through which ordinary people can empathise and identify with victims, and ultimately speak out and act for them. Specifically, a successful case serves as a “textbook” for others to study and emulate. Public interest lawyers routinely publicise their cases; they are eager to share their experience and convince others that PIL requires no specialist knowledge, is cost-effective and even fun.

PIL lawyers are well aware of the limits of a court-centred approach, and use litigation on individual cases as an instrument for further policy reform or legislative change. Lawyers working on the rights of children, women, migrant workers, HB carriers or environmental issues all lobby the legislature, the courts and the government for legislative changes whenever an opportunity arises – while they are handling individual cases.

Litigation can also have symbolic value in challenging politics. PIL lawyers do not litigate in court because of its neutrality or effectiveness; even successfully litigated cases are unlikely to achieve any significant impact in China. In a system in which court decisions have only limited reference value at best, lawyers are not merely or principally seeking a court victory; winning or losing may be less relevant or important than the public interest generated by the case and the symbolic value of public discussion. PIL generally produces greater value in political symbolism than it delivers in tangible results for litigants.

Conclusion PIL lawyers are tapping into social forces at the local level for legal reform from the demand side. In spite of an increase in demand for legal remedies in society and an increase in the supply of legal rights, there is still a huge gap between the world in which rights are violated and the world in which justice is done.

Lawyers play an indispensable role in narrowing the gap by providing access to justice.

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140    A Sword and a Shield: China’s Human Rights Lawyers

Certain challenges need to be addressed to ensure the further development of PIL. Established PIL organisations still rely too heavily on external financial support for their survival, even more than a decade after their establishment.

Zhou Litai, Tong Lihua and university-based legal aid centres have achieved so much largely because of foreign financial support. The withdrawal (or obstruction) of such support would put their survival at risk.

Unlike in the 1990s, the reliability of courts as a forum for PIL can no longer be taken for granted; since 2003, more constraints have been placed on legal activism and PIL. If courts close their doors to PIL, lawyers and their clients may need to shift their struggles to other venues, including the streets. The alliance between lawyers and the media is even more precarious.

There is also the potential for co-opting by the state. A professionalised PIL has its own limitations; professional lawyers, through their training and socialisation, are more moderate, rule-bound and inclined to act within boundaries. Unlike the early fighters, lawyers are less willing to test the outer limits of the government; they are less provocative and less challenging.

Fighting with judges was regarded as a badge of honour when judges were regarded as ignorant of law, but now disagreement from the bench is regarded as an embarrassment to be avoided. Judges are now the experts and firmly occupy the commanding heights of legal knowledge. Lawyers tend to identify with judges on legal issues and defer to judicial authority.

Finally, there is the risk of state repression. When lawyers push the system forward, they risk backlash. Facing institutionalised and aggressive public interest lawyering, the government may perceive certain political risks that PIL brings about in organising civil society forces, and may become more cautious, hostile and repressive. In an authoritarian state, the line between what is permissible and what is prohibited is blurred and unpredictable.

The uncertainty becomes more apparent when PIL lawyers as cautious and moderate as Xu Zhiyong can be taken by surprise.

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The Dislocation of the Chinese Human Rights Movement Eva Pils

Associate Professor, Faculty of Law, The Chinese University of Hong Kong.1

Introduction The rise of the Chinese human rights movement coincided with a number of changes in Chinese society, such as economic development, changed forms of communication and information exchange, rising social disparity and corruption. Most importantly, it has been an unintended consequence of the legal reform process begun 30 years ago – unintended and unforeseen, because the Party establishment was at the time apparently not fully aware of the power of the new ideas of rights and law it was promoting. When this power was finally recognised, the leadership (or an important part of it) saw it as a threat.

It is therefore important to analyse, as I do in this essay, the government’s most recent responses to the perceived “threat” from the human rights movement.

I believe that the increasing number of repressive strikes against human rights lawyers, petitioners, and civil society organisations are disquieting symptoms of a wider intellectual shift. This shift has included, in recent years, official and academic attempts at a conceptual dilution of rights, for instance through the confusing rhetoric of “harmonious adjudication” and “harmony rights”; and a shift toward anti-rationalism in judicial processes, for instance through the propagation of the “Three Supremes” doctrine and a reversion to more authoritarian practices of settling disputes. Its problematic further consequence has been the human rights movement’s dislocation: its forced migration into spaces and forms of expression far removed from the – in crucial areas – increasingly inoperable law of state institutions.

AN: Many thanks to the Hong Kong Democratic Party for the opportunity to present an early draft of this paper at a conference held on the occasion of the 60th anniversary of the PRC, on 26 September 2009 in Hong Kong.

1

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142 A Sword and a Shield: China’s Human Rights Lawyers

The human rights movement as an unintended consequence of law reform Forty years ago, China was experiencing a period of celebrated “lawlessness”2 known as the Cultural Revolution. The situation has changed dramatically since then. In just 30 years, legal institutions have been re-established, laws and regulations addressing every aspect of a modern legal system have been promulgated, law schools have been established to train hundreds of thousands of legal professionals, and “legal consciousness” has been propagated among the general population. The expression weiquan – “defending rights” – became part of this new legitimising vocabulary, used in manuals and textbooks, news reports and special television programmes.

The proclamation of the idea of legality has been used to legitimise party rule, as in official uses of the phrase “ruling the country in accordance with law.”

Perhaps both this “legitimising” conception of law use and the leadership’s relative unawareness of law’s force could be attributed to the fact that its members had been raised in traditions of law-sceptical political thought. Even though the Maoist belief that law was an “instrument of oppression of the antagonistic classes” came to be abandoned,3 it was replaced, under Deng, by another narrow conception of law, namely the idea that law was essentially made – a social creation. If law was simply made by the ruling power authorised to do so, and if under the rules and principles articulated in the PRC Constitution and its 2000 Law on Legislation, the authorities that made rules also had the authority to interpret them and ensure compliance with them,4 the party-state was of course going to stay in control of the law it had created. The idea of human rights, centrally reliant on the insight that we have certain rights by virtue of our common humanity, therefore presented no threat to the architects of Deng Xiaoping’s reforms.

AN: “Wufa wutian zhan” (In praise of lawlessness), editorial, Renmin Ribao, 31 January 1967.

3 AN: Carlos Lo, “Socialist Legal Theory in Deng Xiao-ping’s China,” 11 Columbia Journal of Asian Law (1997) 469.

4 AN: The constitutional scholar Wang Zhenmin summarises this principle with the Chinese phrase “Shui zhiding guifan shui fuze shencha” (Whoever sets the standards is responsible for enforcing them). This phrase is ambivalent and can refer both to review of adherence to the norm or review of the norm itself (e.g. a rule created at a lower level but by the same kind of state power). Wang Zhenmin, Zhongguo weixian shencha zhidu (China’s unconstitutional examination system), Beijing, Chinese University of Politics and Law Press, 2004, p. 372.

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But if that was the leadership’s expectation in the 1980s and 1990s, it had misunderstood the dynamics of legal argument and legal practice that would play out in the following decade. It had failed to anticipate to what extent the laws promulgated and the propaganda slogans spread through the education system, news media and other channels would be taken up, interpreted and turned against the government by the law’s new experts: lawyers, officials and academics. From a non-sceptical perspective, the promulgation of new laws stipulating Chinese citizens’ rights in different areas of their lives could be understood as so many promises that the government would be bound by the new rules it created. Under these new rules, contracts would have to be fulfilled and property protected; the violation of another’s property or personal rights could trigger claims to damages, even against the government; no one could be falsely accused or mistreated in detention; officials breaking the law would not only be disciplined by the Party, but might also face criminal punishment.

Judicial professionalism, and more widely speaking, professionalism for all groups that came in contact with the law, became a widely propagated goal endorsed by the leadership of the judiciary, in particular its president, Xiao Yang.

According to the jurist and constitutional law scholar Yu Xingzhong, judicial professionalism discourse in the PRC did not simply reiterate liberal western discourse; rather it became a field for contentious exchanges between scholars and judges falling into three distinct camps of “official policy defenders” wary of too much professional independence of judges, “eager experimenters” intent on widening the autonomous space of the judiciary, and “dispute resolvers anchored in traditional Chinese culture,” represented by the majority of locallevel court judges, who rejected judicial professionalism.5 Right into the early years of the current decade, professionalism was the trend approved at highest official levels, at least within the judiciary.

The law made a difference: laws were honoured, case by case, in many instances.

Important procedural protections such as those for criminal suspects and defendants began to be put into practice. Citizens were, at least on principle, able to challenge government authorities for wrongdoing, and sometimes prevailed in lawsuits against the state. They even began to be able to challenge laws that were not in conformity with the Constitution: a new mechanism was introduced to challenge state regulations if they were not in conformity with higher-ranking law. Many put sincere hopes in constructing the rule of AN: Yu Xingzhong, “Judicial Professionalism in China: From Discourse to Practice,” in Prospects for Professionalism in China: Essays on Civic Vocations, William P. Alford, Kenneth Winston & William C. Kirby (eds.), Routledge, forthcoming 2009.

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law. Law schools at major universities began to imitate American law schools by opening clinics that permitted students to study the needs of less fortunate citizens, and to gain an understanding of the shortcomings of the existing legal system. A book about constitutionalism published in the same year said that China had now entered an “Age of Rights.” The new trend seemed unstoppable, and there was no meaningful alternative to a development that would gradually limit and diminish the power of the state. The genie that had been “let out of the bottle” was therefore more than just a set of rules; it was also a spirit of rule of law, rights protection and constitutionalism released into an atmosphere of burgeoning academic engagement with law and greatly improved means of mass communication through the Internet and other technological innovations.

At what point did the leadership – and who in the leadership – realise that these new developments, a consequence of its own legal reforms, were not the consequences it desired? Most likely, many factors contributed to this realisation. Among them may have been the Sun Zhigang case, in which citizens, scholars and lawyers succeeded in publicly exposing the unconstitutionality and basic unfairness of an administrative detention system used against internal migrants. Another pivotal case was that of lawyer Gao Zhisheng, who almost single-handedly challenged the government’s brutality against Falun Gong practitioners. Perhaps the most threatening phenomenon, from the perspective of the central government, was not a single case or cause, but rather the fact that the idea of rights took hold among ordinary Chinese citizens. Petitioners used the expression “human rights” with greater confidence and fluency, especially after it had been written into the Constitution in 2004 (“The state respects and protects human rights”). They increasingly decried the inadequacies of the judicial system as one of their primary grievances, and denounced even the system for bringing petitions – “Letters and Visits” – that they routinely used.

Today, China can be said to have a human rights movement, even though it is amorphous. It has consisted of largely uncoordinated actions and appeals against party-state injustice – taken, as it were, in the same direction – over the past ten to 20 years. The movement has no public leaders, but it has activists who call themselves “rights defenders” (weiquan renshi); it has ideals, images and symbols, and it has support from no one knows how many Chinese citizens – in particular China’s petitioners (shangfangzhe). These supporters and protagonists tend to be aware of one another, often through the Internet, even when they do not coordinate their actions. In recent years, the growth of this human rights movement has triggered party-state responses. Responses related to propaganda and changes in the conception of legal processes are discussed below.

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The state turns against rights In trademark law, “dilution” is a term used to indicate the process by which a famous trademark becomes associated with generic products different from the one for which the trademark has been created, resulting in damage to the trademark.6 More generally, “dilution” describes a process whereby a substance loses its characteristic properties or potency because it is mixed with another.

“Dilution” in the present context is used to describe how certain political concepts, including that of rights, have been rendered weak, confusing and obscure through their use in official language.

An important aspect of this process has been the creation of the term “harmonious society” and its application in various legal and political contexts in ways that have led to a dilution of not only the concept of harmony but also the concept of rights. “Harmonious society” was first used prominently in a resolution by the CCP Central Committee meeting in October 2006.7 “Harmony” was called for in a Chinese society increasingly marred by social disparity and enmity between different social groups. It became associated with welfare policies initiated under the new leadership, for instance, those designed to raise welfare levels in the countryside. A “harmonious society,” in this interpretation, seemed to be one in which social differences – of wealth, status, power, etc. – were part of a central script, but one that also required their mitigation for the sake of maintaining social stability.8 As a concept that could apply to music and other performance aspects,9 the use of “harmony” (hexie) moreover conjured up an imaginary listener or spectator and that person’s perception; it implied that dissonance was unpleasant and unwanted, and that different elements in society must contribute to the impression given by that one work.

After the slogan of “harmonious society” was launched by Hu Jintao, it came to be widely used, sometimes in surprising combinations; for instance, railway stations all across the country displayed large boards urging or

AN: Cf. e.g. section 10 (3) of the UK Trademark Act 1994, describing such a situation.

AN: See Xinhua News, “CCP Central Committee Resolution on the Construction of a Socialist Harmonious Society,” 18 October 2006, http://news.xinhuanet.com/politics/ 2006-10/18/content_5218639.htm.

8 AN: Leïla Choukroune and Antoine Garapon, “The norms of Chinese harmony: Disciplinary rules as social stabiliser,” China Perspectives, 2007/3, http://chinaperspectives. revues.org/document2013.html. Last visited 17 October 2009.

9 AN: Entry on hexie in The Contemporary Chinese Dictionary at p. 2121.

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perhaps celebrating “Harmonious Railway Construction.”10 An entity calling itself “Harmonious Art Group” could be found on the Internet,11 as could a website called “Harmonious China” devoted to harmony in different areas: harmonious society, harmonious cities, a harmonious countryside, harmonious neighbourhoods, harmonious families, harmonious enterprises, harmonious school campuses, harmonious personal lives and harmonious culture.12 Proposals for the revision of laws regulating forced evictions in the context of urban renewal called for “Harmonious Demolition and Relocation.”13 The City of Nanjing reportedly submitted a proposal to the United Nations for the celebration of a worldwide “Harmony Day.”14 In a much noted speech on the duties of the judicial organs in harmonious society, Politburo member Luo Gan warned against judicial independence – instead, judges must take a correct political viewpoint, which meant chiefly that “they must in their politics, their thoughts and their actions preserve identity with the Party.”15 Members of the judiciary, after Luo Gan’s speech, duly began to talk about “Harmonious Adjudication,” claiming that harmonious adjudication was only possible if it rested on correct political views, a correct world view and correct political attitudes of the “judicial corps,”16 and rejected excessive individualism, pleasure-seeking and Westernisation.17

AN: A picture of such a sign can be found at the following website: http://www.flickr. com/photos/21953266@N00/3230236199/.

11 AN: The website of the Chinese Harmonious Art Society can be found at http://www. hexiechina.org/news_show.asp?id=565&smalltypeid=1&bigtype=3.

12 AN: The “Harmonious China” website is at http://www.hxzg.net/.

13 AN: For a use of this expression see, for instance, Jiang Xuezhou, “Dingzihu de chengyin yu tuijin hexie chaiqian de silu yu duice” (The root causes of the emergence of nail houses and the promotion of a construction of a harmonious society), 13 April 2007, http://www. chinaelections.org/ NewsInfo.asp?NewsID=106836.

14 AN: Xinhua News, “Nanjing xiang Lianheguo shenqing jianli shijie hexieri” (Nanjing proposes worldwide Harmony Day to United Nations), 24 October 2009, http://news. sina.com.hk/cgi-bin/nw/show.cgi/107/1/1/1305543/1.html, http://news.xinhuanet.com/ world/2009-10/24/content_12316133.htm.

15 AN: Luo Gan, “Zhengfa jiguan zai goujian hexie shehui zhong danfu zhongda lishi shiming he zhengzhi zeren” (The political and judicial authorities’ historic mission and political responsibility for constructing a harmonious society), http://www.chinalaw.gov.cn/ jsp/contentpub/browser/content pro.jsp?contentid=co2142286068.

16 AN: In Chinese, faguan duiwu.

17 AN: See e.g. Henan High People’s Court President Zhao Gaochao, “Zhuahao sige jiehe shixian hexie shenpan” (Correctly grasping the Four United, implementing harmonious adjudication), 19 October 2009, at http://www.chinacourt.org/html/article/200710/19/270255.shtml.

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The Dislocation of the Chinese Human Rights Movement 147 “Harmonious adjudication” diluted the idea of rights-centred court adjudication. Courts that adjudicate about the rights of the parties in litigation, or that determine the guilt of the defendant in a process duly taking her rights into account, often have to come down on one side of an argument or arguments in their decision. Unlike mediation decisions, judicial decisions should be made because they are right and not because the parties like them or are willing to consent to them. The possibility of sustained disagreement before, during and after a court process is always given, yet disagreement does not harm the integrity of the process; on the contrary, no one must be forced to agree even with a decision that is legally correct. Adjudication on this account has nothing to do with harmony.

But clearly, “harmonious” adjudication (hexie shenpan) was to be very different from rights-centred adjudication; it was to reinforce dispute resolution methods that have long been used in Chinese legal practice, but that had seemed to come under attack from the judicial professionalism discourse of the 1990s. The new harmonious administration of justice (hexie sifa) was to satisfy the people or the people at large (renmin or guangda renmin), satisfy the needs of the economy and, incidentally, also protect lawful “rights and interests of the parties.” It was to get rid of “mechanical legal provisions,” “combine mediation and adjudication by giving preference to mediation,” “pay attention to popular opinion” by holding meetings at which “the people” could give their opinion on how to decide cases, and “settle matters in one judgement.” It was also to “adhere to absolute party leadership.”18 By emphasising “right thinking” and “mediation” by judges in court, as well as emphasising popular opinion, “harmonious adjudication” delegitimised confrontation and marginalised disagreement, relegating it, as in former Maoist times, to persons not belonging to “the people” or the “people at large.” By combining “adjudication” with “mediation” it created a terminological basis for a dangerous combination of “mediated” compromise with adjudicative coercion.

Another expression produced by the new “harmony” discourse was “harmony rights” (hexie quan), a term (apparently) first used by the director of the China University of Politics and Law at an international conference on “Human

AN: Zhang Liyong, “Luli shixian hexie shifa” (Work hard to practice harmonious administration of justice), People’s Daily, 10 September 2009, http://www.chinareports.org. cn/HeNan/hnhf/200909/28935.html.

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Rights: World Peace and Development.”19 Trying to back up his views through various references to Chinese philosophy, Professor Xu Xianming proclaimed that it was time to acknowledge a fourth generation of human rights: In harmonious society, human rights claims are centred on man himself, seeking harmony of body and soul, seeking peace, beauty and common prosperity between man and man; in the universe, they seek a state in which man and nature achieve the harmony of rhymes and music… Compared to the three traditional generations of human rights, harmony rights focus on creating new things rather than rehabilitating old ones; they focus on transcendence rather than preservation; they focus on bridging gaps rather than confrontation… The inherent value of harmony rights consists of everyone being treated benevolently by the public authorities, and this is also a legal claim implicit in harmony rights.20 The grammatical beauty of “harmony rights” was that it merely seemed to qualify what it diluted. It is impossible to tell in what ways the state is to be “benevolent” toward, say, criminal suspects, death row prisoners, corrupt officials, dissidents or landless peasants, and how the “harmony right” claim to benevolent treatment by public authorities could be asserted by the respective groups without engaging in “confrontation.” This effect was, if anything, reinforced by the claim that harmony rights somehow transcended other rights (see above). Even though Professor Xu’s speech was immediately ridiculed by some netizens,21 it effectively illustrated the general technique by which the idea of rights was weakened. The advantage of this conceptual dilution is that the party-state can go on to claim it is protecting and promoting “rights.”

In August 2008, the political leadership of the judiciary began projecting a new image of the judicial profession and, by implication, the new system of AN: China Digital Times, “’Harmony Rights’ as Human Rights? – Xu Xianming et al,” 27 November 2006, http://chinadigitaltimes.net/2006/11/harmony_rights_as_human_ rights_xu_xianming_et_al.php.

20 AN: Xu Xianming, “Hexieguan: Di sidai renquan” (Harmony rights: The fourth generation of human rights), http://211.167.236.236/china/newzt/2006magezine/200602006424160801. htm.

21 AN: Comments mentioned at the website range from “It is utter nonsense” to “Obviously a theory for fooling people, but we can do nothing but watch it be put into textbooks,” “All my netizen friends, please respect the right to kiss the ass of this NPC representative” and “The old nerd is making fun of China’s human rights. The Discipline Committee should detain him.” China Digital Times, “’Harmony Rights’ as Human Rights? – Xu Xianming et al,” 27 November 2006 at http://chinadigitaltimes.net/2006/11/harmony_rights _as_human_ rights_xu_xianming_et_al.php.

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adjudication they wished to implement. According to this new slogan, the “correct exercise” of judicial power has to serve the overall goal of strengthening Party leadership, and in adjudication work “the Party’s cause is supreme, the People’s interests are supreme, and the Constitution and law are supreme.”22 Zhou Yongkang, Politburo member and former Minister of Public Security, had asserted earlier that the law must be used as a tool by legal institutions, which “must of their own accord accept supervision from the Party, supervision from the People’s Congresses, supervision from the Political Congresses, and supervision from the masses.”23 The “Three Supremes” amounted to a rejection of the “judicial professionalism” that had been a major policy goal under the previous President of the Supreme People’s Court, Xiao Yang. It was impossible to ask how conflicts arising between the “Three Supremes” would be reasonably resolved without questioning the entire doctrine, for the “Three Supremes” doctrine effectively claimed that the contending forces of Party and law were one and the same, and were moreover identical with the people’s interests. Rather than simply asserting Party supremacy (as one would have expected in Maoist times), the doctrine suggested that as the law and the people’s interest were coextensive with the Party’s cause, no question of ultimate supremacy could seriously arise.24 Liberal legal scholar He Weifang shortly after the publication of the new slogan wrote AN: Wang Shengjun, “Shenru guanche luoshi dang de shiqida jingshen, zhashi juohao renmin fayuan gexiang gongzuo” (Deeply and comprehenseively realising the spirit of the Seventeenth [Party Congress] and doing the courts’ work), Qiushi, 485 (2008), http://www. qsjournal.com.cn/qs/20080816/GB/ qs%5E485%5E0%5E1.htm.

23 AN: Zhou Yongkang, “Jianding buyide zuo Zhongguo tese shehui zhuyi shiye de jianshe he hanweizhe,” at http://www.qsjournal.com.cn/qs/20080801/GB/qs%5E484%5E0%5E1. htm.

24 AN: Scholar Wang Zhenmin of Tsinghua University claimed that “the ‘Three Supremes’ are not in opposition to one another, they are united by an internal logic. ‘The Party’s cause is supreme’ articulates a requirement concerning the politics and the spirit of the People’s Courts; ‘the people’s interests are supreme’ is a requirement concerning the social effects of the People’s Courts’ administration of justice; ‘the Constitution and laws are supreme’ is a legal requirement concerning the People’s Courts. In China, the Party’s cause and the people’s interests are united. The CCP does not have any private interests of its own; the CCP’s basic goal is to strive for the basic and long-term interests of the people. China’s Constitution and laws, in turn, have been formulated under the leadership of the CCP. Just as the Party’s basic line and general and specific policies have been turned into laws, so also the people’s interests have been turned into laws. Therefore, the ‘Three Supremes’ is actually an ‘organic whole with three aspects’ – a trinity, a completely unified whole.…” See “Jinyibu shenhua ‘sange zhishang’ zhidao sixiang de lilun yanjiu – renmin fayuan gongzuo zhidao sixiang lilun yantaohui xuezhe fayan zhaiyao,” People’s Court Daily, 26 June 2009, http://blog.sina.com. cn/s/blog_488663200100ehpv.html.

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a short essay entitled “Three Supremes: Who Is Supreme?”25 Obviously, even though all three considerations had been characterised as highest (zhi shang), “the Party’s cause” came first. Pointing out that the Party’s interests would inevitably clash with the people’s interests and with the Constitution and laws in many routine cases, He Weifang commented that rather like Christianity’s Holy Trinity, the “Three Supremes” doctrine demanded faith without rational foundation.26 At a practical level, the new policies are reflected by a new judicial practice emphasising more than previously the role of court “mediation” (tiaojie), requiring judges to perform administrative functions such as resolving disputes before they reach court, or to provide social welfare services to potential litigants such as laid-off workers,27 and organising training programmes that specifically instruct judges on methods of addressing “mass incidents” and ways of handling the media so as to suppress “false rumours.”28 In the case of workers threatened with unemployment or loss of back pay, such measures may provide them with temporary relief. But if the long-term result is to redefine the function of the courts such that an impartial adjudication of cases on the basis of the law is no longer central, and that involves the use of coercive methods to “settle” disputes without regard to legal rights, the long-term consequence will be to deny workers the protection of the law, a protection they are unlikely to be able to do without.

Taken together, “harmonious adjudication,” “harmony rights” and the “Three Supremes” have reduced the ability, ascribed uniquely to judges, to adjudicate disputes on the basis of law, and have prepared the ground for judges to be reintegrated into an administration of the party-state based on authoritarian centralism rather than on a separation of functions. Concurrently, and AN: He Weifang, “Shange zhishang shui zhishang” (Three Supremes: Who’s Supreme?), August 2008 at his blog, http://blog.sina.com.cn/s/blog_488663200100atga.html.

26 AN: He Weifang, “Shanli bu yitilun – yu Jia Yu, Wang Zhenmin, Guo Feng, Han Dayuan, Zhuo Zeyuan, Zhang Zhiming, Ma Huaide, Fu Zitang, Wang Limin, Zhu Jiping jiaoshou shangque” (A Non-Trinity Theory – Debating with Professors Jia Yu, Wang Zhenmin, Guo Feng, Han Dayuan, Zhuo Zeyuan, Zhang Zhiming, Ma Huaide, Fu Zitang, Wang Limin, and Zhu Jiping), 22 July 2009 at his blog http://blog.sina.com.cn/s/blog_488663200100emaw. html.

27 AN: He Xin, “Street as Courtroom: State Accommodation of Labor Protests in South China,” 11 August 2009, SSRN: http://ssrn.com/abstract=1447131.

28 AN: Legal Daily, “3,500 ming fayuan yuanzhang de ‘Zhongguoshi jixun’ yingdui quntixing shijian yu chuli maiti guanxi cheng peixundian” (“Chinese-style group training” of 3,500 head judges focuses on mass incidents and handling media relations), 10 September 2009, http:// www.legaldaily.com.cn/zmbm/2009-09/10/content_1151714.htm.

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controversially, state propaganda is replacing the image of the professional judge with the image of the “people’s judge,” Ma Xiwu, a famous model judge of the 1950s who used a method of authoritarian “mediation” to settle disputes.29 These changes are complemented by a strong emphasis on discipline and the cultural trappings of earlier periods of the PRC.30 Using Yu Xingzhong’s analysis of the previous era under Supreme People’s Court President Xiao Yang, it is as though the basic level court “camp” of what he calls “dispute resolvers” had been brought back to the forefront of the new reforms.

These developments in party-state propaganda and accompanying academic discussions may seem isolated from what happens in real society; in casual conversation, some judges, lawyers and academics may shrug it off as irrelevant propaganda, not taken seriously by anyone, and not spelling any real changes to legal practice. But this would be a mistake, as I argue in the following section.

Dislocation of human rights discourse The new propaganda coincides with tightening repression of rights and democracy activists and petitioners, and their forceful removal from courtrooms and petitioning offices, as well as a further sublimation of opposition into artistic expression and virtual space. Both developments reflect a disassociation of the Chinese human rights movement from Chinese legal practice.

The power enjoyed by lawyers, rights-focused NGOs, activists and petitioners is a power based on liberal legal and political practices. To varying degrees, public interest and human rights lawyers are professionally engaged in cases challenging public authority, without in any way partaking in such challenges.

NGOs and individuals working on human rights issues are in a similar position, as are petitioners in their own cases.

It is not difficult to think of all these groups as contributing to the construction of a better legal system by taking rights cases to court, bringing them to public attention, and effecting changes in attitudes that ultimately translate into changes

AN: Zhao Lei, “Shifa gaige zui re zhengyi: Ma Xiwu fuhuo” (A vibrant judicial reform debate: Ma Xiwu’s revival), 11 June 2009, http://www.nanfangdaily.com.cn/ nfzm/200906110115.asp.

30 AN: An example of this new, reactionary symbolism is the “Song of the Five Disciplinary Offences” recently recorded by judges of the Ningxia judiciary and accessible at http://www. nxfy.gov.cn/99/2009-4-15/2920302@1078.htm.

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in the law; or, as in the American Civil Rights movement, effecting changes in the law that may even precede changes in social perceptions and attitudes. The expectation of groups and individuals involved in the Chinese human rights movement may have been shaped by these liberal foreign examples, not least because they had been “translated” into the Chinese context and discussed in educational, academic and practitioner environments.

Without channels of expression, avenues of redress and vocabularies based on such rights, they would be powerless and unable to influence the outcome of decision-making processes in legal cases, policy reforms, etc. Lawyers in particular depend on the institution of liberal legal procedures emphasising the rights of the litigant, suspect or defendant, and embracing adversarial and public court procedures. As a human rights lawyer once put it in conversation, only a few lawyers – the human rights or weiquan lawyers – “protect rights,” but more lawyers might be inclined to “protect the law” by insisting on adherence to its rules, because the power of the law is the only power they have.

It is not the point of this essay to provide a comprehensive account of the already well-documented measures that have been taken to repress this movement in the past few years.31 Rather, the point requiring emphasis is that the repression of all these groups in recent months has increased exactly as the party-state and academic establishment have been changing their rhetoric about the law, and have begun to tout the ideas of harmonious adjudication, the Three Supremes and harmony rights. Repression has included strikes against well-known human rights lawyers and activists such as the denial of licence renewals affecting a number of human rights lawyers in Beijing, as well as measures against petitioners, such as their incarceration in black prisons, and the shutting down of the NGO Gongmeng.

What is remarkable from the perspective of the present discussion is that there has been a change in attitude on the part of officials. For some time, the government when persecuting rights defenders inevitably embarrassed itself by the illegality of the means it was using and by having to accuse such persons of improbable crimes. Now, its officials have become more confident, because the idea of legality itself is being increasingly attacked by state propaganda.

A human rights lawyer in June 2009 remarked on a relatively small, but AN: See for instance, CHRD, “Annual Report on the Situation of Human Rights Defenders in China (2008),” http://crd-net.org/Article/Class9/Class11/200906/20090626172654_16022. html; CHRD, “Chinese Government Tightens the Screws Ahead of National Day,” 1 October 2009, http://crd-net.org/Article/Class9/Class15/200910/20091001013312_17511.html.

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symbolic incident illustrating these changes. Two lawyers had travelled to the city of Chongqing to help the family of a man who had died under suspicious circumstances in police detention. Shortly after their arrival, the lawyers were detained and taken in for questioning; in the police station, one was chained to a concrete slab and one to a metal cage; they were beaten, and sent back to Beijing. In contrast to previous, similar occasions, the police refrained from sending along plainclothes officers or hired thugs to do the dirty – and illegal – work. Lawyer Jiang Tianyong commented: Formerly the sort of people who beat us lawyers were plainclothes police officers; none of them would dare to beat one of us lawyers openly in broad daylight while wearing their official uniform – that really practically never happened. But this time they stormed our client’s home, telling them it was for an identity check, and took the lawyers away and beat them. This is no longer the old simple method [of hiring thugs or using plainclothes police]; it is a very blatant infringement of individual rights by public power.”32 From the perspective of symbolic analysis, police officers wearing uniforms while beating up human rights lawyers is an attempt to reclaim the trappings of legitimate authority for an exercise of power that stands in principled opposition to the rule of law. It is thus also an explicit rejection of the idea that rights limit the power of the government, and the explicitness of this rejection is a direct reflection of a changed attitude to law and rights, a more confident mindset no longer willing to recognise legal constraints on the exercise of power. In all these aspects, the Chongqing incident reflects a wider development – the shift within the judicial system and judicial attitudes described above.

If this is correct, a further hardening of attitudes toward human rights lawyers is to be expected. One may expect that attitudes toward the legal profession, but also within it, will change to accommodate the new trends. Lawyers will be told to participate in the new “harmonious adjudication” processes. Complying with the new spirit the party-state is trying to disseminate, they will be told to AN: RFA, “Liu-Si qianxi Zhongguo dangju dui weizuan lushi de daya zai shengji” (On the eve of June 4th, Chinese authorities increase suppression of rights defence lawyers), http:// www.rfa.org/mandarin/ yataibaodao/64-05242009202634.html. Jiang also comments: “We feel that since the time of [the twentieth anniversary of ] June 4th, the repression of lawyers has kept getting worse and worse. The human rights lawyers are entirely reliant on the law.

What they defend is in fact nothing but the dignity of China’s laws. The way they are treated – I really don’t know what those who suppress us are trying to achieve. How could it be wrong for lawyers to defend the dignity of the law – to work to make this society more ordered? I have no way of understanding this.”

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participate in mediation work carried out as part of the larger administration of justice. A recent “Opinion” issued jointly by the Henan Judiciary and the Henan Justice Bureau has already done so, admonishing the “lawyers’ corps” to “further strengthen their understanding of the greater cause and sense of social responsibility, and actively to participate in litigation mediation (susong tiaojie), so as to effectively ease tensions, protect social stability and make an active contribution to the promotion of harmonious society.”33 They will be further discouraged from involvement in disputes that are politically sensitive or considered to be “mass cases,” as a recent communication by the Beijing Lawyers Association makes clear.34 They may, perhaps, face an increasingly stark choice between becoming part of the new forms of “harmonious” dispute resolution, or risking harassment and persecution. The same hardening of attitudes will affect – and indeed, already has affected – other human rights activists such as NGO workers and petitioners: More NGOs like Gongmeng may be shuttered. Petitioners are likely to continue being “pushed out” of Beijing by measures imposed and implemented prior to sensitive periods such as the 60th anniversary of the founding of the PRC, or be locked up in the extralegal detention facilities known as “black prisons.”

These recent developments have problematic further consequences. On the one hand, presumably as intended by the government, they make it yet more difficult for the courts to absorb rights demands in the judicial decision-making process, institutionally further marginalise human rights lawyers and other activists, and make it even harder for any individual or organisation to emerge as the human rights movement’s public leader(s). As human rights lawyers are increasingly forced to defend their own rights and each other’s rights, and as they are forced to leave legal practice, out of work and without regular incomes, they are less able to promote a wider cause of justice through legal work. As petitioners are increasingly harassed, they are less able than before to achieve a handling of their cases. As NGO workers are deprived of an institutional framework, they are forced to reduce their public interest activities. All the protagonists of the human rights movement are being pushed out of the

AN: See, for instance, the Henan High People’s Court and Henan Justice Bureau’s “Opinion on Fully Developing the Active Role of Lawyers in Litigation Mediation,” 25 August 2009, http://sifaju.bjchy.gov. cn/module/news/attachment/6562_1.doc.

34 AN: For an example of such an instruction largely reiterating the content of an earlier All China Lawyers Association Guiding Opinion, see “Beijing Lawyers Association Re-issues Guiding Opinion on Handling Mass Incidents,” 7 August 2009, http://blog.sina.com.cn/s/ blog_4b5857fb0100ej3n.html.

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institutional spheres previously provided to them, however reluctantly, by the state.

It is important to note, however, that the new attitude of the state is also pushing the protagonists of the movement into new spaces that no longer envisage constructive communication with the state. The movement is becoming more diffuse and amorphous, just as these expressions of protest are becoming more commonplace; and just as institutional channels to express their grievances or their clients’ grievances are being taken away from them, lawyers, petitioners and human rights NGO workers are gaining opportunities to develop greater solidarity with citizens in intellectual, rather than institutional, opposition to the party-state.

The re-emergence of the human rights movement in new spaces In an important moment of open alignment of goals, when more than 20 human rights lawyers were threatened with the loss of their licences in the summer of 2009, a group of Beijing petitioners staged a demonstration using the slogan “Lawyers for Us and We for the Lawyers!”35 Nothing much happened, except for this tiny demonstration being filmed and the video-clips with some reports being made available on overseas websites filled with similar reports.

But just as in the case of human rights lawyers being beaten by police officers in uniform, this small incident has symbolic significance. As the state’s institutions have gradually closed themselves to human rights demands made by human rights lawyers, human rights groups and petitioners, and as the state has increasingly repressed efforts to channel rights demands into its own institutions and has rejected the genuine supremacy of law in adjudication, protest has shifted from institutional channels to other forms of expression.

An example of this is the increasingly refined and savvy practice of weiquan demonstrations in the streets, with banners and shirts, characteristic slogans and characteristic Chinese characters. The use of the yuan character, apparently becoming more ubiquitous in this context, is significant as a way AN: CHRLCG, “Lawyers for Us, and We for the Lawyers” – A Thousand Petitioners Protest at Beijing South Railway Station against Suppression of Human Rights Lawyers,” 23 June 2009 at http://www.chrlcg-hk.org/?p=437; see videoclip at http://www.youmaker. com/video/sv?id=9493ebf7121e421ab92b952712c 02ab2001.

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of concentrating popular complaints about injustice and providing them with a collective symbol.: Yuan ( ) translates variously as “wrong,” “injustice” (in the sense of an individual instance of injustice) and “tort,” but also as “bad luck,”36 and in certain combinations the word has a connotation of “enmity.”37 Unlike “rights,” “law,” “legally protected rights and interests,” “legality” and “anti-corruption efforts,” the yuan discourse is entirely removed from that of the party-state. Petitioners use it with unregulated liberty, giving the broadest possible expression to the fact that they have suffered injustice, and they can use it to mark out the widest possible distance between themselves and those whom they see as having oppressed and wronged them. The yuan character has appeared most commonly on the white T-shirts worn by petitioners in the streets and in government buildings, and on the posters and signs they use, but it is also used in many other combinations.

There is also the “iconic” photographic image, such as the March 2007 image of the Chongqing Nail House,38 instantly recognisable by the many Chinese people who have read about it. It is for many – especially those affected by similar measures – a potent symbol of resistance to government in defence of the law and constitutional rights. But it is also a symbol of the meaning and content of the law, for in the Chongqing case, as in many other cases, the government authorities could point to a great deal of statutory law supporting its gradual progress toward a forced demolition order that would lead to the nail-house’s destruction. The more significant point in this case was made, once again, by law professor He Weifang: even if there were statutes and regulations supporting these measures, what use was China’s brand-new 2007 Property Rights Law if it left citizens without protection against the greatest de facto violation of their property rights? What was the point of the law if officials at the level of a municipal district government’s land administration bureau retained the power to make decisions that resulted in citizens’ homes being pulled down, often at a few days’ notice, without any meaningful legal redress?

Far from illustrating that Chinese citizens fail to properly understand what rights they do and do not have, occurrences such as these illustrate that the state falls short of the promise of legality it has been holding out for a long time.

It illustrates that legal activism is not restricted to legal institutions provided AN: See e.g., an online dictionary entry for yuan at http://tw.18dao. net/%E6%BC%A2%E8%AA% 9E%E8%A9%9E%E5%85%B8/%E5%86%A4.

37 AN: The Contemporary Chinese Dictionary, Beijing, 2002, entry for yuan (as in yuanchou).

38 AN: For one of many images, see Howard French, “In China, Fight Over Development Creates a Star,” The New York Times, 26 March 2007, http://www.nytimes. com/2007/03/26/world/asia/26cnd-china.html?_r=1&hp&oref=slogin.

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by the state, and that if the institutions of the state are too unreceptive, this activism may spill out into new spaces.

Art work and commercial products, too, have been used to express a general attitude of protest, and increasingly such protest is explicitly political and connected to citizens’ appeals to rights; yet it takes place outside the legal institutions that have rejected it. The subversive character of these new forms of expression is as unmistakable as it is subtle and diffuse. Examples range from the creation of new Chinese characters to comic figures and symbols of politically critical content.

The creation of a character pronounced diang, for instance, a fusion of the three “real” Chinese characters for dang zhong yang (Party Central Committee), according to blogger He Caitou represents “The ultimate, sacred, absolutely correct, cannot be questioned; you get the shit beaten out of you but cannot say a word.”39 Character creations such as these are complemented by cartoon figures and symbols, the two most prominent recent examples of which are the grass-mud horse and the river crab, figures around which a complex, subversive mythology has been created by an unknown number of contributing netizens. The grassmud horse owes its creation to the fact that the pronunciation of its name in Chinese sounds similar to that of a widely used obscenity. Along with many other obscene and “politically sensitive” terms, this particular expression had become a target of Internet censorship, and the characters for “grass-mudhorse” were therefore used to circumvent censorship of the obscenity. Similarly, the word “harmony” had long been replaced by the similar-sounding word for “river crab,” because “harmony,” too, had been censored on the Internet, initially reflecting the loss of meaning consequent upon its absurdly wide application, as well as the state’s fear of criticism and ridicule.40 In a further step, the grassmud horse and the river crab were combined and drawn as cartoon figures or represented by photographs of alpacas and real river crabs. A narrative soon AN: Hecaitou, “Wangyou banbu yipi xin Hanzi” (Netizens publish a new set of Chinese characters), 31 August 2009, http://www.hecaitou.com/blogs/hecaitou/archives/134100. aspx. For a translation see China Digital Times, “Satire: New Chinese Characters Created

By Netizens,” 31 August 2009, http:// chinadigitaltimes.net/2009/08/satire-new-chinesecharacters-created-by-netizens/.

40 AN: Jeremy Paltiel, “Balance vs. Harmony: Interpreting China’s Illiberal Internationalism under Hu Jintao,” paper presented at the annual meeting of the ISA’s 49th Annual Convention: Bridging Multiple Divides, San Francisco, CA, 26 March 2008, http://www.allacademic. com/meta/p_mla_apa _research_citation/2/5/1/0/8/p251084_index.html.

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evolved, the principal theme of which is that a flock of “obscenity” grass-mud horses are fighting an army of “harmony” river crabs – threatening enemies – for survival.41 As of today, the grass-mud horse (resembling an alpaca) is on sale as a cuddly toy from a factory in Guangzhou, and traditional ink-brush paintings as well as calligraphies have been produced to tell and celebrate its story. A prominent intellectual, Cui Weiping, published an essay entitled “I am a GrassMud Horse, Motherland”42 well-known artist and blogger Ai Weiwei recently published a short blog piece entitled “Grass-Mud Horse, Motherland,”43 and numerous songs of the grass-mud horse have been circulated online.44 Lastly, there has been a direct involvement of artists and intellectuals in human rights activism in ways that bring their unique forms of expression to bear.

An example is the artist Ai Weiwei. His campaign to publish the names of the victims of the March 2003 Sichuan earthquake is clearly a form of protest against a concrete instance of perceived government injustice, as the underlying complaint about the Sichuan earthquake is that a disproportionately high number of children were killed due to shoddily built schools. But the campaign has from the outset been disassociated from efforts to take the government to court. It “entered” an institutionalised judicial procedure only when Ai’s coworker Tan Zuoren was charged with a crime and convicted.

“Subversive” communications can be deleted on a webpage or – in the case of physical objects such as a T-shirt – can be taken away or destroyed.45 Activities challenging the state can be, and increasingly are, labelled and prosecuted as “subversion.” In contrast to a claim made in court, however, subversive communications cannot simply be rejected by the state. They are thus both weaker and stronger than the claim asserted in court: weaker, because there is no prospect of institutional redress, but stronger because no official decision can end them. Like the image of the Chongqing nail house, they have the

AN: See just one example of grass-mud horse art on the website of the Daihua Art Space, http://blog.artintern.net/blogs/articleinfo/daihua/40341.

42 AN: Hecaitou, “Cui Weiping: Wo shi yizhi caonima” (Cui Weiping: I am a Grass-Mud Horse), http://www.hecaitou.net/?p=4723.

43 See the accompanying video produced by Ai Weiwei at http://sun-zoo.com/ chinageeks/2009/10/08/ai-weiwei-fck-your-mother-motherland/.

44 See for instance http://kisshi.com/2009/02/05/cao-ni-ma-ge/.

45 “Rights lawyer held for four hours over T-shirt, Police destroy garment with political slogans,” South China Morning Post, 12 October 2009, http://www.scmp.com/portal/site/ SCMP/menuitem. 2af62ecb329d3d7733492d9253a0a0a0/?vgnextoid=c3a5a5930844421 0VgnVCM100000360a0a0aRCRD&ss=China&s=News.

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potential to linger in the minds of those who have seen them even just once, and their appeal may be no less forceful than the popular appeal of a widely reported human rights case fought successfully in court.

Conclusion If the dilution and hostility to rights described in this paper has had the effect of “dislocating” principled and rights-based opposition to the party-state, driving it out of institutions into art, to the Internet and into the streets, this has had a complicated double effect. On the one hand, further legal victories such as the much celebrated Sun Zhigang case have become less likely, even though rights defenders still attract attention by winning court cases. On the other hand, however, civil rights causes have been increasingly absorbed into a growing practice of political, anti-establishment and “subversive” forms of expression. The diffuse and elusive nature of such expression has made it even more difficult to gauge the momentum of the human rights movement that now contributes to its flourishing. As the state keeps retreating further into the mysticism of slogans such as the “Three Supremes,” this momentum may be expected to grow.

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Chapter Five

The Experience of Lawyers Across the Strait

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A Comparison of the Professional Safety of Lawyers in Taiwan and China Wei Chien-Feng1

Introduction Cross-strait exchanges are growing ever warmer; this is evidenced not only by a thaw in political relations between Taiwan and China, a growth in crossstrait investment and tourism in both directions and increasing academic and cultural exchanges, but also by increasing exchanges of professional experience and views between lawyers on both sides of the Taiwan Strait. Barriers remain only because lawyers on both sides are insufficiently familiar with the each others’ political and social environment, given that the majority of lawyers have not practiced their profession across the Strait. In this article I would like to introduce Chinese lawyers to the professional environment for lawyers in Taiwan, in hopes that this experience from another Chinese society can contribute to China’s rise and peaceful evolution. In order to more efficiently present this information in the limited space available, this article is divided into the following sections: 1.

2.

Factors influencing the professional environment of Taiwan’s lawyers.

This section provides a macroscopic analysis based on my personal observations and experience; The professional safety of Taiwan’s lawyers. This is based on the most common indicators for lawyers the world over – criminal defence, class action lawsuits and circumstances under which the rights of individual lawyers are violated – as well as elaborating on the specific situation of Taiwan’s lawyers;

AN: A practicing lawyer and member of the Taipei Bar Association, the author received his PHD from Taiwan’s National Chengchi University, and is an Associate Professor of Law at Soochow University.

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3.

4.

The difficulties Chinese lawyers face in practicing their profession. This analyses the overall environment, criminal defence and the situation of rights defence lawyers, which has captured worldwide attention in recent years, to characterise the practice of law in China; The conclusion, which compares the professional safety of lawyers in Taiwan and China and suggests possible future directions on both sides of the Strait.

Factors influencing the professional environment of Taiwan’s lawyers Taiwan is considered to be among the newly democratised countries enjoying the most flourishing reform movements in their legal professions.2 The special feature of this reform is that it encompasses not only the overall system of legal practice and efforts to protect the professional safety of lawyers, but also constitutional reform and the promotion of an independent judiciary, assessment of judges and legal aid.3 The far-ranging and profound social reforms promoted by Taiwan’s legal professionals are matched in few places elsewhere in the world. My observation and experience suggest three main reasons why Taiwan’s legal professionals have been able to exert so much influence toward the afore-mentioned reforms over the last two decades: 1) The lifting of Taiwan’s 38 years of martial law in July 1987 caused a great release of social energy; 2) the relaxing of law school entrance exam quotas in 1989 allowed for a rapid increase in the number of lawyers in Taiwan, which facilitated organisational reforms within the Taiwan Bar Association and consolidated the power of lawyers as a group; 3) the reform movement within the legal profession spearheaded by lawyer Lin Min-sheng in 1990, which led to a reorganisation of the Taipei Bar Association and the Taiwan Bar Association, and also promoted judicial reform and reform to the practice of law.

1) The lifting of martial law On 19 May 1949, the commander-in-chief of the Taiwan Garrison Command imposed martial law. Half a year later, the Nationalist government fled mainland China for Taiwan and continued the implementation of martial law.

AN: Stephen Ellmann, “Struggle and Legitimation,” Law & Social Inquiry, 20(2) (1995), p. 341.

3 AN: See the author’s “Lawyers and judicial reform,” Symposium on lawyers and judicial reform in mainland China, Taiwan and Hong Kong, organised jointly by the Hong Kong University Faculty of Law and China Human Rights Lawyers Concern Group, 18 March 2009, pp. 1-8.

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164 A Sword and a Shield: China’s Human Rights Lawyers

On 15 July 1987, the Taiwan government repealed the martial law that had continued in Taiwan for 38 years.4 During the martial law era, the people’s basic rights had been severely limited, and the Nationalist government’s aversion to social organisations with anti-government tendencies led to stronger controls on the bar associations.5 In the 1960s, the bar associations were under the supervision of the Party secretary, but exercised none of the real functions of a bar association, and right up until 1990 fell under the governing authority of the Ministry of the Interior. The objectives and undertakings of the bar associations were directed and supervised by judicial administrative departments and local chief public prosecutors, and their Articles of Association had to be formulated according to the measures specified by judicial administrative bodies. They had no autonomous status and no commitment to the promotion of legal education or implementation of human rights safeguards (in the last years of martial law, there was a gradual increase in efforts to safeguard human rights), but were routinely involved in endorsing the leadership and the government.6 In July 1987, Taiwan lifted martial law and restored constitutional government, and Taiwanese society experienced considerable liberalisation in both the political and economic spheres. Safeguards for the people’s basic rights of assembly, expression and publication and to organise political parties were gradually put in place, and social movements relating to the environment, women’s rights, labour rights and educational reform sprang up, with the number of non-profit organisations quadrupling in the 10 years following the end of martial law.7 In terms of Taiwan’s legal professionals, many lawyers were involved in or led various kinds of social and political movements. For example, Liu Chih-Peng became involved in the labour movement, Lee ShenYi was engaged in the consumer rights movement, Chen Shui-Bian, Su TsengChang and Frank Hsieh Chang-Ting became involved in opposition politics, and in 1990 Lin Min-Sheng began leading the reform movement for the legal profession, launching a series of reforms targeting the bar associations and

AN: Shiao-Feng Lee, 100 Major Events in Taiwan’s History (vol. 2), Taipei, TIPI (Taiwan Interminds Publishing Inc.), October 1999, pp. 39, 131.

5 AN: Dung-Sheng Chen, “Taiwan’s Social Changes in the Patterns of Social Solidarity in the 20th Century,” in Taiwan in the Twentieth Century: A Retrospective View, ed. Edmonds & Goldstein, Cambridge, Cambridge University Press, 2001, p. 72.

6 AN: The History of the Taipei Bar Association in the Twentieth Century, Taipei Bar Association, 24 May 2005, pp. 138-39, 220, 230-36.

7 AN: Ijiri Hidenori (Qiu Rongjin tr.), The Taiwan Experience and Post-Cold War Asia, Taipei, National Chengchi University Institute of International Relations, June 1995, pp. 1920; Chen, op. cit., pp. 74-75.

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amendments to the Law of Lawyers8 (to be described in greater detail below).

This can only be attributed to the release of social forces after the lifting of martial law.

2) Relaxing of law school entrance exam quotas Prior to the lifting of martial law in July 1987, the Nationalist government had no desire for an autonomous legal profession, and its chief means of control was limiting the number of people allowed to take law school exams. From 1950 to 1988, for example, only a few thousand people took bar exams each year, while the number admitted was at most 5 percent and as low as 0.5 percent of those taking the exam. In contrast to this narrow entryway was a wide back portal through which judges, public prosecutors, university professors and military court officials could obtain credentials to practice law. The liberalisation of examinations for military court officials in 1970 came under particular criticism, and up until 1990 the number of people who became qualified to practice law through this inspection and examination system exceeded those who became lawyers by graduating from law school (in those years, the former made up 56.3 percent of the membership of the Taipei Bar Association, compared with 43.7 percent from the latter group), and military court officials became an important power base in the supervisory boards of the bar associations. The proportion of Taiwan’s population represented by lawyers was also relatively low; even as late as 1991, there were only 2,254 lawyers in all of Taiwan, or a proportion of 1:9000 in a total population of 20.5 million people, compared with the United States and Germany, where lawyers comprised 1:500 of the total population. Such a low proportion is not conducive to the development of a country’s rule of law.9 During the martial law era, members of the opposition parties in the Legislative Yuan and the publications of those parties repeatedly called for a relaxing of bar exam quotas and a reduction in the number of lawyers qualified through inspection and examination, in conformance with the norms of democratic countries. The Nationalist government finally increased the bar exam quotas for the first time in 1989, admitting 288 out of 2,698 students taking the bar exam, or 14 percent. From then onward, the quota remained above 10 percent, while admissions to the profession through inspection and examination were AN: Jane Kaufman Winn and Tang-chic Yeh, “Advocating Democracy: The Role of Lawyers in Taiwan’s Political Transformation,” Law & Social Inquiry, 20(2), 1995, pp. 581, 593, 595.

9 AN: History of the Taipei Bar Association, op. cit., pp. 177-81, 203-8; Winn & Yeh, op. cit., pp. 571-72.

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166 A Sword and a Shield: China’s Human Rights Lawyers

reduced. Once bar exam quotas were relaxed, the number of lawyers in Taiwan increased dramatically (as of the end of June 2009, there were 6,051 lawyers in Taiwan, among whom 4,187 were members of the Taipei Bar Association), while lawyers originating from liberal arts colleges (as opposed to military law academies) became the mainstream (for example, in 1995, 1,516 members of the Taipei Bar Association graduated from liberal arts colleges, and only 382 from other kinds of institutions). This gave lawyers from liberal arts colleges a better chance of being elected to the leadership of the bar associations.10

3) Reform of the legal profession During the martial law era, lawyers were not respected by judges. This was not only reflected in the lower position of the lawyer’s seat in court, but also in the requirement that a lawyer had to stand while presenting his case, giving him the appearance of a supplicant in the eyes of the judge. It was only after 1990 that legal profession reforms put in place regular assessments for judges, and the status of lawyers was raised.11 The legal profession reform movement launched

by Lin Min-Sheng in 1990 was undeniably a glorious historical moment in the struggle of Taiwan’s lawyers for autonomy and engagement in constitutional reform, but it clearly benefited from advantageous social conditions following the lifting of martial law and the liberalisation of bar exam quotas.

Before this, the Taiwan Bar Association was like Taiwan’s parliament in that it preserved its claims on its so-called legally constituted authority to represent all of China by never holding an election in 40 years. When one of its veteran luminaries passed away, a by-election would be held, thereby keeping the Taiwan Bar Association under the control of law firms affiliated with the Nationalist government. And as stated earlier, the Taipei Bar Association was also long led by lawyers who entered the profession through examination and inspection (among whom members who entered the profession through the military courts held important positions of the board of advisors). With the lifting of martial law and the increase in bar admission quotas, the number of lawyers graduating from liberal arts colleges began approaching half of the total, and they were able to take over leadership of the Taipei Bar Association, which made up 75 percent of the total membership of the Taiwan Bar Association.

These new leaders devoted themselves to pursuing the goal of professionalism through autonomy and constitutional reform, which became the universal aim of all lawyers graduating from liberal arts colleges. In 1990, with the support of other young lawyers such as James Ku Chia-Chun, Huang Juei-Min and AN: Ibid., pp. 187; Winn & Yeh, ibid., pp. 573.

AN: Ibid., pp. 297, 339.

10 11

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Wellington Koo Li-Hsiung, Lin Min-Sheng established the Cultural Union, an electoral team for legal professionals centring on graduates of the liberal arts law schools. During the Taipei Bar Association elections that year, the candidates fielded by the Cultural Union won all of the seats on the association’s board of directors and board of supervisors. In 1993, the Cultural Union led

by Lin Min-Sheng and members of its coalition won the majority of seats on the Taiwan Bar Association’s board of directors and board of supervisors, and effectively launched the reform of Taiwan’s legal profession that has taken place over the past 10 years.12 During the reform movement, Taiwan’s legal professionals established an autonomous system for lawyers. Compared with the relevant provisions in the old Law of Lawyers (formally entitled the Attorney Regulation Act), the new 1992 Law of Lawyers contained the following important new provisions:13 1.

Article 1 (1) of the new Law of Lawyers clearly states: “Attorneys take upon themselves the goals of promoting social justice, protecting human rights and contributing to democratic government and the rule of law.”

Article 1 (2) states: “Guided by these professional goals, with the spirit of self regulation and self governance attorneys should strive to faithfully execute their professional responsibilities, contribute to the preservation of social order, and work towards the improvement of the legal system.”

As the former chairman of the board of the Taipei Bar Association, Kao Ruey-Jeng, pointed out, this was the first time that Taiwan’s law had declared the mission of lawyers to include the sacred mission of “contributing to democratic government and rule of law” as well as the more traditional protection of human rights and promotion of social justice.

2.

The old Law of Lawyers did not include stipulations on professional ethical standards. Article 15 (2) of the new law stipulates that lawyers’ ethical rules will by set by the Taiwan Bar Association, and after being passed by a majority at the association’s Annual General Meeting, will be forwarded to the Ministry of Justice for “filing.”

3.

Regarding meetings of the bar associations, Article 16 (1) of the old law stipulated that meetings must be reported to the local civil administration

AN: Ibid., p. 242; Winn & Yeh, op. cit., p. 581.

TN: The translation of this and other laws of Taiwan follows apparently official English translations provided at Lawbank, http://db.lawbank.com.tw.

12 13

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168 A Sword and a Shield: China’s Human Rights Lawyers

authorities so they could have an official in attendance to “supervise.”

Article 17 of the new law states that it is only necessary to “give notice.”

Regarding the minutes of meetings of the bar associations, the old law’s Article 16 (2) stipulated that local district courts and public prosecutors offices could send officers to “consult” the minutes. Article 17 (2) of the new law removed that stipulation.

4.

Regarding proposals or resolutions of a bar association, Article 15 of the old law allowed for only three items over which proposals or resolutions could be made. The new law repealed that stipulation as a serious infringement of the constitutionally protected right to free expression.

5.

Regarding the disciplining of lawyers, the old law stipulated that Attorney Disciplinary Committees were to be made up of judges from the courts of justice. In the new law, Article 41 stipulates, “Attorney Disciplinary Committees shall be composed of three High Court judges, one High Court prosecutor from the High Court Prosecutor’s Office in parallel with said High Court, and five attorneys. Such Attorney Disciplinary Committees shall elect one of their members to act as the Chief Commissioner.” Although more than half of the members of a disciplinary committee are lawyers, it still doesn’t meet the full criteria of professional autonomy for lawyers, and for that reason the Taiwan Bar Association continues to push for further amendments in hopes that disciplinary committees will eventually be composed entirely of lawyers.

In accordance with the aforementioned goals and responsibilities of lawyers, Taiwan’s legal professionals have engaged in a wide range of legislative research and revision, including the Code of Civil Procedure, the Code of Criminal Procedure, the Law on Non-litigious Matters, the Notary Law, the Civil Code and so on. The Taipei Bar Association has also issued statements regarding these and many other major legal and constitutional safeguards and reforms, which have been published in Lawyer Newsletter (Lushi tongxun) and its successor publication, Lawyer Magazine.14 These law revision campaigns and statements spurred the Taiwan government to undertake major reforms to its public policy (such as an independent judicial budget and the convening of a Judicial Reform Conference), and gave professional organisations an opportunity to exercise the functions of monitoring and checks and balances and to energetically AN: History of the Taipei Bar Association, op. cit., pp. 136-37, 147-48, 270-71, 276-80. See also the author’s “The law reform movement of Taiwan’s lawyers at the crossroads,” Lawyer Magazine, No. 246 (March 2000), pp. 16-17.

14

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perform the role of the opposition in bringing about social reform. This is the kind of civil society on which countries with democracy and rule of law are built. This implementation of the goals and responsibilities of lawyers as laid down in Article 1 of the Law of Lawyers is of epochal significance.

The professional safety of Taiwan’s lawyers The professional scope and safety of lawyers is directly related to a country’s development of rule of law and human rights safeguards. If lawyers are unreasonably restricted in practicing their profession, even to the point of threats to their personal safety, how can the human rights of the average citizen be safeguarded? Taiwan’s legal professionals have for many years expressed concern over the scope of their profession and the protection of their safety.

In terms of the right to criminal defence, following the imposition of martial law, the 1945 Code of Criminal Procedure merely stated in Article 37 (1), “The defendant is entitled to appoint defence counsel at any time after a charge is brought.” The 1967 Code of Criminal Procedure, apart from preserving the above stipulation (Article 27 (1)) also clearly stated that defence counsel could review files and evidence and could make copies or take photographs of this evidence (Article 33), and that defence counsel could meet with the defendant in detention, and also exchange written communications with him.

Restrictions were also put into place (Article 34), however, in consideration of the possibility that evidence could be destroyed, altered or manufactured, or that there could be collusion with accomplices or witnesses. Since the Taipei Bar Association believed that a defendant should be allowed to appoint defence counsel already during the investigation stage in accordance with the spirit of human rights safeguards, it requested in 1976 that this be entered into law, and submitted a proposal and petition on this matter to the Legislative and Control Yuans. In 1981, the Taipei Bar Association established an ad-hoc committee devoted to this matter, and organised a symposium along with the China Times newspaper. Ultimately, under the influence of the Wang Ying-Hsien case,15 Article 27 of the Code of Criminal Procedure was amended in 1982 to

TN: Wang Ying-Hsien, a mainland taxi driver, died in police custody after confessing under torture to taking part in a bank robbery in Taipei in 1982. He was subsequently exonerated by another witness. See Denny Roy, Taiwan: A Political History, Cornell University Press, 2003; Lin Feng-Jeng, “Judicial reform is needed to stop abuses,” Taipei Times, 26 July 2007, http:// www.taipeitimes.com/News/editorials/archives/2007 /07/26/2003371355; Sandy Yeh, “Deadlines are not the best way to tackle crime,” Taipei Times, 26 November 2002, http:// www.taipeitimes.com/News/editorials/archives/2002/11/26/184832.

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allow a criminal suspect to appoint defence counsel during the investigation stage of a case.16 The lifting of martial law in 1987 naturally led to progress in defence counsel exercising their rights to meet with a defendant and to examine files, carry out inquiries and collect evidence, yet problems remained. Although a lawyer could meet with a defendant after providing a photocopy of his letter of appointment to the detention centre, according to Article 25 of the Detention Act, these meetings could only last 30 minutes at a time, and according to Article 72 (2) of the detailed rules for enforcement of this statute, during the meeting a detention centre official would be present to closely monitor the meeting, which could take place a maximum of once per day. In actual practice, when a lawyer met with a defendant in custody, a detention centre official’s monitoring included watching, listening and taking notes, which affected the lawyer’s right to conduct a criminal defence. In recent years, the Taiwan Bar Association has frequently criticised this unreasonable restriction on a lawyer’s right to consult with his client, and has demanded improvements. On 23 January 2009, Interpretation No. 654 by the Grand Justice of the Judicial Yuan took the position that surveillance and audio recording by detention centre officials during a lawyer’s visit to a detainee violated the right of the defendant to a defence, and was inconsistent with the provisions safeguarding the right to litigate in Article 16 of the Constitution.17 Since then, detention centre officials have not been allowed to carry out on-site monitoring or audio-recording of meetings between lawyers and detainees.

In respect of a lawyer’s right to examine files, after a charge is filed, a lawyer has no trouble copying or photographing the relevant prosecution materials.

But what has raised some controversy in recent years is the ability of lawyers to make copies of CD-ROMs of the questioning of defendants and witnesses, and whether these materials can be used outside of court. On this matter, the views of scholars and legal professionals differ.

Regarding the right to investigate and collect evidence, according to Article 163 of the Code of Criminal Procedure, a lawyer can submit to the prosecutor’s office and the court a formal request to investigate evidence. In the majority AN: See the author’s “The Past, Present and Future of Taiwan’s Legal Profession,” Symposium on the human rights of lawyers on both sides of the Strait, organised by the Taipei Bar Association, 10 January 2009, pp. 4-5; History of the Taipei Bar Association, op. cit., pp.

233-34.

17 TN: An English translation of this Interpretation is provided at http://www.judicial.gov. tw/ constitutionalcourt/EN/p03_01.asp?expno=654.

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of circumstances the prosecutor’s office and the court will on that basis arrange a consultation with the relevant government body or non-government organisation, and will subpoena the relevant defendant or witness. If the prosecutor’s office does not proceed with the investigation, however, the lawyer can only push for it through an additional legal procedure, and by law if the court feels the investigation is unnecessary, it can reject the request. A lawyer can then only submit an appeal or request a transfer to the Supreme Court’s prosecution unit on the basis that the court of first instance did not carry out a proper investigation of the evidence. In actual practice, a lawyer in his capacity as a legal representative can carry out an investigation at a government body or non-governmental organisation, but that body or organisation will not necessarily respond. When a lawyer carries out inquiries regarding a defendant, witness or evidence, if there are grey areas, the judicial organs may suspect the lawyer of collusion with the defendant or witnesses. For that reason, the right of Taiwan’s lawyers to investigate and collect evidence remains ambiguous and unclear, and the Taiwan Bar Association is currently studying and discussing how the relevant law might be amended.18 In terms of legal representation for group incidents, following the Kaohsiung Incident in 1979,19 a number of lawyers rose to prominence as a result of representing such cases or petitions. Among the defence counsel in the military court trial at that time, Chen Shui-Bian was subsequently elected President of Taiwan in 2000 and was re-elected in 2004, and Frank Hsieh and Su TsengChang have both served as head of the Executive Yuan.20 Since the lifting of martial law there have been a number of notable cases, such as the United Daily

AN: See the author’s “Lawyers and Legal Reform,” op. cit., pp. 11-12.

TN: Also known as the Formosa Incident after an opposition magazine of that name launched and forced to stop publication that same year, the incident was a protest by opposition activists on 10 December 1979, which devolved into a violent clash with government agents and local police. The incident culminated in the arrest of almost all opposition leaders, who were tried in three groups, with the most prominent “Kaohsiung Eight” tried in military court.

Monique Chu, “A look back on the road to democracy,” Taipei Times, 9 December 1999, http://www.taipeitimes.com/News/archives/1999/12/09/0000014181; Shelley Rigger, From Opposition to Power: Taiwan’s Democratic Progressive Party, Lynn Reiner Publisher, 2001.

20 AN: As a result of participating in the most important opposition party protest during the martial law era, the Kaohsiung Incident, the lawyers Yao Chia-Wen and Lin Yi-Hsiung were each sentenced to 12 years in prison, and the Taipei Bar Association penalised them by announcing suspension of their membership. See Lee Hsiao-Feng, op. cit., p. 114; History of the Taipei Bar Association, op. cit., p. 235.

18 19

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newspaper recall case (1991),21 several major labour disputes in the 1990s, the Taiwan Railway Labour Union strike (September 2003),22 the Lien-Soong vs Bian-Lu election nullification lawsuit (2004)23 and the “Red-shirt Army” protests (2007),24 in which there has been disagreement within society over lawyers’ handling of the cases, and yet the lawyers have suffered no threat to their physical safety.25 All the same, in actual practice lawyers sometimes encounter difficulties or lack of courtesy from the police or the courts while exercising their professional duties. The Taiwan Bar Association in June 2006 conducted symposia on “Lawyers and Human Rights” in the central, northern and southern regions of Taiwan, and called for implementation of the 1990 UN “Basic Principles on the Role of Lawyers”26 in order to safeguard the rights of lawyers to practice their profession.

In terms of cases in which the right of lawyers to practice their profession has been violated, Taiwan’s legal professionals have voiced their support in the following cases: Chao Tak-Seng, 9 January 1996: While handling a debt dispute, Chao incurred the displeasure of some organised crime figures, and was attacked in TN: A boycott was launched against United Daily on 23 November 1992 after the newspaper published an article quoting a Chinese official as stating that the PRC government would use “all means” to prevent a move toward independence by Taiwan, and then-President Lee Teng-Hui accused an unnamed newspaper of misquoting the official to intimidate Taiwan’s people. Organisers of the boycott accused United Daily of harming Taiwan’s stability and acting as a mouthpiece of Communist China. See Patricia R.S. Batto, “The consequences of democratization on Taiwan’s daily press,” China Perspectives, January-February 2004, http://chinaperspectives.revues.org/document791.html.

22 TN: See Hung-Fu Hsieh, “Railway union threatens to stage one-day strike,” Taiwan News, 13 June 2003, http://www.hartford-hwp.com/archives/55/605.html.

23 TN: Candidates Lien Chan and James Soong contested the results of the 2004 election that resulted in the re-election of Chen Shui-Bian and Annette Lu as Taiwan’s President and Vice-President. See “Lien to appeal high court ruling,” The China Post, 5 November 2004, http://www.chinapost.com.tw/taiwan/ 2004/11/05/54133/Lien-to.htm.

24 TN: Protesters led by Shih Ming-Teh wore red shirts at rallies against corruption and calling for then-President Chen Shui-Bian to be deposed. See http://knol.google.com/k/ timothy/red-shirts/1b9o7osi6d2nm /2#.

25 AN: The author personally participated in all of these movements with the exception of the 2004 election dispute. In several major labour disputes in the 1990s, and in the 2007 “Redshirt Army” protest case, I was one of the lead defence counsel.

26 TN: The Basic Principles can be accessed in English at http://www2.ohchr.org/english/ law/ lawyers.htm.

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his law office and murdered. On 11 January, the Taipei Bar Association issued a statement requesting that the police carry out a thorough investigation into the truth of the matter.

Wellington Koo, Liu Feng-Chao, 6 January 1996: While carrying out his professional duties at the Bureau of Investigation, Koo was forcibly removed from the premises by the bureau’s investigators. The Taipei Bar Association accompanied both members in holding a press conference, and on 8 January, accompanied by representatives of the Legislation Committee, paid a visit to the Ministry of Justice and delivered a statement.

Lien Yao-Lin, September 1999: Lien was set upon by six thugs in his law office and beaten with wooden cudgels. Apart from offering condolences to this member, the Taipei Bar Association contacted the relevant bodies to swiftly solve the case.

On 18 February 2001, two lawyers were harassed by gang members while performing their professional duties in the Taipei area. Thugs also opened fire on the lawyers’ law office and burst in, assaulting lawyers inside. On 28 February the Taipei Bar Association issued a statement regarding this incident and called on the police to give it due attention.

Tseng Wen-Chi, 22 May 2008: While accompanying a defendant at an arbitration hearing in Taipei and following the taking of a statement, when Tseng moved forward to look at the notes, the investigator lashed out at him and scratched his arm and neck. On 23 June, the Taiwan Bar Association, the Taipei Bar Association and the Judicial Reform Foundation issued a statement demanding that the Ministry of Justice dismiss and investigate the lawless and malfeasant officer and address shortcomings in the existing system.27 Cheng Wen-Long, 1 December 2008: Cheng went to the Taipei Detention Centre to visit his client, former President Chen Shui-Bian, who had been detained on corruption charges. On each side of him sat officers from the prosecutor’s office, who kept giving warnings while the two of them were talking. On 4 December, the Taiwan Bar Association and the Judicial Reform Foundation held a press conference criticising the monitoring of a lawyer while meeting with a defendant in the detention centre, as well as preventing a lawyer from meeting with the defendant, recording the contents of the meeting by 27 See the author’s Lawyers and Judicial Reform, op. cit., pp. 12-13; Taiwan Lawyer, Vo. 12, No. 10 (October 2008), p. 123.

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pen or by audio recording, and sending an officer from the prosecutor’s office to sit in on the entire interview, saying that these actions violated international human rights norms.28

The difficulties faced by Chinese lawyers in practicing their profession In 1980, Deng Xiaoping re-emerged as China’s de facto leader, and because he was well aware that a stable legal system and legal profession were important factors to economic development, he began to gradually resurrect China’s legal profession in the private and business sectors. In 1996, China used its Law on Lawyers to grant lawyers greater autonomy. In contrast with the ability of lawyers in democratic countries to practice their profession freely, however, China’s lawyers must still focus on promoting the socialist system, protecting state secrets and ensuring a correct political ideology that places priority on the interests of society, and must establish a Communist Party organisation in every law firm with three or more lawyers. Although China currently has an All China Lawyers Association and local lawyers’ associations, these are dependent on the central government’s Ministry of Justice and its local government organs. Not only are the leaders of many lawyers’ associations serving or retired judicial officials on the government payroll, but the Ministry of Justice remains responsible for lawyer examinations, for assessing the professional credentials of lawyers every year and the licensing of all law firms, and for supervising all matters relating to lawyers’ responsibilities and discipline. This diverges from the professional autonomy enjoyed by lawyers’ associations in democratic countries.29 As China has experienced an economic rise and increasing stature in the international community in recent years, the Chinese government in 1998 signed the International Convention on Civil and Political Rights; yet it remains essentially a single-party autocracy lacking an independent judiciary, and continues to severely limit the basic rights that citizens are granted under China’s Constitution.30 The Chinese government has only limited tolerance AN: Judicial Reform, No. 69 (December 2008), p. 74.

AN: See the author’s “The difficulties of China’s legal professionals,” Lawyer Magazine, No. 289 ( January 2003), pp. 2-3. Randall Peerenboom, China’s Long March toward Rule of Law, Cambridge, Cambridge University Press, 2001, pp. 348-49, 521.

30 AN: Shauna Emmons, “Freedom of Speech in China: A Possibility or a Prohibition?”, Loyola Los Angeles International and Comparative Law Review, 23, 2001, pp. 258-59, 266-276; Benjamin L. Liebman, “China’s Courts: Restricted Reform,” The China Quarterly, 19, 2001, 28 29

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for the challenges to the system and the so-called rights defence activities in which legal professionals engage in the name of rule of law, and tends to handle these situations through restrictions and passive response. This has become a hindrance to the professional safety of China’s lawyers.

The chief difficulties encountered by China’s legal profession are in criminal defence, the main three being the difficulty lawyers have in meeting with their clients, accessing files and investigating and collecting evidence.31 In terms of the right of a lawyer to meet with his client, lawyers are often denied an opportunity to meet with criminal suspects on the grounds that the case involves state secrets, or for no reason at all. Even if a lawyer gains access to a criminal suspect, he is put under heavy restrictions, not only in having the meeting directly monitored by the authorities in charge, but also in the inadequate number and brevity of the meetings allowed. Lawyers often find it difficult to obtain enough information during these meetings to provide an adequate defence to a criminal suspect.32 In terms of lawyers’ access to files, the procuratorial organs only offer indictments, a list of evidence and “main evidence” that is not beneficial to the defendant. This “main evidence” refers to evidence testifying to the defendant’s commission of a crime, and does not include evidence that indicates a defendant’s innocence or lesser culpability.

Under these conditions of unequal power of inspection, it is very difficult for

p. 620. As opposed to the Preamble to the PRC Constitution, which still upholds one-party autocracy, beginning in 1990 other Communist regimes the world over began moving toward democratisation, and repealed clauses in their Constitutions referring to political leadership solely under the Communist Party, for example, Hungary (October 1989), Czechoslovakia (November 1989), Poland and Rumania (December 1989), Yugoslavia and Bulgaria (March 1990), the Soviet Union (February 1990), Albania (December 1990). They granted legal status to other political parties, gradually implemented press freedom and religious freedom, recognised the autonomy of labour unions and the right to strike, and established independent judicial systems and the human rights organs associated with them (such as constitutional courts and ombudsmen). See the author’s “Cross-strait talks cannot ignore human rights,” Apple Daily, 22 October 2005, A 24; Rett R. Ludwikowski, “Constitution Making in the Countries of Former Soviet Dominance: Current Development,” Georgia Journal of International and Comparative Law, 23(2), 1993, pp. 192, 212, 226; Michael Mcfaul, Russia’s Unfinished Revolution, Ithaca and London, Cornell University Press, 2001, p. 56.

31 AN: Chen Yin-Ming, “China’s lawyers call out for their own rights,” Zhongguo lüshi (China Lawyer), December 2005, p. 61; See the author’s “The professional hardships of China’s legal professionals,” Taiwan Bar Journal, Vol. 13, No. 3 (March 2009), p. 57.

32 AN: Ping Yu, “Glittery Promise vs. Dismal Reality: The Role of Criminal Lawyers in the People’s Republic of China after the 1996 Revision of the Criminal Procedure Law,” Vanderbilt Journal of Transnational Law, 35 (2002), p. 833.

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lawyers to provide an adequate defence for their clients.33 In terms of a lawyer’s right to investigate and gather evidence, Article 37 (1) of China’s Criminal Procedure Law has a stipulation to that effect, but lawyers must obtain the advance “consent” of the relevant unit or individual, which means that this right exists in name only. Coupled with Article 306 of the PRC Criminal Law regarding perjury by lawyers, China’s lawyers face enormous risk in the investigation and collection of evidence.34 China’s legal profession, scholars and legal professionals devoted 10 years of hard effort to addressing these three difficulties, and finally on 28 October 2007, the Standing Committee of the National People’s Congress passed amendments to the Law on Lawyers, which came into effect on 1 June 2008. Given that only the Law on Lawyers was amended, and not the relevant provisions in the Criminal Procedure Law, there are real concerns that the judicial organs will do their utmost to avoid the application of the amended Law on Lawyers in their handling of criminal cases.35 The greatest threat to China’s lawyers in practicing their profession lies in the stipulation on perjury in Article 306 of the Criminal Code, which states: “During the course of criminal procedure, any defender or law agent who destroys or falsifies evidence, assists parties concerned in destroying or falsifying evidence, or threatens or lures witnesses to contravene facts, change their testimony or make false testimony is to be sentenced to not more than three years of fixed-term imprisonment or criminal detention; and when the circumstances are severe, to not less than three years and not more than seven years of fixed-term imprisonment.” This kind of provision is rarely seen anywhere else in the world, and is excessively abstract: what is meant by “threaten” or “lure”? It provides no concrete standards, and as a result creates space for the judicial organs to use its clauses against lawyers they regards as hostile. The extensive interpretive latitude thus granted to the procuratorates and courts works to the disadvantage of the legal profession, and the result has been that many lawyers have been detained, jailed, prosecuted and sentenced

AN: Chen Yin-Ming, op. cit., p. 62; Zhang Jinlong and Hou Fengmei, “Several suggestions for improving China’s criminal defence system,” China Lawyer, May 2002, p. 45; Li Xuan, “Two major problems of the modern legal profession (Part 1),” Lawyers and the Legal System (Lüshi yu fazhi), No. 166 (October 2002), p. 50; Yu, op. cit., pp. 845-848.

34 AN: Chen Yin-Ming, op. cit., pp. 61-62; Li Xuan, op. cit., p. 50. Yu, op. cit., pp. 848-849.

35 AN: Ye Qing, Tan Zhipeng, “Rights to practice law hindered only by Law on Lawyers,” China Lawyer, June 2008, pp. 29-31.

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on the basis of this stipulation.36 Statistics show that of the many lawyers detained and prosecuted on this basis, upward of 90 percent were subsequently shown to have been victims of injustice – but by then they had already suffered serious injury to body, mind and reputation.37 Given that criminal defence work offers great risk for meagre returns, few Chinese lawyers are willing to take on such cases. In protest against the unlawful detention of lawyers under the provisions on perjury by lawyers, the Lawyers Association of Yueyang City, Hunan Province, in December 1997 passed a resolution to cease work on all criminal cases, and notified its members to that effect on 2 December.38 Another issue related to the professional safety of lawyers that has aroused concern in the international community is the safeguarding of conditions for lawyers. Although China is a one-party dictatorship, it has become very commonplace for lawyers, in the process of practicing their profession, to call on the government to implement constitutionalism and procedural safeguards in order to protect the basic rights of ordinary citizens.39 It is only when Chinese lawyers take on major or sensitive cases that some places require them to submit a request for permission from the relevant authority before agreeing to act as the legal representative. Before appearing in court, lawyers must take part in a coordination meeting called by the Politics and Law Committee between the lawyer, judges, prosecutors and other relevant government departments over how the defence will be conducted, and whether the lawyer will be allowed to enter a plea of not guilty and go through trial proceedings on that basis. This has a serious effect on a lawyer’s ability to practice his profession.40 Rights-defence lawyers have attracted the concern and sympathy of the international community mainly because it is these lawyers who fight to safeguard the people’s basic rights. It could be said that the legal skills of the legal AN: Yu, op. cit., pp. 854-855.

AN: Wen Zhimin, “The dilemma faced by China’s defence lawyers,” China Lawyer, January 2005, p. 73.

38 AN: Zhang Sizhi, “A Letter to the Chairman of the Beijing Lawyers Association,” Lawyers and the Legal System, No. 205, January 2006, pp. 4-5.

39 AN: See the author’s “The difficulties of China’s legal profession,” op. cit., pp. 62-63; Chen Ruihua, “The legal profession and judicial reform (Part 1),” Lawyers and the Legal System, No. 169, 2003, p. 15; Zhao Bingzhi, “Basic problems with human rights safeguards in China’s criminal justice system,” China Lawyer, February 2006, p. 10; Fu Hualing, “When Lawyers are Prosecuted: The Struggle of a Profession in Transition,” Journal of Comparative Law, 2(2), 2007, pp. 103,119.

40 AN: He Weifang, “Several problems in the existence and development of China’s legal profession,” Lawyers and the Legal System, No. 188, August 2004, p. 17.

36 37

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profession build a good, fair and orderly society under rule of law.41 But because up to now China remains a one-party dictatorship where special privileges continue to hold sway, lawyers who attempt to make fairness and justice a reality in this unequal political environment can at any time unintentionally touch on political taboos or land mines, which can lead to the regrettable situation of a lawyer losing his personal freedom or professional qualifications. For example, when Zheng Enchong represented displaced Shanghai householders in 2003, it was essentially a matter of residents resisting the special privileges of a land developer and local officials; but Zheng was unable to file a lawsuit against the developer Zhang Zhengyi, and instead was himself sentenced to three years in prison, and his law license was revoked.42 In 2005, when the lawyer Zhu Jiuhu represented investors in the Shaanxi oil fields in a lawsuit, it was essentially an administrative lawsuit appealing to good faith and the protection of principles.

But in the course of handling this case, Zhu was detained by judicial authorities on charges of assembling a crowd to disrupt social order. This case extended the legal mine field from the criminal domain to the civil and administrative domain, and revealed the serious lack of safeguards enjoyed by Chinese lawyers in practicing their profession.43 In another example, in 2005 Gao Zhisheng represented Falun Gong practitioners who had been interrogated under torture and sexually violated. Setting aside the issue of the political sensitivity of Falun Gong, Gao appealed on behalf of his clients in a petition to President Hu Jintao, calling on the Chinese government to abide by the Universal Declaration of Human Rights and implement the human rights safeguards enshrined in China’s Constitution. This magnanimous act, arising from a lawyer’s defence and practice of fairness and justice, resulted in Gao being accused of incitement to subvert state power and sentenced to three years in prison.44 The Chinese government has offered two responses to lawyers’ handling of class action lawsuits: The first was in March 2006, when the All China Lawyers Association issued its “Guiding opinions regarding lawyers handling class action cases,” which strengthened official interventions into such cases.45 The AN: Peerenboom , supra note 19, at 343-44; Robert W. Gordon, “The Independence of Lawyers,” in Lawyer’s Ethics and the Pursuit of Social Justice, ed. Susan D. Carle, New York and London, New York University Press, 2005, pp. 66-7.

42 AN: Deng He, “How lawyer Zheng Enchong revealed state secrets,” Lawyers and the Legal System, No. 181, January 2004, pp. 12-13; Fu Hualing, op. cit., pp. 106-7.

43 AN: Zhang Yaojie, “The record of the hardships of law-defending lawyer Zhu Jiuhu,” Open Magazine (Kaifang), No. 223, July 2005, pp. 65-66; Fu Hualing, op. cit., p. 107.

44 AN: Fu Hualing, op. cit., at 106.

45 AN: Lawyers and the Legal System, No. 210 ( June 2006), p. 57; Fu Hualing, ibid., pp.

105-6.

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second was on 14 July 2009, when the Beijing Tax Bureau penalised lawyer Xu Zhiyong’s Gongmeng Co., Ltd., also known as the Open Constitution Initiative, with a fine of 1.42 million yuan. This struck a severe blow to the free legal counsel and other actions to safeguard basic human rights provided by Xu Zhiyong and others through this company.46

Conclusion In modern society, lawyers serve on the professional, political and social levels to promote social reform, and in that way fulfil their role and function of pursuing fairness and justice in their respective societies.47 This expression of professionalism offers an indelible contribution to democracy and rule of law in their countries.48 Yet, the prerequisite for legal professionals to fully serve the function of a civil society group is adequate and comprehensive safeguards as they practice of their profession. Otherwise even the mildest reforms will be blocked, to the loss of country and society.

In comparing the professional safety of lawyers in Taiwan and China, we see Taiwan’s lawyers continuing to strive for more autonomy and safeguards through their reform movement, but already enjoying relatively acceptable conditions.

China’s lawyers are currently striving for the elimination of obstacles to the practice of criminal defence, and for facilitation of class action lawsuits, where many difficulties remain to be overcome. The much-lauded accomplishments of economic development far outstrip the improvements China’s lawyers have experienced in the practice of their profession. The legal profession must do its utmost to bring about greater progress and fewer setbacks in the modernisation of China’s legal system.49 Given that the professional difficulties faced by China’s lawyers are not isolated phenomena,50 it is necessary to more closely examine China’s overall environment. The respected Chinese legal scholar Jiang Ping believes that the function of lawyers is directly related to a country’s democratic politics; only when there is political democratisation can the status

AN: Zhang Jieping, “Rights defence organisation Gongmeng searched and purged,” Yazhou Zhoukan, Vo. 23, No. 30, 2 August 2009, pp. 22-23.

47 AN: See the author’s “Lawyers in modern society,” Taiwan Bar Journal, Vol. 10, No. 2, February 2006, p. 2.

48 AN: Chen Yin-Meng, op. cit., pp. 78-80.

49 AN: Jiang Ping, “Chinese lawyers’ environment and resources,” China Lawyer, February 2005, pp. 5-7.

50 AN: Fu Hualing, op. cit., p. 131.

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of lawyers be genuinely raised,51 and of course, it is only then that lawyers can make a greater contribution to the promotion of democracy and rule of law. It is worth reflecting deeply on the fact that Professor Jiang’s views are to a great extent consistent with the great strides made in reform to the legal profession in Taiwan following the lifting of martial law.

Translated by Stacy Mosher

AN: Jiang Ping, “Where now for China’s lawyers?” Lawyer Magazine, No. 323, August 2006, p. 74.

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Taiwan’s Road to Rights Defence 181

Taiwan’s Road to Rights Defence Wellington Koo Li-Hsiung and Lucas Wang

Introduction Attorneys take upon themselves the goals of promoting social justice, protecting human rights and contributing to democratic government and the rule of law. Guided by these professional goals, with the spirit of self regulation and self governance attorneys should strive to faithfully execute their professional responsibilities, contribute to the preservation of social order, and work towards the improvement of the legal system.

— The Law of Lawyers (Taiwan), Article 11 In the twentieth century, modern Taiwan started out with colonialism under Japan, then experienced a baptism by fire in World War II, the Chinese government’s retreat from the mainland to Taiwan followed by 38 years of martial law,2 and finally the lifting of martial law and the democratic wave, bringing us up to our second peaceful transition of governments in 2008.

Regardless of whether we consider this arduous course from colonialism to authoritarianism to democracy to have been fortunate or unfortunate for the people of Taiwan, from the standpoint of safeguarding human rights, Taiwan itself has gained an environment uniquely rich in values. And while it would be an exaggeration to claim that Taiwan’s lawyers never disgraced the sacred mission set down in Article 1 of the Law of Lawyers, their role in the struggle to safeguard the human rights of the Taiwanese people should by no means be underestimated.

TN: This is the apparently official English translation provided at Lawbank, http:// db.lawbank.com.tw.

2 AN: Regarding what was the longest period of martial law recorded in world history, see the BBC Chinese website report, “Taiwan commemorates the 20th anniversary of the lifting of martial law,” 15 July 2007, http://news.bbc.co.uk/chinese/ (last viewed on 1 September 2009).

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In January 2009, the Taipei Bar Association’s Human Rights Committee, after much effort and many twists and turns, finally managed to invite mainland rights defence lawyers Zhang Sizhi and Mo Shaoping to a symposium held in Taiwan. In the course of those few days, our lawyers were shocked by what they learned of the conditions under which China’s rights defence lawyers practice their profession. Looking back on the similar experiences of Taiwan’s lawyers gives rise to an inexpressible emotion. On the invitation of the Hong Kong China Human Rights Lawyers Concern Group, we will here attempt to describe the experiences of Taiwan’s lawyers in safeguarding human rights, and compare them with the current difficulties and problems faced by China’s rights defence lawyers. We hope this will shed some light on the subject for our mainland colleagues who continue to practice in such perilous circumstances.

Efforts by Taiwan’s lawyers to safeguard human rights in the modern era During the Qing Dynasty, there was no legal profession as such in Taiwan.3 It was only after the Japanese government promulgated the “Agent ad Litem Regulations” in 1989 and the “Taiwan Attorney Regulations” in 19004 that a legal profession was established in the modern sense of the term. Below we will provide a chronology of Taiwanese lawyers’ efforts to safeguard human rights during several key historical turning points, beginning with the Japanese colonial era.

The Japanese colonial era (1900-1945) Against the backdrop of colonialism, Taiwanese lawyers could not be described as deeply engaged in safeguarding human rights during this period. Indeed, the lawyer who demonstrated the greatest concern for Taiwan’s farmer and labour movements and who engaged in long-term legal aid work in court was Furuya Sadao, who came to Taiwan from Japan.5 It is worth noting, however, that some lawyers came forward at that time to defend political dissidents. In the “Police

AN: The closest thing to a legal profession at that time consisted of public scribes and legal practitioners, the latter of which were banned by the local authorities. See Yu Ying-Fu, “100 Years of Taiwan’s Legal Profession,” in Hwang Tzong-Leh et. al. (ed.), Essays on One Hundred Years of Rule of Law in Taiwan, Taipei, Taiwan Law Society, 1996, p. 433.

4 AN: Yu Ying-Fu, ibid., p. 438.

5 AN: Wang Tay-Sheng and Tseng Aliang, The History of the Taipei Bar Association in the Twentieth Century, Taipei, Taipei Bar Association, p. 100.

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Order Law” incident of 1923, for example, when attorneys Tsai Shih-Ku and Jheng Song-Yun were investigated and prosecuted under the “Police Law for Maintaining Order” for their participation in the “Petition to Establish a Taiwan Parliament” and other political movements led by Chiang Wei-Shuei and others, apart from their Japanese defence counsel, top Taiwanese defence attorney Yeh Ching-Yao also took part in their defence. Through this case, Yeh established his reputation as a human rights advocate, and his defence pleadings in open court hearings and public statements related to other legal cases with a similarly strong political flavour spurred the development of the ascendant petitioning movement.6 Other Taiwanese lawyers used group strength to voice their opinions on human rights issues. In 1928, the Taiwan Attorneys Association passed a seven-point resolution, including: 1) “In the case of criminal defendants held in custody by the public prosecutor, if the evidence is not overwhelmingly clear, detention should not be used for the purpose of continuing searches to file an indictment”; 2) “The abuse of police regulations on detention by judicial police officials who suspect a crime should be prohibited and punished”; and 3) “The practice of detention by judicial police officials followed by immediate application for formal judgment should be changed to immediate release followed by the records being transferred to the court.” Apart from formally proposing the above items for negotiation with the chief prosecutor, the Taiwan Attorneys Association established five standing mechanisms to carry out investigations of human rights violations, promote efforts to safeguard human rights, and assign attorneys to provide legal aid in human rights-related cases.7 All this ultimately ended with the outbreak of World War II in 1937.8

The martial law era under the Kuomintang dictatorship (1945-1987) During the early years of this period, two incidents occurred that were particularly injurious to human rights in Taiwan. One was the 28 February (228) incident in 1947,9 and the other was the declaration of martial law in Taiwan Province AN: Chang Fu-Chun, Taiwan Lawyers after World War II – In Support of Human Rights from Individual Action to Collective Action, Masters thesis at National Taiwan University College of Law, 2007, pp. 17-18. TN: In English see “Fanfare for the Common Man – Chuang Yung-Ming’s ‘Take’ on Taiwanese History,” Taiwan Panorama, No. 10, 2003.

7 AN: Wang and Tseng, op. cit., pp. 100-101.

8 AN: Ibid., p. 103, 9 AN: For the full background of the 228 Incident, see the website of The Memorial Foundation of 228, http://www.228.org.tw/index.php (last viewed 3 September 2009), and Chang Yen-Hsien et. al. (ed.), Taipei, The Memorial Foundation of 228.

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in 1949.10 The former incident involved the violent suppression of petitioning campaigns by Taiwanese, and resulted in the deaths of many Taiwan-born lawyers, including Lee Tzuer-Han, Lee Tzuer-Fong, Lin Kui-Duan, Lin LiangTzong, Tang De-Chang and Chen Chin-Neng, which inevitably led to a longterm muffling of dissent among Taiwan’s legal professionals on the topics of human rights and rule of law.11 The latter incident imposed curfews, prohibited public gatherings and the formation of associations, and limited freedom of expression under penalty of the Statute for Punishing Rebellion. During the martial law era, laws controlling the publication of newspapers, magazines and books thoroughly limited the people’s basic freedoms, and anyone who violated these laws was tried in military courts,12 with countless innocent people suffering as a result. After martial law was lifted, there were 6,977 successful applications to the statutory body established to compensate those wrongfully prosecuted and punished for rebellion and espionage (including 780 persons who received the death penalty)13 – an indication of the woeful conditions under which Taiwan’s people lived during this time.

In the final years of martial law, even the harshest laws and decrees could no longer suppress the desperate longing of Taiwan’s people for freedom and democracy. Countless demands and protests arose within and outside of the establishment, accompanied by the emergence of lawyers to oppose the government and defend political cases. The more notable of these included Liang Su-Jung,14 who defended the Lei Chen case in 196015 and the Peng MingMin case in 1965,16 and Yao Chia-Wen and Lin Yi-Hsiung, who defended AN: The nation-wide imposition of martial law a year earlier in 1948 did not include Xinjiang, Tibet, Qinghai, Xikang (TN: Kham, a Nationalist-era province located at the juncture of western Sichuan and eastern Tibet) or Taiwan. See the “Taiwan Martial Law Proclamation” entry posted at http://zh.wikipedia.org (last viewed 3 September 2009).

11 AN: Chang Fu-Chun, op. cit., p. 60.

12 AN: Article 10, Statute for Punishing Rebellion.

13 AN: See the website of the Compensation Foundation for Improper Verdicts, http:// www.cf.org. tw/index.php (last viewed 3 September 2009).

14 AN: There are some who believe that Liang’s defence was influenced to some extent by government pressure or conformance to official policy. See Chang Fu-Chun, op. cit., pp. 88-89.

15 TN: Lei Chen, a KMT member, was imprisoned for 10 years on charges of sedition for publishing the opposition Free China magazine and launching the China Democratic Party.

See Mo Yan-Chih and Rich Chang, “Ma praises Lei Chen for work on democracy,” Taipei Times, 8 March 2009, http://www.taipeitimes.com/News/taiwan/archives/2009/03/08/ 2003437904.

16 TN: A professor of political science, Peng in 1964 joined with two of his students, Hsieh Tsong-Min and Wei Ting-Chao, in drafting the “Declaration of Formosan Self-Salvation,” which called for democratic reform and urged Taiwanese to rise against the KMT regime if it refused to answer the call. All three men were arrested before they could distribute the declaration. Peng was 10

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the Yu Teng-Fa case in 1978.17 But by far the most influential in establishing Taiwan’s lawyers as guardians of human rights was the Formosa Incident (also known as the Kaohsiung Incident) in 1979.

On 10 December 1979, which coincided with the annual observance of International Human Rights Day, the “Human Rights Memorial Committee” organised by oppositionists Shih Ming-Teh and Chen Chu applied for permission to hold a rally in Kaohsiung. During appeals for democracy and freedom, a clash broke out between anti-riot police and some 100,000 attendees. Lawyers Yao Chia-Wen and Lin Yi-Hsiung and others were subsequently indicted on charges of armed rebellion. Following appeals from lawyers Chen Chi-Sheng and Chang Teh-Ming, the lawyers Chiang PengChien, Lu Chuan-Sheng, Kao Jui-Zen, Chen Shui-Bian, Chang Chun-Hsiung, Chang Cheng-Hsiung, Chang Huo-Yuan, Kuo Chi-Jen, Cheng Ching-Lung, Cheng Sheng-Chu, Cheng Kuan-Li, Frank Hsieh Chang-Ting and Su TsengChang withstood enormous pressure and took on the defence of Huang HsinChieh and other members of the so-called “Kaohsiung Eight.”18 Although the defendants still received heavy sentences,19 each of the defendants and their defence attorneys, during their political and legal arguments in open court and

sentenced to eight years in prison in 1965, but due to international pressure he was transferred to house arrest later in the same year. He escaped to Sweden in 1970, but eventually returned to Taiwan, where he has remained active in the pro-independence movement. See Loa Iok-Sin, “Peng tells details of escape from KMT,” Taipei Times, 21 September 2008, http://www.taipeitimes.com/ News/taiwan/archives/2008/09/21/ 2003423802.

17 AN: This case gave rise to the first political protest of the Martial Law era, the “Chiaotou Incident,” which can be considered an impetus to the Formosa Incident one year later. See the item on the Chiaotou Incident on Taiwan Wikipedia, http://zh.wikipedia.org (last viewed 3 September 2009). TN: Yu Teng-Fa became Taiwan’s first non-KMT county commissioner when elected in Kaohsiung in 1960. Although suspended in 1963, Yu remained active in the political opposition movement. When Yu and his son Yu Juei-Yen were charged with treason in 1979, fellow oppositionists staged the Chiaotou protest. Yu Teng-Fa was subsequently found dead in a pool of blood in 1989 in a case that has never been solved. See Ko Shu-Ling, “Provincial officials recall drama of democratization,” Taipei Times, 3 December 2007, http:// www.taipeitimes.com/News/taiwan/archives/2007/12/03/2003390914.

18 AN: At that time the Taiwan Bar Association notified all of Taiwan’s lawyers that they were not allowed to serve as defence attorneys in the Formosa Incident case. See Tseng Chien-Yuan, “Chang Chun-Hsiung: Advocate of freedom and human rights, defender of democracy and rule of law,” in The Taiwan Law Review, No. 29, 1997, p. 155. On the constant threatening phone calls and harassment received by the defence team, see Chuang Chin-Kuo, “Formosa Incident Lawyers say they hoped for greater respect for rule of law in Taiwan,” New Taiwan, No. 368, 2003.

19 AN: For further details, see the item on the Formosa Incident in Taiwan Wikipedia, http://zh.wikipedia. org/ (last viewed 3 September 2009).

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through the news media and members of the public who attended the trial, were able to disseminate the political concepts of the democracy movement throughout Taiwan society, and laid the foundation for the subsequent lifting of martial law.

Compared with the actions of individual lawyers, the bar associations, closely aligned with the government, were far more conservative; for example, the Taipei Bar Association disciplined members Yao Chia-Wen and Lin YiHsiung, who had taken part in the Formosa Incident. On the other hand, the bar associations also vigorously fought for defendants to be allowed to appoint defence counsel at the investigation stage, as well as for human rights safeguards, and they organised legal symposia and submitted proposals to the Legislative and Control Yuans.20 Finally in 1982, under the influence of the Wang Ying-Hsien case, the bar associations facilitated the revision of Article 27 of the Criminal Procedure Code so that a criminal suspect could appoint a defence attorney at any time during an investigation.21 It was a rare instance at the time of Taiwan’s lawyers using their collective power to contribute to human rights safeguards.

The post-martial law era (1987 - present) With the lifting of martial law on 15 July 1987, the restoration of people’s basic constitutional rights, and the eradication of bans on factions and publications, Taiwanese society was finally released from the shackles it had borne for so many years. Among Taiwan’s lawyers, this prompted a frank airing of longsuppressed views. In this context the 1990 Taipei Bar Association election cannot go without mention. Under the leadership of Lin Min-Sheng and John C. Chen, the “Cultural Union” of graduates from liberal arts college law schools took control of the bar association, long dominated by veteran mainland immigrants and former military court lawyers. In line with the slogan AN: Wang and Tseng, op. cit., pp. 233-235.

AN: Wang Ying-Hsien was the first person in Taiwan’s history to be arrested for robbing a bank at gunpoint. Police extracted a confession from him under torture, after which he drowned himself to protest his innocence. The real bank robber was subsequently arrested.

See “Wang Ying-Hsien case facilitated reform in criminal law,” United Daily News, 24 June 2002, p. 5. TN: For English reports, see Sandy Yeh, “Deadlines are not the best way to tackle crime,” Taipei Times, 26 November 2002, http://www.taipeitimes.com/News/editorials/ archives/2002/11/26/184832; and Lin Feng-Jeng, “Judicial reform is needed to stop abuses,” Taipei Times, 26 July 2007, http://www.taipeitimes.com/News/editorials/archives/ 2007/07/26/2003371355.

20 21

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of newly-elected chairman Lin Min-Sheng, “Results on the inside, influence on the outside,” the Taipei Bar Association came to play an indispensable role in Taiwan’s legal circles in safeguarding human rights and other related matters.

The Taipei Bar Association and its membership were active on many issues, for example: the “Demand for 10 Constitutional Reforms” in 1990;22 a petition to the Legislative Yuan in 1991 to abolish the “Statute For Cracking Down On Gangsters During Period Of Suppressing Communist Rebellion,” the “Statute for Punishing Rebellion,” Article 100 of the Criminal Code and other evil legacies of martial law; the drafting in 1992 of the “Draft Regulations for Commemorating the 228 Incident and Compensating Its Victims”;23 the launch in 1996 of volunteer legal advisory services;24 the sponsoring of numerous discussion forums, lectures and exhibitions on human rights topics;25 and joining with like-minded groups to issue statements on cases involving human rights and rule of law.26 All of these activities developed and expanded the capabilities of Taiwan’s lawyers in protecting human rights. Most significant of all was the campaign for judicial reform launched in 1990.

After Taiwan progressed to normalcy under rule of law, the focus on human rights safeguards increasingly shifted from the political to the judicial plane, although the judicial system was still riddled with problems such as interference in judgments, inefficiency, criminal procedural loopholes and low public confidence. In 1990, the Taipei Bar Association, the China Society of Comparative Law (predecessor to the Taiwan Law Society) and the National Policy Centre joined to form the Judicial Reform Alliance. The Taipei Bar AN: Lin Min-Sheng and the Bar Association’s board of directors were actually accused of rebellion at the time. Ultimately no indictment was filed because the public prosecutor took the position that these views were merely political views on constitutional reform and bore no intention to usurp sovereignty. See Wang and Tseng, op. cit., pp. 271-272.

23 AN: Wang and Tseng, ibid.,pp. 283-285.

24 AN: Ibid., pp. 266-268.

25 AN: Ibid., pp. 285-287.

26 AN: Some recent cases include voicing support for mainland rights defence lawyers and calling on President Ma Ying-Jeou to express concern to the mainland government (2 June 2009), and expressing support and providing pro bono legal defence for the “Wild Strawberry” student movement, along with calls for amendment to the Parade and Assembly Law (12 November 2008). See the website of the Judicial Reform Foundation, http://www. jrf.org.tw/ newjrf/index_new.asp (last viewed 4 September, 2009). TN: For information in English on the Wild Strawberry movement, see the website of the Taiwan Wild Strawberry Student Movement, http://taiwanstudentmovement2008.blogspot. com/2008/12/shameon-government -walk-out-back-door.html (last viewed 18 September 2009).

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Association began conducting assessments of judges in 1992. In 1997 the Judicial Reform Foundation was established as a statutory body and held a “March for Renewal of Justice” in which more than 500 lawyers took to the streets. In 1999, under newly-appointed Grand Justice Weng Yueh-Sheng, a National Judicial Reform Conference was convened and produced a 53-point consensus. In the same year, the Taipei Bar Association and the Judicial Reform Foundation jointly made public, for the first time, their ongoing assessment of judges, and named those found to be substandard. One of the judges assessed as incompetent, High Court Judge Yang Kuei-Chih, subsequently initiated a private defamation suit against the Judicial Reform Foundation’s director general, Kao Jui-Cheng, and executive general, Joseph Lin. The Taipei Bar Association and the Judicial Reform Foundation nevertheless continued their assessment of judges and court observations, bringing about substantial improvement in the attitude of judges in court.27 Since the Judicial Reform Conference in 1999, the Judicial Reform Foundation, run largely by lawyers, has continued to push for amendments to the Organic Law of the Judicial Yuan, the Law of Judges and the Legal Aid Law. The amended Legal Aid Law came into effect in 2004, and since then the financially disadvantaged have been able to obtain legal assistance to carry out lawsuits. The Criminal Procedure Law has also been revised several times to gradually provide better safeguards for the presumption of innocence and the basic human rights of the accused.

Apart from systemic reform, the Judicial Reform Foundation, the Taipei Bar Association, the Taiwan Association for Human Rights and other such groups have provided legal assistance in many cases of injustice or infringement of human rights, such as the cases of Su Chien-Ho, Su Pin-Kun, Hsu Tzu-Chiang, Lu Cheng and Chiang Kuo-Ching.28 Apart from providing pro bono legal services, Taiwanese lawyers have also organised movements, academic seminars and petitions to the Grand Justice on interpreting the Constitution. In all of these activities, Taiwan’s lawyers have taken on the struggle to safeguard human rights.

AN: See the website of the Judicial Reform Foundation, http://www.laf.org.tw/tw/index. php, and the Legal Aid Foundation, http://www.laf.org.tw/tw/index.php (last viewed 4 September 2009). See also Wang and Tseng, op. cit., pp. 272-278.

28 AN: For details on these cases, see the website of the Judicial Reform Foundation, http:// www.jrf.org. tw/newjrf/index_new.asp (last viewed 3 September 2009). TN: See also Jou Ying-Cheng, “Report faults death row conviction,” Taipei Times, 29 December 2000, http:// www.taipeitimes.com/News/local/ archives/2000/12/29/67442.

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In addition, individual lawyers continue to show their concern by participating in various human rights domains. Notable examples include Joseph Lin and Cheng Wen-Lung,29 who have immersed themselves in legal assistance for ordinary people and who facilitated the introduction of the Legal Aid Law; Wang Ching-Feng,30 Jennifer Wang Ju-Hsuan31 and Yu Mei-Nu,32 who have devoted themselves to women’s rights and aid to disadvantaged women; Ken Chiu Huang-Chuan,33 Lee Sheng-Hsiung34 and Lin Feng-Jeng,35 who have participated in human rights organisations and taken on individual cases; Kuo Chi-Jen,36 who has fought for labour rights; Jason Lee Feng-Ao,37 who has engaged in the consumer protection movement, and Yang Chih-Hong,38 who has fought for the rights of Taiwan’s indigenous people. All of these Taiwanese lawyers have played an indispensable role in the history of human rights in Taiwan.

Rights defence on both sides of the Strait from the perspective of recent events on the mainland The afore-mentioned seminar organised by the Taipei Bar Association gave us a much clearer understanding of the difficulties faced by mainland lawyers, especially those engaged in criminal defence cases. The particular challenges AN: Ho Chia-Juan, “The necessities of life: An interview with lawyer Cheng Wen-Lung,” The Judicial Reform Magazine, No. 40, 2002.

30 AN: Qi Zhi-Ge, “Wang Ching-Feng: No looking back on involvement in social reform,” The Taiwan Law Review, No. 5, 1995, p. 131.

31 AN: Chang Hsiu-Hsuan, “Wang Ju-Hsuan: Persistent on the concept of social reform, devoted to efforts for gender equality,” The Taiwan Law Review, No. 27, 1997, p. 144.

32 AN: Wei Chien-Feng and Luo Juan-Juan, “Finding hope in a hopeless situation: An interview with a pioneer of Taiwan’s new feminism, lawyer Yu Mei-Nu,” Taipei Bar Journal, No. 260, 2001, pp. 102-105.

33 AN: Wu Hui-Juan, “Pleading on behalf of human rights for the masses: An interview with the chairman of the Taiwan Association for Human Rights, lawyer Chiu Huang-Chuan,” Falü yu Ni [The law and you], No. 100, 1996, pp. 126-136.

34 AN: Kuo I-Ching, “Lee Sheng-Hsiung: Persevering for human rights and conscience, concerned with society and politics,” The Taiwan Law Review, No. 30, 1997, p. 153.

35 AN: Hsu Wei-Lun, “A promoter of human rights: An interview with lawyer Lin FengJeng,” The Judicial Reform Magazine, No. 40, 2002.

36 AN: Tsai Tsung-Lung, “Kuo Chi-Jen: Law is the pursuit of justice,” The Taiwan Law Review, inaugural issue (No. 0), 1995, p. 135.

37 AN:Ho Chia-Juan, “Gatekeeper for consumer rights: An interview with lawyer Jason Lee,” The Judicial Reform Magazine, No. 40, 2002.

38 AN: Shi Feng-Kun, “Rights defender pushes for a dedicated court for aboriginal rights: Yang Chih-Hong,” Legal Aid Foundation Newsletter, No. 23, 2008.

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of meeting with clients in custody, reviewing case files and investigating and examining evidence, coupled with the no-win situation presented by Article 306 of the Criminal Law, create a hostile environment in which it is extremely difficult for lawyers to protect the basic human rights of their clients against the government.39 Under these conditions, the rights defence efforts of mainland lawyers are all the more heroic and laudable. Following are some examples that contrast and compare the situations on each side of the Taiwan Strait.

1) Charter 08 Charter 08, drafted by Liu Xiaobo and others and signed by more than 300 lawyers, scholars and writers, was launched at the beginning of December 2008 in commemoration of the 60th anniversary of International Human Rights Day. The document called for revisions to China’s Constitution, separation of powers and a system of checks and balances, and more effective human rights safeguards, among other demands. On 9 December, Liu Xiaobo was detained on accusations of “incitement to subvert state power,” and remains in custody to this day.40 An examination of this incident in comparison with the statements issued by the Taipei Bar Association in 199041 and 199242 calling for constitutional reform reveals both similarities and differences. In terms of content, both groups included demands on constitutional government, democracy and human rights, and the lawyers led by Lin Min-Sheng also fell afoul of the Statue for Punishing Rebellion.43 The difference lies in the fact that the public prosecutor’s office representing the Taiwan government had already attained a AN: See Wei Chien-Feng, “The difficulties of China’s lawyers in practicing their profession,” Taiwan Bar Journal, Vol. 13, No. 3, 2009, pp. 56-69.

40 AN: United Daily News, “Charter 08 drafter Liu Xiaobo detained for incitement to subvert state power,” 25 June 2009, p. A11. During his visit to Taiwan in 2009, Liu Xiaobo’s lawyer, Mo Shaoping, said the Chinese authorities did not allow lawyers to contact Liu Xiaobo, and even said to Mo Shaoping, “Lawyer Mo, you are a co-defendant!” (Mo Shaoping was also involved in Charter 08.)

41 AN: “Taipei Bar Association’s 10 demands for constitutional reform,” Lüshi tongxun, No. 130, appendix.

42 AN: “Bar Association’s 10-point manifesto on constitutional reform,” Lüshi tongxun, No. 151, pp. 1-3.

43 AN: At that time Article 100 (1) of Taiwan’s Criminal Law stated, “Anyone who intentionally sets about to violate the integrity of the state or occupy sovereign territory, or to use illegal means to change the national Constitution or overturn the government, will be sentenced to a minimum of seven years in prison, with the ringleader subject to life imprisonment.” Article 2 (1) of the Statute for Punishing Rebellion states, “Anyone who 39

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sufficient level of democratisation and ethical courage to decide not to file an indictment.44 The mainland police and prosecution organs, however, have not shed their status as tools of government repression. Indeed, they have departed even further from the proper legal procedures of countries under democracy and rule of law by placing the accused under an indefinite period of “house arrest” while limiting his right to legal counsel.45

2) Lawyer registration Beginning in April 2009, a number of mainland rights defence lawyers who had handled sensitive cases were unable to pass the “annual assessment and registration” (formally known as annual inspection and registration).

These lawyers were consequently disqualified from continuing to practice their profession, and ordinary citizens were deprived of lawyers to engage in defence of their rights. Zhang Weimin, secretary general of the Beijing Lawyers Association’s Rights and Interests Department, denied that there was any connection, however: “What does failing the assessment have to do with rights defence? What lawyer is not defending the rights of his client?”46 Whatever reason there might be for mainland rights defence lawyers “just happening” to fail their annual assessments, it is worth noting that in Taiwan’s legal system, once a lawyer has passed his law exam and become professionally qualified, has fulfilled all the training required to practice law, and has joined his local bar association, he can proceed to practice his profession (unless punishment for misconduct leads to disbarment or suspension). There has never been any requirement of annual assessment or inspection, and while the disciplining of lawyers was once entirely in the hands of the public prosecutor and the courts, the dogged efforts of Taiwan’s lawyers led to the amendment of Article 40 and Article 41 of the Law of Lawyers, under which disciplinary committees now include five lawyers among their nine members, and the disciplinary review committee includes five lawyers and two scholars among violates Article 100 (1), Article 101 (1), Article 103 (1) or Article 104 (1) of this law will be sentenced to death.”

44 AN: See Wang and Tseng, op. cit., pp. 271-272.

45 AN: For example, in Taiwan’s Criminal Procedure Law, the period of detention cannot exceed four months at the investigation stage (Article 108), and during that time a lawyer is allowed to freely meet with the defendant without any monitoring or recording ( Judicial Yuan Interpretation No. 654). TN: An English translation of this interpretation, which applies to Taiwan’s Detention Act, is provided at http://www.judicial.gov.tw/constitutionalcourt/EN/ p03_01.asp?expno=654 (last visited 17 September 2009).

46 AN: United Daily Online, 4 July 2009, “Beijing rights defence lawyers complain of official suppression,” http://udn.com/NEWS/main.html (last viewed 4 September 2009).

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its 13 members, with only a minority remaining judges and public prosecutors.

This has provided Taiwan’s lawyers with a measure of autonomy, and it is no longer possible for the government to use discipline as a means of suppressing individual lawyers.47

3) Lawyers’ physical safety The renowned mainland rights defence lawyer Gao Zhisheng has long been involved in defending the rights of mine workers, underground Christians and Falun Gong practitioners, as well as criticising official corruption, abuse of power by the public security organs and other malpractice. As a result, he has not only been convicted of “incitement to subvert state power,” but has also been repeatedly abducted, beaten and interrogated under torture. His present whereabouts are unknown, and it is feared that he may be dead.48 Setting aside the White Terror of the martial law era, have Taiwan’s lawyers encountered persecution or “disappearance” by the government while carrying out their duties following the lifting of martial law? The threats to life and limb that lawyers have faced from the government must be considered trivial, especially in comparison with the situation of mainland lawyers. For the most part, abuse consists of incivility, obstruction, dishonesty and verbal derision at the hands of prosecutorial, police or investigatory organs.49 For AN: Even so, there was a recent incident in which the Justice Ministry requested an ethics probe into Chen Shui-Bian’s lawyer Cheng Wen-Lung on allegations that he unlawfully delivered messages from Chen in prison to the public. The Taipei Bar Association cleared Cheng of any ethical breach, but the case has not yet been resolved. See China Times, “Weapons levelled,” 6 December 2009, p. A17. (TN: In English, see The China Post, “Delegation to travel to U.S. to clear up details of Chen case,” http://www.chinapost.com.tw/ taiwan/foreign-affairs/2008/12/09/186777/Delegation-to.htm, last viewed 17 September 2009). The Taiwan Bar Association, Taipei Bar Association and Judicial Reform Foundation issued a joint statement on this matter, demanding that the right to legal representation be honoured, and calling on the Justice Ministry itself to respect the principle of confidentiality during the investigation stage. See the website of the Judicial Reform Foundation, http:// www.jrf.org.tw/ newjrf/index_new.asp (last viewed 3 September 2009).

48 AN: Jerome A. Cohen, “What did China do with Gao Zhisheng?” op-ed in China Times, 19 March 2009, A13; and Liberty Times, “Wife of rights defence lawyer Gao Zhisheng arrives in the US,” 14 March 2009. TN: In English, see Jerome A. Cohen and Eva Pils, “The Disappearance of Gao Zhisheng,” The Wall Street Journal, 9 February 2009, http://online.wsj. com/article/ SB123410699583160731.html (last viewed 17 September 2009).

49 AN: On this point, see Wei Tsao-Ping, “Taiwan’s lawyers and human rights are nothing more than this,” Taiwan Law Journal, Vol. 3, No. 3, pp. 19-32; and Taiwan Bar Association (ed.), “Lawyers’ experience with the Bureau of Investigation and Police Bureau in handling cases,” Lawyers and Human Rights, Taipei, Taiwan Bar Association.

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example, in 1996, Wellington Koo and Liu Feng-Chao were forcibly removed from an interrogation room by investigators and suffered minor injuries; and in 2008 Tseng Wen-Chi was struck by an investigator when he asked to examine and approve the notes taken at an interview.50 Such incidents have been spontaneous and occasional, and always result in the bar associations immediately issuing strong protests and demands for follow-up action.51 For the most part, Taiwanese lawyers have no real reason to fear for their personal safety.

Conclusion The “democratic process” under which a people agree to be ruled requires that the people should have free access to information and data through which they can arrive at a public consensus, as well as safeguards for their freedom of expression and debate. Otherwise, the so-called rule by popular consent will ultimately become a dead letter. Put another way, freedom of thought is indispensable to the democratic process, and is the foundation on which a constitution is based.

— Okudaira Yasuhiro52 The vast chasm separating the flourishing development of human rights protection efforts by Taiwan’s lawyers, and the suppression encountered by mainland rights defence lawyers, is the inevitable difference between democratic and non-democratic systems, especially when lawyers take positions in opposition to or monitoring the government, and thereby become thorns in the side of the authorities. Many factors have contributed to Taiwan’s ability

AN: Liberty Times, “Conflict over examining notes: Lawyer accuses investigators of using violence,” 21 June 2008.

51 AN: On the 1996 incident see Wellington Koo and Liu Feng-Chao, “Sequence of events when members of the mobile unit of the Northern Division of the Ministry of Justice Bureau of Investigations forcibly removed Taipei Bar Association members Wellington Koo and Liu Feng-Chao from the interrogation room,” Taiwan Law Journal, Vol. 1, No. 1, pp. 72-76. On the 2008 incident see the joint statement issued by the Taiwan Bar Association, Taipei Bar Association and Judicial Reform Foundation on 22 June 2008, available on the website of the Judicial Reform Foundation, http://www.jrf.org.tw/newjrf/index_new.asp (last viewed 3 September 2009).

52 AN: Okudaira Yasuhiro, “The significance of freedom of expression and of the press to democratic constitutional government,” The Constitution and Human Rights, 6th ed., Taipei, 1997, p. 372.

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194 A Sword and a Shield: China’s Human Rights Lawyers

to successfully emerge from authoritarianism into democracy, but if asked to choose the most important of them, we would name the struggle for freedom of expression. Whether it’s the impassioned defence pleadings by the lawyers in the Formosa Incident trials, or the indictment levelled at the totalitarian government by Deng Nan-Jung and Chan I-Hua as their bodies were engulfed in flame,53 these incidents planted the seeds of democracy and freedom in Taiwan society and in the hearts of the people, which sprouted and grew into a power enormous enough to break down barriers. It is for this reason that the mainland government regards freedom of expression as a scourge and a threat that it will pay any price to keep under its firm control.

Translated by Stacy Mosher

AN: See entries on Deng Nan-Jung and Chan I-Hua in the Taiwan Wikipedia, http:// zh.wikipedia. org/ (last viewed 7 September 2009) TN: On 7 April 1989, Deng Nan-Jung (also romanised as Cheng Nan-jung), then editor-in-chief of Freedom Era Weekly, set himself on fire as police attempted to break into his office 71 days after he was charged with sedition for publishing a draft “Republic of Taiwan constitution” in his magazine in 1988. Democracy activist Chan I-Hua subsequently set himself on fire during Deng’s funeral procession on 19 May. Ko Shu-Ling, “20th Anniversary of the End of Martial Law: Photographs from martial law era on display in Taipei,” Taipei Times, 16 July 2007, http://www.taipeitimes.com/News/ taiwan/archives/2007/07/16/2003369768.

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Reference Documents Following is a list of law-related documents referred to in the articles in this volume. Online links were active as of October 2009.

English Translations of PRC Laws Criminal Procedure Law posted on the website of the Congressional-Executive Commission on China: http://www.cecc.gov/pages/newLaws/criminalProcedureENG.php Criminal Law posted by the Intelligence Resource Program of the Federation of American Scientists: http://www.fas.org/irp/world/china/docs/prc_cc_970314_2_6_2.htm posted on the website of the Hong Kong University School of Law: http://law.hku.hk/clsourcebook/chinese%20laws/criminal% 20law(e).htm.

Law on Legislation Posted by Zhongguo Lüshiwang: http://www.21lawyer.cn/english/01b/3.html Administrative Licence Law Posted by Zhongguo Lüshiwang: http://www.21lawyer.cn /english/03a/6.html.

Law on Administrative Penalty Posted at 51education.net: http://www.51education.net/Article/HTML/Article_9803.html.

Law on Lawyers (2007 revised version) Provided by International Bridges to Justice: www.ibj.org.

PRC Constitution with recent amendments Posted on the People’s Daily website: http://english.peopledaily.com.cn/constitution/constitution.html

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196 A Sword and a Shield: China’s Human Rights Lawyers

International Law and Conventions Charter of the United Nations http://www.un.org/aboutun/charter/ Edict of Toleration (Edict of Milan) http://www.fordham.edu/halsall/source/edict-milan.html International Covenant on Civil and Political Rights http://www.unhchr.ch/html/menu3/b/a_ccpr.htm Johannesburg Principles on National Security, Freedom of Expression and Access to Information http://www.unhcr.org/refworld/docid/4653fa1f2.html Universal Declaration of Human Rights http://www.un.org/en/documents/udhr/ UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief http://www.unhchr.ch/html/menu3/b/d_intole.htm Virginia Act for Establishing Religious Freedom http://religiousfreedom.lib.virginia.edu/sacred/vaact.html Some Other Relevant Links Apart from the resources footnoted in the individual articles, readers are invited to access the CHRLCG website, www.chrlcg-hk.org, for a wealth of useful information on the subject of China’s human rights lawyers. The following Englishlanguage resources also provide useful background information on the issues discussed in this book: Charter 08: English translation by Perry Link in The New York Review of Books, 15 January 2009: http://www.nybooks.com/articles/22210 Also posted on the website of Chinese Human Rights Defenders: http://www. crd-net.org/Article/Class9/Class10/200812/ 20081210142700_12297.html

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CECC roundtable on “China’s Human Rights Lawyers: Current Challenges and Prospects,” 10 July 2009: http://www.cecc.gov/pages/roundtables/2009/20090710/index.php Includes statements by lawyers in English: http://www.cecc.gov/pages/roundtables/2009/20090710/ FinalLawyersStatements_bob%20Fu.pdf CECC Hearing on “Human Rights and Rule of Law in China,” 20 September 2006: http://www.cecc.gov/pages/hearings/2006/20060920/index.php Open letter by 18 lawyers offering to provide legal defence to Tibetans detained after the 14 March protests: http://www.chrlcg-hk.org/phpbb/viewtopic.php?t=4476 Gongmeng statement on Tibet translated into English: www.savetibet.org/print/2197

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China Human Rights Lawyers Concern Group Tel: (852) 2388 1377 Email: info@chrlcg-hk.org

ISBN 978-988-18813-1-1 First published 2009 Copyright Š China Human Rights Lawyers Concern Group Printed in Hong Kong All rights reserved; no part of this publication may be reproduced, stored in a retrieval system, or transmitted in any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the publishers.

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