[Joint House and Senate Hearing, 111 Congress]
[From the U.S. Government Publishing Office]
CHINA'S HUMAN RIGHTS LAWYERS:
CURRENT CHALLENGES AND PROSPECTS
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ROUNDTABLE
before the
CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
JULY 10, 2009
__________
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Available via the World Wide Web: http://www.cecc.gov
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CO N T E N T S
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Page
Opening statement of Charlotte Oldham-Moore, Staff Director,
Congressional-Executive Commission on China.................... 1
Grob, Douglas, Cochairman's Senior Staff Member, Congressional-
Executive Commission on China.................................. 1
Pitts, Hon. Joseph R., a U.S. Representative from Pennsylvania,
Member, Congressional-Executive Commission on China............ 2
Cohen, Jerome A., Professor, New York University School of Law;
Codirector, U.S.-Asia Law Institute; and Adjunct Senior Fellow
for Asia Studies, Council on Foreign Relations................. 4
Turkel, Nury, Attorney with Kirstein & Young, PLLC............... 9
Feinerman, James V., Professor of Asian Legal Studies, Georgetown
University Law Center, Codirector, Asian Law and Policy Studies
Program........................................................ 11
Fu, Bob (Xiqiu), Founder and President, ChinaAid Association
(CAA).......................................................... 16
APPENDIX
Prepared Statements
Cohen, Jerome A.................................................. 28
Feinerman, James V............................................... 31
Fu, Bob (Xiqiu).................................................. 39
Submissions for the Record
Final Compilation of Translated Lawyers' Statements, submitted by
Bob (Xiqiu) Fu................................................. 41
CHINA'S HUMAN RIGHTS LAWYERS:
CURRENT CHALLENGES AND PROSPECTS
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FRIDAY, JULY 10, 2009
Congressional-Executive
Commission on China,
Washington, DC.
The roundtable was convened, pursuant to notice, at 10:02
a.m., in room 628, Dirksen Senate Office Building, Charlotte
Oldham-Moore, Staff Director, presiding.
Also present: Representatives Joseph Pitts and David Wu.
Also present: Douglas Grob, Cochairman's Senior Staff
Member and Kara Abramson.
OPENING STATEMENT OF CHARLOTTE OLDHAM-MOORE, STAFF DIRECTOR,
CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
Ms. Oldham-Moore. We'll get started. We're going to be
joined shortly by Congressman Pitts, who is a Commissioner.
STATEMENT OF DOUGLAS GROB, COCHAIRMAN'S SENIOR STAFF MEMBER,
CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
Mr. Grob. Thank you. Good morning, everybody. Welcome to
the CECC's eighth roundtable this year.
Before we get started, I would just like to say, on behalf
of the Chairman and Cochairman of the Commission, that we are
deeply saddened by the recent reports of deaths and injuries in
the Xinjiang Uyghur Autonomous Region of China, and express
heartfelt sympathy to Uyghur and Han Chinese individuals, and
all individuals and their families who have suffered.
We are delighted this morning to have a distinguished panel
of experts to discuss China's Human Rights Lawyers: Current
Challenges and Prospects. I would like to gratefully
acknowledge the presence of Representative Joe Pitts. Thank
you, Commissioner Pitts, for joining us here this morning.
At this roundtable our distinguished panel will discuss
China's human rights lawyers and their role in advancing the
rule of law in China. We will examine the relationship between
these lawyers, the Chinese government, and the Communist Party,
and explore why Chinese authorities recently have stripped some
prominent rights lawyers of their lawyers' licenses. We will
delve into documented incidents of increased harassment of
human rights lawyers in China, and ask what the future now
holds for them, and also ask what their treatment suggests
about the development of the rule of law in China more
generally.
I'd like just to share with you this month's issue of
Chinese Lawyer magazine, which features a cover story on a
leading criminal defense attorney at a major Chinese law firm,
a firm that has hundreds of attorneys in four cities, now in
its 16th year of operation. Just two decades ago, such a law
firm would have been somewhat unimaginable, and represents an
important development in many ways. So does China's revised
Lawyers Law, which took effect last year, and which contains
provisions aimed at combating some of the difficulties that
criminal defense lawyers in China face in representing their
clients. Some provisions of the Lawyers Law conflict with
China's Criminal Procedure Law, but overall the revision of the
Lawyers Law too, is an important step.
Yet at the same time, we gather here today to discuss
Chinese authorities' failure to renew the professional licenses
of some prominent lawyers who take on what the government deems
to be politically sensitive cases. So, for those who see a
threat to justice anywhere as a threat to justice everywhere,
it's only natural to ask the question: What does this portend
for the future of procedural law in China in general in areas
beyond what is classically known as human rights law, and
extending as far as to commercial law and other areas of civil
law and criminal law in China?
And so I now would like to turn the floor over to
Representative Pitts and ask if you have a statement or remarks
to make.
STATEMENT OF HON. JOSEPH R. PITTS, A U.S. REPRESENTATIVE FROM
THE STATE OF PENNSYLVANIA, MEMBER, CONGRESSIONAL-EXECUTIVE
COMMISSION ON CHINA
Representative Pitts. Thank you. Thank you, Mr. Grob. I
really appreciate your holding this important roundtable
discussion.
I am disturbed by the recent reports regarding human rights
lawyers in China. More than 18 lawyers, I'm told, who have been
representing sensitive human rights cases have not been able to
renew their law licenses, according to Human Rights Watch. This
number is unprecedented. Some reports even indicate that
lawyers have been arrested and beaten, in some cases even
kidnapped, because of their involvement in human rights cases.
Human rights attorney Gao Zhisheng, a prominent lawyer who
has worked on religious freedom cases, has been missing since
February 4 of this year. Li Heping, another lawyer who has
defended Christian house church leaders, and Gao Zhisheng have
been among the lawyers to be denied renewal of their law
licenses. I personally met with some of these lawyers,
including Li Heping. I'm very concerned with the effects that
this trend will have on the rule of law in China and the basic
human rights of the people, the Chinese people.
In addition, law firms are being pressured to provide
authorities with ammunition to deny the licenses of lawyers
involved in these sensitive human rights cases. On May 28, the
New York Times reported, ``In some cases the law firms were
told that they could avoid difficulties by giving the lawyers
failing grades in their annual performance evaluation.'' At
least three law firms have not been allowed to pass inspection
because of lack of cooperation with the government. These
actions are clearly intended to intimidate lawyers and law
firms into not taking these sensitive human rights cases.
So I look forward to hearing from our distinguished
roundtable witnesses, receiving their insights and
recommendations on the steps that we in the Congress, the U.S.
Government, should take to further support the fundamental
rights of the Chinese people and the attorneys who are seeking
to uphold their human rights. I would like to extend a special
welcome to my good friend, Bob Fu, who I've worked with for
many years, and thank him for his work and dedication on behalf
of human rights and religious freedom in China.
Thank you, Mr. Grob. I yield back.
Ms. Oldham-Moore. Thank you, Congressman Pitts. We're
really grateful that you are here today.
I'm going to do a quick introduction of our extraordinary
group of panelists today.
We must always begin with Professor Jerome Cohen, who is an
American treasure. Professor Cohen is a leading American expert
on Asian law, has been a professor at the New York University
School of Law since 1990, where he is also the codirector of
the U.S.-Asia Law Institute.
Mr. Cohen is also an Adjunct Senior Fellow for Asia Studies
at the Council on Foreign Relations. Before retiring from a
partnership at Paul, Weiss, Rivken, Wharton at the end of 2000,
Mr. Cohen represented many companies and individuals in
contract negotiations, as well as in dispute resolutions in
various Asian countries. He writes a biweekly column for Hong
Kong's South China Morning Post and Taiwan's China Times and is
a frequent pro bono consultant in human rights and criminal
justice cases relating to China and Taiwan.
Mr. Cohen formerly served as Jeremiah Smith Professor and
Director of East Asian Legal Studies, and Associate Dean at
Harvard Law School. He has published several books, including
``The Criminal Process in the People's Republic of China: 1949-
1963,'' ``People's China and International Law,'' and
``Contract Law of the People's Republic of China,'' and many
articles on Chinese law, as well as a general book, ``China
Today,'' coauthored with his wife, Joan Liebold Cohen.
Today Mr. Cohen continues his research and writing on Asian
law, specifically focusing on criminal justice reform, dispute
resolution, human rights, and the role of international law.
Mr. Cohen also served in government, first as an Assistant
U.S. Attorney in Washington, DC in the late 1950s, and then as
a consultant to the U.S. Senate Committee on Foreign Relations.
Mr. Cohen is a Phi Beta Kappa graduate of Yale College and a
graduate of Yale Law School, where he was editor-in-chief of
the Yale Law Journal. He was law secretary to Chief Justice
Earl Warren of the U.S. Supreme Court in the 1955 term, and law
secretary to Justice Felix Frankfurter of the Supreme Court in
the 1956 term.
Next to Mr. Cohen is Mr. Nury Turkel, who is an attorney at
Kirstein & Young. Mr. Turkel is an attorney there and his
practice focuses on commercial and regulatory matters.
Prior to joining Kirstein & Young, Mr. Turkel managed a
Washington-based nonprofit organization, the Uyghur-American
Association, which works to promote democratic freedoms of
Uyghur people in China and Central Asia. He has testified
before the U.S. Congress and given many presentations,
including at the U.S. Military Academy, the National Defense
University, and Columbia University. He has also published many
columns and op-eds.
To my right is Professor James Feinerman, who we are very
fortunate to have with us today. Professor Feinerman joined the
Georgetown University Law Center faculty as a visiting
professor for the 1985-1986 academic year. Immediately after
law school he studied in the People's Republic of China.
Subsequently he joined the New York firm of Davis, Polk &
Wordwell as a corporate associate.
During 1982-1983, Professor Feinerman was a Fulbright
lecturer on law at Peking University. In 1986, he was a
Fulbright researcher in Japan. In 1989, he was awarded a
McArthur Foundation Fellowship to study China's practice of
international law.
During the 1992-1993 academic year, he was a fellow at
Woodrow Wilson International Center for Scholars. From 1993-
1995, on leave from the Law Center, Professor Feinerman was the
director of the Committee on Scholarly Communication with
China. Professor Feinerman served as the editor-in-chief of the
American Bar Association's China Law Reporter from 1986 to
1998. He spent spring 2006 as Fulbright senior distinguished
lecturer at Tsinghua University Law School in Beijing.
Professor Feinerman is the author of numerous journal articles
and opinion pieces on the rule of law in China and has
coauthored two books.
Finally, Mr. Bob Fu, president of the ChinaAid Association.
He is one of the leading voices in the world for the persecuted
church in China. He was born and raised in mainland China, and
graduated from the School of International Relations, People's
University in Beijing.
He was a pastor at a house church in Beijing until he and
his wife, Heidi, were jailed for two months for illegal
evangelism in 1996. They fled to the United States as religious
refugees in 1997. Mr. Fu founded the China Aid Association in
order to draw international attention to the Chinese
Government's human rights violations against house church
Christians. He is now a visiting
professor in Religion and Philosophy at Oklahoma Wesleyan
University, and a Ph.D. candidate at Westminster Theological
Seminary in Philadelphia. He has written numerous pieces,
including as a guest editor for the China Law and Government
Journal by the University of California, Los Angeles.
Lots of information there. Let's get right to it. Professor
Cohen, we'd be delighted to hear your statement.
STATEMENT OF JEROME A. COHEN, PROFESSOR, NEW YORK UNIVERSITY
SCHOOL OF LAW; CODIRECTOR, U.S.-ASIA LAW INSTITUTE; AND ADJUNCT
SENIOR FELLOW FOR ASIA STUDIES, COUNCIL ON FOREIGN RELATIONS
Mr. Cohen. Thank you very much. I want to thank
Representative Pitts for coming here and showing such concern
for the lawyers of China who are worried about human rights. I
want to thank, of course, Ms. Oldham-Moore, Mr. Grob, and the
staff for organizing this.
In 1977, a former student of mine, Victor Li, published a
very interesting book called, ``Law Without Lawyers.'' His
thesis was, China has a distinctive political-legal culture,
it's not one, as in Western countries or elsewhere, that
requires a prominent role for lawyers, and the world should be
open to recognizing China's distinctive characteristics.
Deng Xiaoping and company, soon after, took a different
view. They resurrected the Soviet model that China had imported
during its first decade of Communism. They modified the model
for economic purposes, but they retained it for political-legal
purposes. That included reliance on lawyers.
Of course, the reliance on lawyers that China soon
demonstrated throughout the 1980s and 1990s had many virtues.
One of the problems, however, was when it came to human rights
matters, the lawyers were subjected to restraints, just as
Soviet lawyers were. This has been a continuing problem.
I have a formal statement; some of you may have a copy. I'm
not going to read it, but I thought I would try simply to
summarize it in the time allotted.
The 2007 amendment to the Lawyers Law offered some greater
hope to lawyers that they would be able to take part in
criminal cases to a greater extent, and that they would have
more autonomy in governing their own affairs.
It has been an improvement in some respects. In other
respects, however, there is vague language in the law about
state security, et cetera, that is easily subject to
manipulation to use against lawyers. What we have found,
although China has about 150,000 lawyers, only a very tiny
minority have shown an active interest in human rights matters,
and perhaps not more than 1 percent make human rights matters
the bulk of their professional concerns. That is natural.
Lawyers have to make a living.
The problem is, the human rights lawyers who are active
have consistently run into difficulty from the Ministry of
Justice that controls them and from the local lawyers
associations that operate with the guidance and instruction of
the Ministry of Justice.
That is why, in Beijing and Shenzhen, and a few other
places, rights lawyers have tried to gain democratic control
over the local lawyers' association. They have only made modest
progress. If you're interested, there is a recent issue of
China Rights Forum about the rule of law that is one of the
sources for following the struggle of human rights lawyers for
autonomy and governing themselves.
In the real world, these lawyers' associations work under
the Ministry of Justice and impose discipline, as
Representative Pitts has already recognized, on lawyers.
Normally they operate quietly. They try to have chats, informal
talks, with lawyers to discourage them from taking part in a
broad range of cases. If they do not discourage them from
taking part, they certainly require them to report, to accept
guidance, in the handling of sensitive cases. These cases
include highly controversial, sensitive political cases, like
those involving Xinjiang and Uyghur independence claims, or
Tibet, or people who want to organize democratic parties.
Falun Gong has been one of the most controversial
categories. The systematic abuses received by the Falun Gong
worshipers have been a highly sensitive point, and most lawyers
are not permitted to represent Falun Gong defendants, and those
who do are highly controlled.
``House church'' people have also often found legal advice
is not available to them, or is inadequate. There have been
many cases involving claims against government for rather
mundane activities. Corruption questions involving local
officials, attempts to subject women to arbitrary birth control
procedures, forced eviction of people from their housing and
relocating them to places they don't want to be. Even civil
cases encounter interference with lawyers on occasion.
Professor Feinerman's statement, which I looked at briefly
before the hearing, has many good examples of land
transactions, environmental disputes, collective labor
disputes, compensation for tainted milk products, earthquake
victims; all of these cases have been cases where many
lawyers--public interest lawyers, human rights lawyers--have
wanted to take part and have often been refused or restrained
in their effort to take part. The most recent case involves the
Charter 08 organizer, Liu Xiaobo, who was not permitted to
retain the famous rights lawyer, Mo Shaoping.
Now, lawyers who don't follow the informal advice/
suggestions/
instructions of the local lawyers' association or the judicial
bureau of their city suffer many sanctions. Their license to
practice law may be suspended, it can be revoked.
A most recent technique used is to get the local lawyers'
association, as Representative Pitts recognized, not to approve
the renewal of lawyers' licenses and that effectively denies
these people the ability to practice law. And as has been
indicated, their law firms are coerced to restrain them, stop
them, or fire them, move them out; there are a variety of
techniques we do not have time to consider.
Moreover--and this is rarely focused on--there are
Communist Party organizations in these law firms. These law
firms have Party organizations, like every social unit in
China. They have been strengthened so that most law firms now
will have a Party organization, a Party branch, that may
reinforce discipline.
Now, for the lawyers most unresponsive to the guidance of
the authorities, criminal process has been invoked. A number of
people have been sent to prison on a variety of pretexts.
Criminal law in every country tends to be rather broad, and in
China it is especially vague. That is how lawyers who have
already lost their
license, like Gao Zhisheng in Beijing and Zheng Enchong in
Shanghai, have been sentenced to prison.
In Shenzhen, a lawyer, Liu Yao, was sentenced to prison,
and only the petition of over 500 local lawyers got him out
after 16 months. But in all such cases, these people who are
convicted of crime lose their right to practice law forever,
and that certainly makes a major inroad on their ability to
earn a living and their capacity to carry out public interest
work.
Moreover, even self-taught, ``barefoot'' lawyers, who
aren't really licensed lawyers but who, through self-study and
experience and practice, have managed to learn something about
law and who play an important role in some places in the
countryside, have been sent to prison.
Chen Guangcheng is the most famous example. He's still got
about a year to serve. I know all these people. I know Gao, I
know Zheng, I know Liu Yao, I know Chen Guangcheng. These are
marvelous people. They don't deserve criminal punishment.
Another case involves Guo Feixiong, I didn't have space for
it in my introduction, but should mention it. He's another
``barefoot'' lawyer, convicted for operating a business without
a license because he published a book about eight years ago
without having the requisite approval. He got five years for
that, an unusually heavy sentence.
The worst aspect of this from my point of view is the
physical intimidation that many ``rights'' lawyers are
informally exposed to. Today is the 156th day since Gao
Zhisheng was ``disappeared,'' to use the English version of
Latin American parlance. You remember the techniques of Latin
American dictatorships? Well, is China starting that?
Gao had been convicted. He'd been released on a suspended
sentence, but he didn't comply with all the demands made on
him, especially not to reveal torture he had already suffered,
and he has not been heard from since his abduction. Absurdly,
the Chinese Embassy in Washington, in response to congressional
inquiry, has said he's on probation and he's free. Well, if
he's free, no one knows where he is. Many people fear he's
dead. So, this is not a happy situation.
Of course, many lawyers have been beaten. Professor
Feinerman gives some details on that. I know some myself. I've
seen the bruises just a few weeks ago in Beijing on some of the
lawyers who were more recently attacked. And, of course, I know
Professor Teng Biao, who was kidnapped, a hood put over his
face, taken to a remote place, held for hours, and threatened.
This is Hitlerian, thuggish behavior. It's not appropriate,
given China's accomplishments, China's great progress in
economic and social matters and the desire of the Chinese
leadership to have their country recognized as having a
civilized government. It should stop.
And, of course, in their daily lives, many ``rights''
lawyers are monitored. If I call a rights lawyer up and say,
``Can you come for dinner tomorrow? '' He says, ``I have to ask
my keeper who's outside.'' He calls back and says, ``No, they
won't permit me to come. If I want to go to the office tomorrow
I can't go to dinner with you tonight, but maybe I can send a
substitute.'' It's their daily life.
The worst case of this type I know is Zheng Enchong's. He
already served three years in prison. He also finished one year
of restriction on his political rights. Nevertheless, he is
daily living a nightmare in terms of being restricted, being
beaten, having his family discriminated against. His daughter
had to flee to America because the authorities made it plain
she had no future in China.
Zheng Enchong does not deserve this. He is a splendid
person. I tried to visit him in 2006. Six policemen stopped me
from going into his apartment. I kept saying to them, ``What's
your authority for doing this? There's no legal basis for this
that I know of.'' They simply said, ``We're police.'' I asked
again and they said, ``We're police.'' I said, ``Look, in
Shanghai you're always saying that you're better than the rest
of the country with respect to the rule of law. `We're police'
isn't a good enough answer.''
So it makes me think, if Victor Li were to have a sequel to
his stimulating 1977 book, called ``Law Without Lawyers,''
maybe we should call it ``Lawlessness Without Lawyers.'' If you
don't have human rights lawyers, what you get is lawlessness.
There are only a few minutes left. I just want to comment
briefly on three other important aspects. One is human rights
lawyers and political reform. There is an understandable debate
going on in China among the human rights law community: should
human rights lawyers take part in active political reform?
Should they call for an end to the monopoly of power of the
Chinese Communist Party? Or should they simply try to make the
best of their bad professional situation, fighting for the
public interest and human rights with one arm tied behind their
back because of all the restraints they suffer?
Most of the lawyers take the latter position. Gao Zhisheng
did not. I talked with him about this and I said I admired his
view that without political reform of a significant nature
there never would be a genuine rule of law in China. But I also
said, ``If you take this position in public, you're not going
to be available to help people any more. You're not going to be
on the street.'' Within four months, he wasn't, and he has
suffered terribly.
Some other ``rights'' lawyers take the view that they are
professionals, not political figures. Yet they're not merely
like dentists, they recognize the need for law reform. They
take part in legislative reform. They handle individual cases
the best they can. Most of them remain on the street, and even
though they're punished in the ways I've indicated, this
valiant group continues.
Mo Shaoping has been the embodiment of the professional
lawyer who publicly keeps his nose out of politics. Yet even he
was so frustrated last year that he signed the famous Charter
08, which surprised people. But I think he will continue to be
in the professional mode, not looking for active political
reform and leaving that to others.
There are a lot of restrictions on lawyers' daily practice.
Of course, this Commission has considered them before, and many
people have written about them, including myself, and my
statement refers to them. I won't linger on that.
I will just say that the active human rights lawyers, not
only in criminal prosecutions, are limited in what they're
allowed to do and are subject to a considerable number of
unfair restrictions. Many basic questions have yet to be dealt
with, for example: should witnesses come to court in a major
criminal case so they can be cross-examined or should the
statement they gave the police be sufficient evidence and
essentially unchallenged?
There are also problems with supposedly ``non-criminal''
sanctions. The infamous laodong jiaoyang, ``reeducation through
labor,'' for example. Lawyers have generally not been allowed
to play a role in the process of determining whether somebody
should be sent off for as many as three years of what amounts
to criminal punishment under a different name.
There is pressure now to try to improve the procedures
because the Ministry of Public Security is desperately trying
to retain ``reeducation through labor,'' which gives the police
alone the power to put you away for as long as three years; no
lawyer, no prosecutor, no judge is necessary.
In reviewing such police determinations, there is a modest
role for courts and lawyers but it is modest. Constitutional
questions also are not open to lawyers at this point. The
courts cannot consider them, the National People's Congress
Standing Committee, which can, is not really functioning in
this respect, so lawyers are also frustrated there. If China
adheres to the International Covenant on Civil and Political
Rights, the role of lawyers will be expanded, at least in
principle, and we hope in practice.
Just a final point about ``barefoot'' lawyers. The Chinese
countryside is sadly lacking in legal services. Some counties--
a few years ago, 206 counties--had no lawyers whatever. People
need legal advice. ``Barefoot'' lawyers are one response to
this, people who do not have formal legal education and are not
qualified lawyers, but who, nevertheless, can play a role when
regular lawyers fail to do the job. Unfortunately, some members
of the legal profession oppose ``barefoot'' lawyers. They think
they'll only make the reputation of lawyers worse regarding
corruption and incompetence.
I think that is short-sighted. I think we should follow the
example of the former dean of Tsinghua Law School, Wang
Chenguang, in training ``barefoot'' lawyers to play a role in
the rural areas, otherwise people in the countryside will often
have no way to challenge arbitrary rule, whether it's a
question of arbitrary taxation, land deprivation, or whatever.
There are many questions that ought to be considered here,
and I am grateful to the Commission for giving us the
opportunity to discuss them. Thank you very much.
[The prepared statement of Mr. Cohen appears in the
appendix.]
Ms. Oldham-Moore. Thank you, Mr. Cohen. Commissioner Pitts
had to go vote. He'll be back.
Nury Turkel has an obligation that he cannot avoid. He'll
give brief remarks, and then he unfortunately has to depart.
Please, Nury.
STATEMENT OF NURY TURKEL, ATTORNEY WITH KIRSTEIN & YOUNG, PLLC
Mr. Turkel. Thank you very much for organizing this panel
discussion.
I'm going to use one minute of my time to clarify a couple
of things about what is happening in Urumqi. First of all, we
oppose any type of violence for any reason. I'd like to make it
absolutely clear that the Chinese Government's accusation of
Uyghur organizations instigating the incidents in Urumqi is
false.
The other point I'd like to clarify is the number of
casualties. The government says 156 deaths. They haven't broken
down the ethnic numbers. From what we heard through a Radio
Free Asia interview with a Uyghur individual from Urumqi,
several hundred Uyghurs have been shot in front of Xinjiang
University, Xinjiang Medical University, and in Central Square.
I wanted to clarify another point. The Guangdong incident
sparked the incidents but that's not the only reason as to why
the Uyghurs took to the streets to demonstrate. In the last six
decades, particularly since 9/11, the Uyghurs lose out on every
front; political, economic, and social.
Considering the Chinese history of heavy-handed and brutal
crackdowns on political dissenters, the Uyghurs took to the
streets carrying the Chinese flags last Sunday. They did not
intend to turn the demonstration into a violent incident. It
turned into violence after the Chinese started firing tear gas
and shooting at the demonstrators. The demonstration was mostly
organized by students. A week ago, the Turkish President
delivered a very interesting speech at Xinjiang University and
most of the students who participated in the demonstration were
from Xinjiang University.
Today, we're discussing the lack of access to lawyers and
Chinese Government harassment of rights lawyers in China. I'd
like to point out that there will be a mass arrest, torture,
and execution in the coming weeks and months. Those detained
and accused will not have access to fair judicial process or
lawyers.
Speaking of which, the Uyghur political prisoners or
demonstrators participating in the 1997 uprising in Ghulja are
still languishing in prison. I don't believe that any of them
have had access to fair judicial process. I had a chance to
interview two of the former political prisoners who
participated in the 1997 demonstration. One of them happened to
be a former Guantanamo inmate who now lives in Albania. He said
he didn't have any access to lawyers. He was subject to torture
and long imprisonment.
For Uyghurs, representing or being represented is extremely
difficult, because anything Uyghurs have done could be easily
translated into a political crime that is separatism or
terrorism. So any Chinese or Uyghur lawyers cannot even get
close to representing, or even talking to, the Uyghur prisoners
in Chinese prisons. It's simply too risky to represent Uyghur
cases.
Recently, there has been one other legal need that has
emerged for Uyghurs: losing their properties, particularly in
Kashgar. As you may have read recently, the Chinese Government
is demolishing the Old City of Kashgar, and that has resulted
in many Uyghurs losing their real properties. And they're not
being fairly compensated.
When they ask for their lawyers' help, their response is
that ``it's a government policy and if I represent you, I'll be
in trouble. I cannot get involved, even though this is a
property interests and compensation-related issue. If I
represent you and go to the courts with you, then the
government will take away my license. Sorry, I cannot help
you.'' That has been a typical response from lawyers.
Recently I've conducted interviews and found out that there
are no Uyghur rights lawyers. Basically, there is no Uyghur Gao
Zhisheng. There are some Uyghurs who represent cases involving
petty crimes. As long as it does not involve criticizing
government or criticizing government officials, the Uyghur
lawyers take cases involving petty crimes.
I'd like to use a few examples to highlight the situation,
particularly the political prisoner situation in Xinjiang. The
most famous case is the case of Rebiya Kadeer's children. They
were initially taken into custody for tax evasion. When that
happened, Rebiya Kadeer's family tried to get a lawyer. And
most of them flatly rejected it because of her name, because of
her family history.
They initially thought that it might be all right to
represent them since it was tax-related issues. Then later, the
government charged Ms. Kadeer's sons for crimes of separatism
and endangering state security. They made the lawyers keep
their hands off the cases. So one of her children was sentenced
to seven years in prison and the other one was sentenced to
nine years in prison.
One other famous case involves a Canadian citizen--his name
is Hussein Celil--who traveled to Uzbekistan with a Canadian
passport. At the request of the Chinese Government, he was
deported to China. To this day, Canadian officials, Canadian
lawyers cannot get access to him. It's been more than three
years since his arrest. A couple of years ago, he was sentenced
to life in prison.
I talked to his lawyer last week. His name is Chris McLeod.
He said he even tried to hire a local lawyer, with the help of
a group of Falun Gong practitioners who have access to a local
rights lawyer. They invited the Chinese lawyer from Beijing.
But that courageous lawyer was harassed and even received death
threats. His family was upset that he's representing a
separatist and terrorist. Then the lawyer backed off.
So I wish I could tell you good stories. But there's
literally nothing good coming out of the Uyghur region. Last
night I was doing research to find out what is happening to
this brave ``barefoot'' lawyer that Professor Cohen was
mentioning. His name is Ilham Tohti. He is an economics
professor at Beijing Nationalities University. He has been an
outspoken critic of the Chinese officials in Urumqi. His point
is that China has a constitution and autonomy laws. These
officials, including Nur Bekri and Wang Lequan are making it
difficult not only for the Uyghurs, but also the central
government. They are the root cause of all the Uyghur
resentment and ethnic tension.
He is the owner of a blog that the Chinese Government has
accused of being used by the so-called separatists and rioters
to plan Sunday's demonstration. We've found out last night that
he has been taken away. We don't know his whereabouts. He said,
right before his arrest on his blog, that ``I always tell
myself to be cool, calm, and make rational analysis. Going to
the courts to resolve disputes is something that should be
lawful in this society. I am my own lawyer. When my trial comes
up, they'll appoint a lawyer for me. I will not trust the
government to appoint a lawyer.''
I'd like to end my remarks there. Thank you.
Ms. Oldham-Moore. Thank you, Nury. We're very grateful that
you were able to get here today. I know you had a number of
other obligations. Thank you.
Professor James Feinerman, we're honored to have you.
Please go ahead.
STATEMENT OF JAMES V. FEINERMAN, PROFESSOR OF ASIAN LEGAL
STUDIES, GEORGETOWN UNIVERSITY LAW CENTER, CODIRECTOR, ASIAN
LAW AND POLICY STUDIES PROGRAM
Mr. Feinerman. Thank you. I am very glad that I'm here
today and that the Commission has convened this roundtable on
this very important topic. I'm grateful to Representative Pitts
for coming here and demonstrating with his presence the
importance that is attached to this issue. I am, of course,
very glad to be here with my colleagues on the panel,
particularly my teacher and mentor, Mr. Cohen.
I am glad that he began by both quoting Victor Li--I'll
come back to that in a second--and by saying that he was going
to depart from his prepared remarks. I have some too, and I
will likewise depart from them since you can read what I had to
say there, and I will try to summarize them and hit a few other
points along the way in the brief time that is allotted to me.
I am glad that Jerry mentioned Victor Li because I actually
spoke before another hearing of this Commission about five or
six years ago, and the title of my presentation then was
``Lawyers Without Law,'' turning around the title of Victor's
famous book. The point that I was making then, which I think is
still valid today, is that China has lawyers. It has lots of
lawyers compared to what it had when Victor wrote his book, and
even for decades afterward.
But the point is that they don't really operate in a system
which has the rule of law that makes the practice of what they
do meaningful in the sense of promising justice to the widest
range of the Chinese citizenry, although many lawyers do what
lawyers do in this country and many other countries in
representing clients in court and carrying out business
transactions and advising people about things like taxes and
family law.
But what is missing is the sense that there is an
obligation on the part of lawyers and the organized bar in
general to do something about the overall enjoyment of justice
by the citizens of their country. I think that that's an
important thing to take home from the presentations that you're
roundtable today in a variety of
different circumstances, whether it's the mistreatment of
ethnic
minorities in Xinjiang, whether it's the continuing illegal
harassment--even given China's constitutional law--of religious
practitioners, or some of the other cases that I'll talk about,
highlighting what is in my prepared remarks.
I think it's also an important event to have this
roundtable today, this month, because this month marks the 30th
anniversary of China's determination to embrace the rule of
law. Often the criticism that China makes or tries to deflect
when it is criticized by others for lacking the rule of law is
that this is a Western concept and we don't really have to
explain ourselves. We're our own country, we have our own
sovereignty, we have our own very long historic tradition, and
we do things our way, you do things your way.
But I think as the embrace of the rule of law that began
with the publication of China's first seven laws, really after
the establishment of the People's Republic of China in 1979 on
July 1, illustrates this is a choice the Chinese have made
themselves. If they believe in their own propaganda, they have
to then follow the laws that they've created for themselves.
It just isn't on to say that we can violate our own
constitution because we're the final determiners of what it
means. That's an objective document that other people are
perfectly qualified to interpret and to call them out when it's
clear hypocrisy as to what the Chinese are actually doing with
regard to their own legal system.
But the fact that they decided to embrace law those three
decades ago indicates that there is a need to create, and China
did create, courts and lawyers to practice before them. So let
me just briefly note those two things. China revived a system
of courts that it actually had for a short period in the 1950s.
In fact, Professor Cohen's famous book about the criminal
justice system described what existed in lieu of formally
organized criminal courts in that brief period of embrace of a
Soviet legal model in the 1950s and early 1960s.
But when China passed these new laws in 1979, one of those
laws was an organic law for the organization of People's
Courts, and it made it clear that there was going to be a court
system, including a full hierarchy of trial courts, appellate
courts, and even a Supreme People's Court, that was going to
operate in a different way than the justice system had operated
previously.
But coming down to today, we can see that the court system
has been consistently underfunded, starved of resources. The
first judges, almost for two decades, were very poorly trained,
often demobilized military officers and former police
officials. You can just imagine what kind of justice a
judiciary made up solely of those sorts might mete out. It's
only really been in the last decade that legally trained
graduates of university law faculties are beginning to assume
important roles in the bench.
Just this past year, China removed a well-qualified,
highly-trained former chief judge, the Supreme People's Court
president, Xiao Yang, and replaced him with a totally
unqualified Party hack who has no legal training, Wang
Shengjun. As a result, the legal system is headed at the top by
someone who lacks genuine legal qualifications and commitment
to the rule of law, although we can guess from his Party
background what he's probably committed to.
Also, as for lawyers, China went from a handful, fewer than
a couple of hundred lawyers in 1979, many of whom had been
trained even before the 1949 Communist takeover, to a system
today that boasts somewhere between 130,000 and 140,000
lawyers.
But what do those lawyers do? What were they trained to do?
Here, I don't mean to unjustly criticize China. In this country
and many other countries as well, it's only a small handful of
lawyers who go into what we call pro bono representation,
representing unpopular causes, doing the Lord's work, so to
speak, in areas like dealing with human rights victims, taking
seriously violations of human rights, calling their own legal
systems to account.
It isn't lucrative, it isn't remunerative as law practice
in other areas can be. Even in countries other than China it
can be fraught with dangers, some not quite so dire as they are
in China, but dangers nonetheless, including possible threats
to the lawyers themselves and their families.
But in China, it's been pretty clear that they have moved
from a system where every lawyer was a state legal worker
working in a state-run legal advisory office to a system where
there are, today, private law firms. I was looking at the Web
site of one of them
yesterday that had offices or corresponding relationships on
five continents, every bit as big and all-embracing as the
largest multinational law firms based in New York or London.
It's clear that lawyers in China may be doing something
very different than what we might hope, at least a reasonable
representation of them would be doing with regard to protecting
their citizens' rights. And here I'll just tell you two
anecdotes that I think reveal what is actually been the rule
with lawyers' training in China.
I remember going when I was a young associate myself in New
York to an event at Columbia Law School that was organized by
our colleague, Professor Randle Edwards. He had hosted the
first group of Chinese who had come to be trained in law. This
was 1981. The legal profession hadn't really been
reestablished. None of these people had been trained as
lawyers, but they were going to be expected to return and do
law-related jobs in China. They spent four months at Columbia
Law School getting a very thorough introduction to American
law, and then they spent six months in New York City law firms
learning what lawyers did, shadowing senior lawyers, and seeing
a range of legal practice.
At the reception, the oldest of them, who later went on to
become the head of the All China Lawyers Association, a man
named Gao Zongze, handed me his card. The card had his name on
it, and underneath in English it said ``senior partner.'' I
turned it over to see what it said in Chinese, and the
translation was something like, ``high-class lawyer.''
[Laughter.]
I said, ``Mr. Gao, aren't you a little worried about going
around representing yourself as a partner? '' Chinese lawyers
don't practice in law firms. Law firms aren't partnerships.
There is no partnership law. He said, ``Well, I learned one
thing in the six months that I spent at my New York City law
firm.'' I was eager to learn what that was. I said, ``Oh
really? How interesting. What was that? '' He said, ``The only
people who get respect are senior partners.''
So, if that's what it took, that's what he was going to
call himself. He went on to quite a career as a practicing
lawyer in China, but I think that on his agenda, and on the
agenda of the organization that he headed, the human rights or
civil rights of Chinese citizens was quite low, maybe even non-
existent.
Likewise, I'd just mention, a few years later in 1991,
actually, when I went back with the leadership of the American
Bar Association to meet with our Chinese counterparts--it was a
visit much-delayed for two years because of what happened in
Tiananmen Square in 1989. We were meeting with people who
purported to be the organizers of the first genuine private law
firm in China. The firm is called Jun He, and it's gone on to
some prominence in Chinese legal practice.
The incoming president of the American Bar asked one of the
lawyers, a young man who had been trained at UCLA Law School
and obviously had some experience in the United States before
going back to China, whether or not someone like him or someone
from his law firm would take on the representation of the
various defendants that were accused of misdeeds in Tiananmen
Square.
He very quickly saw his opening, leapt up and said, ``No,
no. You have to understand that given the training that we've
had and all the advantages that we have and what we've learned,
having us do that kind of work would be like having a brain
surgeon do veterinary medicine.'' The room got very quiet and
the incoming president became very red-faced. He was a former
dean of the Florida State University Law School and a partner
in a Miami law firm. He said, ``I'm the incoming president of
the American Bar Association and senior partner at Steel,
Hector & Davis, and I do veterinary medicine.'' [Laughter.]
So the young man realized he had misstepped and tried to
pull back, but it was pretty hard to retreat.
In the few moments that are left to me, let me just tick
off the few things that I think are worth highlighting from the
center of my report that you have before you. The first is to
focus on the steps that the Chinese have been taking with
increasingly virulent results to try to discourage lawyers from
taking on these representations. It begins with harassment. It
leads, in some unfortunate cases, to severe beatings, some that
are permanently disfiguring and crippling to the Chinese
lawyers who experience them.
It has also involved detention and jail, the illegal
detention that Professor Cohen described with people such as
Gao Zhisheng, but also criminal charges and jail terms, totally
unjustified by all rights, and then recently this non-renewal
of licenses, which basically destroys the livelihood and any
future promise of these people returning to practice.
Likewise, the range of cases that I talk about in my
prepared remarks is remarkably broad and it doesn't even cover
the waterfront. You'll hear from other people on this panel
about things that I don't mention, but people who, for example,
took on representation of the Falun Gong, people who
represented other disfavored groups--some of them, by the way,
these representatives, these rights defenders, are not even
trained lawyers.
Hu Ja, who took on the representation of HIV patients, was
not a lawyer by training but has suffered the same kind of fate
because he took as his cause defending the rights of these
people because there are very few lawyers who are willing to
take them on as clients in China.
The absolute prohibition, really, by legal means of class
action lawsuits, a guiding opinion that was issued in 2006 that
basically says you have to get permission if you want to
represent more than 10 clients collectively, makes it
impossible for large groups of aggrieved citizens to get
together and seek legal representation. There are problems with
those who have tried to defend people who have suffered
grievous wrongs, for example, the tainted food and baby formula
cases, or the Sichuan earthquake cases--the parents, family
members of victims there.
The lawyers have been brought together and told in no
uncertain terms that they are not to represent these people,
that if they do represent these people there will be serious
consequences, and that they should think not of human rights,
civil liberties, or even provisions of Chinese law, but rather
creating a harmonious society and making sure that there is
national unity, doing nothing to damage the overall impression
that the situation is excellent and constantly improving.
So at the very last, I would just mention three things that
I think we should do. This goes a little bit beyond my own
prepared remarks' conclusion. First, is I think that the
American Bar Association and other bar associations, state and
local, and bar associations in foreign countries as well,
should voice their concerns about this, develop resolutions,
and make it clear that we have our counterparts in China and
we're concerned about them. I don't think that this has been
done enough to bring home the seriousness. China would respect,
for example, the prominence of American lawyers who occupy a
somewhat different and more protected position in their society
than lawyers do in China.
I think, second, the United States and other foreign
governments should make it clear through their foreign
ministries, through their ministries of justice, and also
through their congresses and parliaments, as Representative
Pitts has done here, that this is a matter of great concern to
political leaders and this is something that we will take
seriously in our future dealings with China if they don't make
some progress on this front.
Finally, I think that, as with fora like this here at the
Commission, that in every other place where we can possibly get
a hearing it's important to keep up the publicity and the
outreach to people who are in these dire circumstances in
China. I know Professor Cohen, for example, and a number of my
counterparts, law professors in the United States, have done
our best to try and make sure that we remain in contact in
whatever way we legally can with our Chinese colleagues,
especially those in the practicing bar who have experienced
these very severe repressions.
But it's hard, and it requires persistence. It will be
helpful to have a lot of other people doing this work as well
rather than relying on just a small group of interested people
who have been trying to carry out this enterprise under very
adverse circumstances for, unfortunately, a very long period of
time.
Thank you.
[The prepared statement of Mr. Feinerman appears in the
appendix.]
Ms. Oldham-Moore. Thank you, Mr. Feinerman.
Before turning to Bob Fu, at 11:10 we'll open the floor to
questions from the audience.
Bob, please begin. Thank you.
STATEMENT OF BOB (XIQIU) FU, FOUNDER AND PRESIDENT, CHINAAID
ASSOCIATION (CAA)
Mr. Fu. Thank you. Thank you for the invitation to this
panel with Professor Cohen, Professor Feinerman, and Mr.
Turkel. I very much appreciate the hard work and concern of the
CECC Commissioners, including Congressman Pitts and many
others, and, of course, the CECC senior staffers.
I have been involved with the training of human rights
lawyers, especially in the areas of international law, since
2004. We actually invited the first delegation, in 2005, to the
United States. We had some training with the NYU Law School.
Professor Cohen has been involved.
Recently I have been receiving many messages from lawyers
in China about their license cancellations or their licenses
have not been renewed by the Beijing Lawyers Association. This
is not only unnecessary and unjust, but also an unprecedented
development. As far as I know, that we can confirm, so far, 19
lawyers were already imprisoned and this year the 19 lawyers at
this time are unable to practice their law. They are: Jiang
Tianyong, Li Heping, Li Xiongbing, Li Fuchun, Wang Yajun, Guo
Shaofei, Cheng Hai, Tang Jitian, Yang Huiwen, Tong Chaoping,
Liu Guitao, Xie Yanyi, Wen Haibo, Liu Wei, Zhang Lihui, Zhang
Chengmao, Zhang Xingshui, Wei Liangyue, and Sun Wenbing.
These attorneys have always persisted in providing legal
assistance for clients to safeguard their legitimate rights.
The report I have seen, in an open letter to the Ministry of
Justice on July 2, most clearly explains the situation with the
license denials and points out the root problems and effects of
this on the national level.
This letter was written by 31 Chinese intellectuals, 23 in
Beijing, 7 in other areas in China, and 1 Australian. I request
that the full text of this open letter be entered into the
record.
Ms. Oldham-Moore. Yes.
Mr. Fu. Thank you.
I will read a few key points of this letter. It says,
We think this case is entirely a violation of the law.
As a social organization in the legal industry, the
Beijing Lawyers Association has no right to restrict or
deprive its members of their right to practice. In the
past, there were cases in which the Beijing Lawyers
Association deprived some human rights lawyers of their
qualifications to practice, but that was considered an
illegal overstepping of its authority. Now it has
forced many law firms to stop the practice and made
several hundred lawyers unable to practice, which is
all the more astonishing. Such illegal, absurd, and
perverse acts that violate common sense will bring
serious, bad consequences to society.
On July 18, 2008, the Ministry of Justice promulgated
management methods in attorneys' practice and
management methods on law firms which officially
annulled the annual registration system of the
attorneys. This time, the Beijing Lawyers Association
issued a notice and changed ``registration'' to
``register'' and totally disregarded the principles of
the Ministry of Justice in that the specific methods
for annual evaluation shall be provided by a Ministry
of Justice.
First of all, it will further worsen the environment
for rule of law in society by taking advantage of the
authorization from Beijing's Bureau of Justice and the
Beijing Lawyers Association suppresses and takes
revenge on human rights lawyers as it wishes. Most of
these attorneys are top-notch, outstanding attorneys
who have the highest awareness of the rule of law among
10,000 attorneys in Beijing.
Second, cancellation of licenses of a large number of
attorneys has undermined to a great extent the
strategic elements for building a harmonious society.
Third, canceling the right to practice of so many
rights defense attorneys is a provocation on the social
conscience.
The first part of my recommendation for the congressional
response is to base the response on this recommendation from
this open letter to the Ministry of Justice. It is a very
clear, straightforward framework on which I think U.S.
congressional response to Beijing can be based.
I will read part of this recommendation letter, the
recommendation from the open letter. It says,
It is our belief that as the highest traditional
administrative organ of our country, the Ministry of
Justice should not ignore such a violation of law by
the Beijing Municipal Bureau of Justice and the Beijing
Lawyers Association, worsening the environment for rule
of law, undermining the social harmony, and challenging
the social conscience.
We hope the Ministry of Justice can, in the principle
of upholding the spirit of the rule of law as proposed
at the 17th People's Congress, order the Beijing
Municipal Bureau of Justice and Beijing Lawyers
Association to withdraw their decision, correct their
mistakes, and restore the rights lawyers' right to
practice, and apologize to the people in various
circles of life so as to solve this problem in a fair,
reasonable, and legal way.
I appreciate the clear statements in this letter which
really explains not only their concern, but also the national
effects of these licensed denials. The effects which ultimately
concern--especially because unfortunately they show an utter
disregard for the rule of law by the largest country in the
world.
One question to be addressed by this panel is, what is the
relationship between these lawyers, the Chinese Government, and
the Chinese Communist Party? This brings up an intriguing point
because these human rights lawyers have been moving forward
according to the proposal from the 17th People's Congress to
promote the spirit of the rule of law and the realization of
the rule of law in various jobs of state.
A simple list has been compiled of each lawyer whose
license has been revoked or not renewed and the important
incidents and the cases the lawyers have been involved with,
and the categories mentioned in this list, including the
poisonous milk incident, the abnormal deaths while the victim
was in custody, representing house churches and Falun Gong
practitioners, and reeducation through labor cases, the rights
of migrant workers and ethnic minorities, and rights of HIV
patients, and the cases of underground brick kilns in Shanxi
Province.
Which of these cases should the government shrink from
having represented by a professional lawyer? Does not rule of
law necessitate the vulnerability to transparency? Transparency
and the rule of law, in some of these cases, might necessitate
acknowledgement of unjust measures or inappropriate use of
authority. That is unfortunately a consistent possibility in
any government because of human nature. What is not a necessity
or acceptable is repression of lawyers who are implementing the
rule of law.
So, I will mention briefly about Gao Zhisheng's case.
Professor Cohen already mentioned it, but we have launched a
campaign called FreeGao.com, a campaign since March. So far, we
have received over 102,000 signatures up until today, from
Bosnia to Saudi Arabia, from Turkey to Zimbabwe. People from
all over the world signed to urge the Chinese Government to
tell us where Gao is and what his condition is about.
So of course, these developments strengthen the play of the
U.S. Congress, to publicly affirm the truth and justice,
investigate these issues. I understand, after meeting with the
chairman, Congressman Jim McGovern, who is the chairman of the
Tom Lantos Commission, he will write a joint letter, along with
a Member of Congress, today or tomorrow to send to the Chinese
Ambassador to ask the whereabouts of Mr. Gao.
Finally, I want to urge the Obama Administration officials
and the senior U.S. diplomats at the Embassy in Beijing to
publicly, regularly, and frequently meet with these freedom
fighters in and outside China when they are available.
Ms. Oldham-Moore. Thank you.
Mr. Fu. Thank you.
[The prepared statement of Mr. Fu, the Open Letter, and the
Final Compiled Translated Lawyers' Statements appear in the
appendix.]
Ms. Oldham-Moore. The ChinaAid Association has done a
tremendous job raising the profile of the Gao case on the Hill.
Thank you.
We're delighted to have Congressman Wu with us. It's nice
to see you, sir. He's just rejoined the Commission this year.
So, we're delighted to see you here today.
Now at this stage in the proceedings we open it up to the
audience for questions.
Congressman Wu, would you like to say something?
Representative Wu. No. I think I will----
Ms. Oldham-Moore. I think we hijacked you.
Representative Wu. I will listen very happily to the Q&A
for as long as I can before my next obligation.
Ms. Oldham-Moore. Terrific. Thank you so much. The first
question from the audience. Do we have anybody? Yes, sir; in
the front.
Audience Participant. Thank you. Mr. Feinerman, you've
commented that you felt it was necessary that American lawyers,
bar associations, and so forth get involved in this process to
try to help the situation, rights defenders. I've been trying
to work on that for about a year now with Dr. Fu and we're not
having a lot of success. Do you have any suggestions on how we
get these bar associations to come on board and understand that
lawyers across the world are our brothers and sisters and that
we need to let them know that we will stick with them?
Mr. Feinerman. Well, I have two practical suggestions based
on my own experience doing this. Twenty years ago in the
aftermath of Tiananmen, we did get the American Bar
Association, as well as the New York City Bar, to make
statements that were formal resolutions adopted by the Bar
Association and such about what happened in the aftermath then.
I think that the time has come to try and refire those sorts of
connections.
Bar associations in general usually have two ways of doing
this. One is to contact the top bar leadership, the executive
director or whoever is in charge of the bar association, and
try and get a resolution on the table, usually at their annual
meetings, but sometimes they can do it outside of that forum as
well.
Then second, they almost all have at least one committee,
and sometimes multiple committees, that are involved with
questions of human rights, contact with foreign bars. The
American Bar Association, for example, has as one of its
enumerated goals Goal VIII, which is fostering the rule of law
around the world. So, there is a Goal VIII group inside the
American Bar Association, but there is also a separate
committee on individual rights and responsibilities.
The Section on International Law has a China law group,
although because of their interest in pursuing practice and
contacts with China and clients both in the United States and
China who want to stay on the right side of the government,
they may not be your first point of contact or your best ally
with regard to this.
But I agree, there are like-minded people in these
organizations, even in the China law subcommittees, who would
say that this has reached such a stage and the conduct is so
outrageous, that we believe a general statement that talks
about the kinds of concerns that lawyers abroad have for their
counterparts in China is certainly well within the limits that
even a restrictive government might place on those kind of
undertakings.
Ms. Oldham-Moore. Thank you.
Yes, sir? Congressman Wu, then Jerry Cohen, I know, wants
to say something.
Representative Wu. If I may just add a point to that
response. I'll just speak up a little bit. When we were dealing
with the Pakistani situation where lawyers were taking such a
leading role, I found that law schools were especially valuable
venues and many of the deans were quite amenable to contacting
their faculty. One might find a little bit more hesitation in
those law schools that have extensive programs in China, but I
think that the academic community is a good source of help in
addition to the bar organizations.
Thank you.
Ms. Oldham-Moore. Thank you.
Professor Cohen?
Mr. Cohen. I think those ideas we just heard from both
speakers are excellent. Committees have formed in various
places to try to be helpful. Hong Kong has taken the lead with
its human rights lawyers group to support Chinese human rights
lawyers. The Taipei Bar Association and the Taiwan Bar
Association have been supportive. The International Bar
Association has just issued a good statement about the problems
of Chinese lawyers. In New York, our city bar association has
an active human rights committee and a committee on Asian law
that are concerned.
A group of us in New York last year formed a Committee to
Support Chinese Lawyers that is centered at Fordham University
Law School's Leitner Center. It does just what the Congressman
has said should be done. The American Bar Association [ABA], of
course, does very good work in Chinese law reform, including
human rights, criminal justice, lawyers' problems, and that is
to be commended. NYU Law School cooperates closely with the ABA
in this respect.
I think our deans and our university presidents have to
seize more occasions. For example, this year there will be a
number of anniversaries of Chinese law schools being
established 30, in some cases, 100 years ago. American deans
are invited. I think, instead of passing up those occasions,
they should participate and make very strong statements about
the importance of protecting human rights lawyers and the
importance of protecting law faculty people who not only teach,
write, and publish to the extent they're allowed to, but often
take part in active cases and therefore suffer sanctions. So I
think this is a very good question to have raised.
Ms. Oldham-Moore. Thank you.
Next questioner. Jim Geheran is up next.
Mr. Geheran. Hi. Jim Geheran--questions to Professor
Cohen--lawyers do not--characterize--the situation in China.
One of the issues that I see before us as--China is that our
foreign policy tends to compartmentalize the issue of human
rights and we fail to see--to make human rights the centerpiece
of our foreign policy in regard to--this morning--essentially
exists in terms of, without the rule of law--make a conforming
argument to support the statement that--that the world
community should not rely on countries who do not rely on their
own citizens.
Ms. Oldham-Moore. Okay.
Mr. Geheran [continuing].--That statement really supports--
--
Ms. Oldham-Moore. Thank you.
Professor Cohen?
Mr. Cohen. Well, we have witnessed the struggle of every
new Federal administration in this country to adopt an
appropriate human rights policy, one that will be good across
the board, that is not selectively applied. One complaint China
has sometimes justifiably made is that we're very selective in
our targets for human rights. We neglect many of our friends,
so-called, for their human rights violations but we focus only
on certain other countries. So, consistency is important.
Second, our own behavior is crucial. I think one of the
most profound things anybody has ever said was the Scottish
poet Robert Burns, who said, ``Oh wad the Lord, this giftie gie
us to see oursels as ithers see us.'' Our own conduct,
especially recently in the Bush Administration, the second Bush
Administration, has made us very vulnerable to charges of
hypocrisy when we start to point out the human rights
weaknesses in other countries.
I think one good thing China has done is to issue an annual
human rights report on U.S. Government behavior. As long as
it's factual, I think it's very helpful. If it's merely
propagandistic, one-sided, et cetera, then it isn't. But we all
benefit from criticism of that nature. Our own conduct is very
important.
Now, we've watched Secretary Clinton try to come to grips
with the question, where does human rights in China fit into
our broader China needs, because we need Chinese cooperation
just as China needs our cooperation? I'm hoping to see a more
vigorous, case-oriented discussion between the United States
and China and one that will include not only government
officials from both countries, but also non-officials who are
more specialized, who have more knowledge than officials.
This Commission could recommend an idea that was floating
around the State Department at the end of the second Bush
Administration, which would be to initiate a real human rights
dialogue, one that discusses concrete cases. Chinese officials
love to talk in the abstract. They don't like to deal with
concrete cases. In the extreme case of Gao Zhisheng, we see
they're not prepared to tell the truth even if they choose to
respond on concrete cases, but I think this would be important
for the Commission to encourage that kind of dialogue.
Ms. Oldham-Moore. Thank you.
Kara Abramson, please.
Ms. Abramson. Thank you. Kara Abramson with the
Congressional-Executive Commission on China. I will direct this
question to Mr. Cohen.
I understand the sensitivities of working on an issue like
Xinjiang, which you raised in your testimony, but many issues
are sensitive. Falun Gong is sensitive, and yet lawyers take on
cases defending Falun Gong. So my question is, as rights
defense lawyers pursue sensitive cases despite the risks, why
are they not actively pursuing cases involving Xinjiang. I
recognize that cases involving issues like separatism are
extremely sensitive, but I wonder if there might be areas where
there is room to push the envelope, such as cases involving
employment discrimination based on ethnicity. I am interested
in hearing your thoughts on that, please. Thank you.
Mr. Cohen. There are lots of needs in China for lawyers
that are not yet being filled. You're pointing out some of
them. Labor law is an opportunity. There are a number of firms
operating not only from the management side, but from the
migrant labor, the human rights, side. But there is much more
that can be done.
Environment. Think of all the environmental challenges
China confronts and the role that litigation might assume.
Litigation that is happening is interesting, important, but
merely a drop in the bucket. Every issue you turn to needs much
more Chinese legal talent. The problem is how to create the
conditions that make it attractive, not merely permissible, for
lawyers to take part in these matters.
Professor Feinerman has alluded to the fact that most
lawyers in China are not big moneymakers. There are some firms
that do very well. They charge international-type fees, but
they're a minority. Most lawyers are struggling to make a
living. We have to
figure out ways of making human rights practice possible, like
compensating lawyers for successful environmental litigation or
successful labor litigation. These ideas are gradually
developing.
So there's a law practice area between a commercial
practice with no political implications and a human rights
practice that deals with things that are highly sensitive, like
Falun Gong or democracy. There's quite a broad area of
important cases, including open government information, where
the Chinese Government is not necessarily going to be
oppressive and where it increasingly will see the benefits of
having law and lawyers.
Ms. Abramson. Thank you. Do you think that as this space
you've discussed opens up, there will be more of an interest in
pursuing cases in Xinjiang, particularly in less sensitive
areas like employment discrimination?
Mr. Cohen. As has been pointed out, the attempt to use
lawyers in Xinjiang, Tibet, Mongolia, these highly sensitive
so-called ``separatist'' areas, has proved to be very
difficult. The Communist Party is led by people who do not have
much understanding of the rule of law. Even Li Keqiang, a
member of the Politburo Standing Committee who is a graduate of
Peking University Law School in the class of 1982, has not
taken a law reform role.
The people who run the legal system are police and Party
activists who reflect their experience. The head of the Chinese
Communist Party Central Political Legal Committee is the former
Minister of Public Security. He doesn't know much about law,
but he knows what he likes. What he likes is ``harmony.'' They
are quick always to use repression as the way to give the
appearance of harmony.
The new head of the courts is not a legal specialist but a
party person who is there to reinforce party controls on the
courts. The new head of the Ministry of Justice is a Party
Apparatchik, a nice woman who really hasn't got much interest
in the kinds of problems we're discussing today or much
sensitivity about them. This is too bad.
So the prospect immediately after the 17th Party Congress
has not been good for promoting the kinds of things we
eventually hope the Party leadership will come to see. There
will someday be leaders in the Standing Committee of the
Politburo of the Party who will see the importance of better
legal institutions to stability, to harmony. We've been through
this in South Korea under General Park. We've been through this
in Taiwan under Chiang Kai-Shek. Dictators always talk about
stability and therefore the need for repression, but eventually
modernization comes, education, many other factors, and we see
their successors take a more enlightened view. In the Communist
system you never know what the highest leaders will do until
they become the highest leaders.
Nobody knew what Khruschev would do before he introduced
de-Stalinization in 1956. Nobody knew what Gorbachev, who was
trained in law, would do based on his previous record until he
got to the top. Someday there will be leaders in China's
Politburo who will try to do for law what Zhu Rongji did for
economics and economic reform. We have to rely on that. There's
enormous support for law reform and better legal institutions
in the Chinese people now, especially the poorer people, the
disenfranchised people, not the elite. Bourgeois law in the
West has always resulted from the rising bourgeoisie. In China,
the rising bourgeoisie, the entrepreneurs, resort to other
methods. They are benefiting from the system. They don't want
to use law, they use connections, they use money, et cetera.
I remember asking the businessman-husband of a Chinese
judge I knew: ``Do you ever use lawyers? '' He said, ``No.'' I
said, ``Why not? '' He said, ``I don't need them for
contracts.'' I said, ``What about disputes? Don't you have
disputes? '' He said, ``I have a lot of disputes. But why would
I use lawyers for disputes? My wife is a judge.'' [Laughter].
Ms. Oldham-Moore. Thank you.
Jim Feinerman, please.
Mr. Feinerman. This is just a footnote on the question
about lawyers in Xinjiang. I think there is a problem here both
with ethnicity and language that needs to be recognized. The
problem is a tri-fold one. On the first point, there are
probably very few lawyers trained in Xinjiang, Tibet, or other
ethnic minority regions in China who represent their own
people, so having to rely on Han lawyers creates a problem.
Second, the capacity of these areas in terms of courts and the
ability to allow people to access the legal system, even having
a well-staffed bar in those localities, is very poor compared
to the rest of China, and that may be purposely so to limit the
kinds of claims that people in those areas might make.
Then finally, I think it is going to wait until people rise
up from these groups to assume their place. In the United
States, we had the great civil rights revolution that we had
largely because we had black lawyers who were pursuing a cause
that they were personally very invested in.
With Thurgood Marshall arguing, you get a kind of
representation that I think--even though very capable white
lawyers were working behind the scenes and up front with the
National Association for the Advancement of Colored People
[NAACP]--other groups just couldn't do. I think that that is
what has to happen in China for those groups, those ethnic
communities to sort of feel that they have genuine access to
the legal system.
Ms. Oldham-Moore. Thank you. We're going to go for 10 more
minutes.
Audience Participant. Good morning. Thank you for allowing
me. My son has been----
Ms. Oldham-Moore. This is a question?
Audience Participant. Yes.
Ms. Oldham-Moore. Thank you.
Audience Participant. My son has been imprisoned in China
since March. We were just informed by the U.S. Consulate, so
this is a very personal nature and I prefer not to introduce
myself in a public forum.
So the question is, is there a lawyer somewhere that can
help our son be repatriated to come back home to the United
States? We have the U.S. Consulate able to visit him once a
month so far, but the letters that he has written us have been
blocked from our eyes. Several Chinese lawyers have written to
him, asking to represent him, but the prison authorities have
blocked him from receiving those letters. So, there is only so
much the U.S. Consulate can do. How do we proceed in the face
of what this panel can share? Perhaps Professor Cohen,
Professor Feinerman, or anyone would have a suggestion.
Ms. Oldham-Moore. It's a complex question, and I've talked
to your husband about this. Her son is in jail in China. She's
having difficulty getting access to counsel. Her son has had
consular access, with a good consulate officer. What should she
do next?
Mr. Cohen. Well, if you need help finding a good Chinese
criminal lawyer, certainly some of us can make suggestions.
That's the first thing one does. You're already getting the
active help of the American Citizen Services Unit within the
Embassy, I take it, or the local consulate. But the first thing
is to try to secure Chinese legal advisors and then work with
them.
Audience Participant. It's really hard to know how to pick
a Chinese lawyer, given all the things you've discussed about
the limited role that they play and the limited freedom they
have to practice their law. How do we, from here, pick one?
Mr. Cohen. There are people who have lots of experience in
this field, unfortunately.
Audience Participant. That's wonderful. Thank you.
Ms. Oldham-Moore. Yes. Thank you.
Mr. Feinerman. Can I just add one thing about this?
Ms. Oldham-Moore. Yes.
Mr. Feinerman. This is not an uncommon experience,
unfortunately. Professor Cohen and I were just quoted yesterday
in an article in the Wall Street Journal involving business
people who have been detained basically because contract
negotiations didn't turn out in a way that was favorable to the
Chinese party, and the solution was to imprison a Chinese who
had foreign nationality, but was originally born in mainland
China, and three Chinese employees, and basically say you're
going to get out when we get the deal that we want.
This is a big, multinational company that has access to
high-class legal representation, has probably already retained
lawyers both inside and outside of China to deal with this. So
I wish I could offer you more consolation in that this thing
will be resolved very quickly, but as you already know from
your experience to date, this is something that can drag on for
quite a while.
It seems that justice will not be forthcoming, although
sometimes the one word of positive advice I can provide is that
if there's a pretext that allows a kind of face-saving way out
for the Chinese, such as a medical condition that justifies
parole or something like that, that often--so if your son has
anything from diabetes to serious acne, I would say, start
working that for all that it's worth, because that may be a way
to say, we call on your mercy for medical leave. It's sort of a
subterfuge and it doesn't address the underlying injustice of
the system, but your main goal now probably is getting your son
out and home.
Audience Participant. Right. Thank you so much.
Ms. Oldham-Moore. Thank you. Thank you.
Professor Cohen, some last remarks, then we'll close down.
Mr. Cohen. Yes. The first thing, and what you say makes me
recognize the importance of stating it, is what kind of a case
is it? If it's like this Australian case in which Rio Tinto
executives are involved, the first question is, is it a ``state
secrets'' case? If the State Security Agency or the Public
Security Agency decides to call it a ``state secrets'' case,
then the lawyer has no access unless the police agree to it,
and usually the police don't until their investigation is over.
It may take many months. At the point that their investigation
is over and they recommend prosecution, often a lawyer can't do
too much, and certainly is very limited.
One of the troubling aspects of the Chinese system is that
there is no effective means for challenging the ``state
secrets'' claim of the investigators or the certification by
the National State Secrets Bureau that any documents or
information involved are indeed state secrets. That is why I
hope that, in the revision of the state secrets law that is
about to occur 20 years after the first one came into being,
there will be some improvement, but it's not clear that that
will be the case.
Second, we need to consider the question of fairness, of
how universal are standards of what we call ``due process.''
China now is awash in nationalism. There is a new Chinese
pride, a new feeling of, ``we don't need these foreigners to
tell us what to do, we'll do it our way.'' In principle, this
may sound attractive, but in practice, in detail, what does it
mean for fairness, for due process for a legal system? Will it
meet at least the minimum standards of the world community?
What do China's leaders and people want in this respect?
I was just reading the memoir of Zhao Ziyang, who was,
after the 1989 Tiananmen incident, put under de facto house
arrest that lasted for 16 years, the rest of his life. What
struck me was, although the press and the world rarely focused
on this aspect, this was a case, of course, of administrative
detention with no legal authorization. Law reformers generally
worry about Chinese citizens losing their freedom for three
years under ``reeducation through labor.'' Zhao in effect got a
life sentence with no legal process whatever.
Zhao Ziyang was the leader of China. He was Prime Minister.
He was the boss. He was head of the Party, and a highly
intelligent man who did a lot of good for China. When you read
his memoir, you see the reaction of a Chinese leader to a total
denial of due process. Zhao never went to law school, but he
had no trouble recognizing in his own case that he wasn't given
an adequate statement of the charges against him. He wasn't
given anyone to advise him, to defend him. He wasn't given an
opportunity for the hearing that he kept requesting.
He wasn't given a statement of reasons of why he was being
confined in this way and deprived of his rights under the Party
Charter, as well as the national Constitution. When it happens
to you, even if you're Chinese and the highest leader of the
Party, or used to be, you have no trouble seeing a denial of
due process of law, of fairness. These are universal values and
demands.
When farmers in 1958-1959 had their property taken away
from them--kitchen implements, doorknobs, even--so that China
could have metal for backyard furnaces to produce steel that
was to enable China to overtake England--it was a crazy ``Great
Leap Forward'' idea, of course--they knew, with no education at
all, that they had been denied property unfairly. Most Chinese
are like most of us when it comes to deprivation of liberty or
property.
We should respect China's call for recognition of its many
virtues and accomplishments. On the other hand, what kind of a
legal system is it going to have? If China's leader's say they
will have their own, fine. But what is it, and how fair is it
in the eyes of the Chinese people? That is the question that is
still before the house 30 years after the initiation of the
``open policy.''
Ms. Oldham-Moore. Thank you, Mr. Cohen. There's not much
else to say after that, except, thank you very much, Bob Fu,
Professor James Feinerman, Professor Cohen, and also to our
staff person, lead staffer on criminal justice issues, Andrea
Worden, who was instrumental in putting this event together,
but has a bad case of the flu and could not be present the
entire time today.
Thank you for coming. On July 30 the CECC will host another
roundtable on press freedom. Jocelyn Ford from the Foreign
Correspondents Club in China and her colleagues will be here,
so it should be very interesting.
Thank you very much. [Applause].
[Whereupon, at 11:40 a.m. the roundtable was adjourned.]
A P P E N D I X
=======================================================================
Prepared Statements
----------
Prepared Statement of Jerome A. Cohen
july 10, 2009
I am delighted that the Congressional-Executive Commission on China
is devoting today's Round Table to a discussion of China's human rights
lawyers.
law without (human rights) lawyers?
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 modernization, 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 twenty months since the 17th Communist Party Congress.
The reconfirmed Hu Jintao-Wen Jiabao leadership placed veteran Party
officials, without legal education or 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
organizers and Falun Gong or ``house church'' worshipers, 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 labor 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.
Lawyers who fail to heed such ``advice'' suffer many sanctions.\1\
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 organizations within law firms have been reinforced.
---------------------------------------------------------------------------
\1\ 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).
---------------------------------------------------------------------------
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 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 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.'' \2\
---------------------------------------------------------------------------
\2\ The above remarks are a slight expansion of an article that I
published in the July 9, 2009 South China Morning Post in Hong Kong and
China Times in Taiwan (in Chinese). See www.usasialaw.org.
---------------------------------------------------------------------------
three related aspects
Before closing, I should mention three other aspects of today's
topic that deserve Commission 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.
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, 156 days ago, ``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 defense lawyers.\3\ 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 defense
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.
---------------------------------------------------------------------------
\3\ See, e.g., Jerome A. Cohen, ``Law in Political Transitions:
Lessons from East Asia and the Road Ahead for China,'' July 26, 2005,
http://www.cecc.gov/pages/hearings/072605/Cohen.php.
---------------------------------------------------------------------------
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 sixty years after establishment of the People's
Republic!
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 labor''
(RETL), which authorizes 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 RETL, has occasionally
experimented with allowing lawyers to take part in RETL proceedings,
but generally they are excluded. Usually, the lawyer's only possible
role is to assist people who have already been sent off to RETL
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 utilize
legislatively-authorized procedures for entertaining Constitutional
challenges, lawyers have not succeeded in demonstrating RETL'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 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 emphasized 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 organized by Wang
Chenguang, former Dean of Tsinghua Law School, with Ford Foundation
support. Certainly the issue deserves empirical research and greater
attention.
I hope that these brief introductory remarks are useful and look
forward to the presentations of my colleagues and the subsequent
discussion.
______
Prepared Statement of James V. Feinerman
july 10, 2009
This month marks the 30th anniversary of the path-breaking decision
of the People's Republic of China (PRC) to turn its back on almost
three decades of Maoist antinomian rule and to embrace publicly a new
role for law in China's governance. On July 1, 1979, the PRC government
promulgated seven new laws--including a criminal code, criminal
procedure code and a law on Sino-Foreign Equity Joint Ventures--
indicating a new determination to use law in the promotion of the PRC's
opening to the outside world and domestic economic reform. Thus it is
appropriate that the Congressional-Executive China Commission convene
this hearing today to consider the current state of development of
China's legal system and the legal profession which serves it.
As members of the Commission already know, China's Communist Party
under its current leadership emphasizes building a ``harmonious
socialist society.'' One of the stated key components of this project
has been enhancing the rule of law. Despite considerable progress over
the past almost three decades, China today is hardly a ``rule of law''
society by Western lights. Unfortunately, for the past several years
and even in recent months, activist lawyers, intrepid journalists and
those who take on unpopular causes, or represent the disadvantaged and
unfortunate, are arrested, intimidated, and silenced. China's nascent
bar and weak, poorly trained judiciary offer scant promise of redress.
Why then should we be so concerned with the development of law and
the somewhat fitful improvements of the Chinese legal system? Well,
from China's perspective, establishing the ``rule of law'' is critical
to China's political stability and further economic growth. We should
not forget that this process of legal modernization began on the heels
of a devastating, decade-long Great Proletarian Cultural Revolution.
This was a time of great disorder in every aspect of Chinese society.
The leaders who set China on its current course were, many of them,
also victims of the rampant lawlessness and political insanity of that
era. So their interest in reform and legality was keen, even if China
lacked the usual societal underpinnings for the ``rule of law''
concept.
If by ``rule of law'' we mean a system where law restrains state
and private power, subjecting even the rulers to its limits, China is
still far from realizing such a system. The top leadership--not only in
the national and lower-level governments--but more importantly in the
all powerful Communist Party are very unlikely to accept such
constraints in the foreseeable future. Consistent rules, independent
courts and a powerful bar to protect civil and political rights will be
a long time coming. Market economy legal rules, on the other hand, have
been drafted and put into place much more quickly. Administrative rules
to rein in the bureaucracy (and to attempt to force it to follow
central government dictates) have been developing apace.\1\
---------------------------------------------------------------------------
\1\ Jamie P. Horsley, ``Rule of Law in China: Incremental
Progress,'' in C. Fred Bergsten, N. Lardy, B. Gill & D. Mitchell, The
Balance Sheet in 2007 and Beyond. Center for Strategic and
International Studies and The Peterson Institute for International
Economics, 2007.
---------------------------------------------------------------------------
Despite this mixed picture, anyone who (as I did as a participant
in the initial student exchange program) saw the reality of China in
the late 1970s--when the legal reform developments began--must admit
that China has indeed made a ``new Long March'' from the Maoist era
``rule of man'' and rampant lawlessness of the Cultural Revolution.\2\
---------------------------------------------------------------------------
\2\ Randall Peerenboom, China's Long March Toward the Rule of Law,
Cambridge University Press, 2002.
---------------------------------------------------------------------------
historical background
At the famous Third Plenum of the Eleventh Communist Party Congress
in December 1978, Deng Xiaoping not only opened China to the world and
decreed its economic reform but also called for a rule of law. Since
that time, there has been an exponential growth of national
legislation, provincial and local lawmaking, and accession to
international treaties and institutions. China's entrance to the World
Trade Organization (WTO), by itself, required the promulgation of
thousands of laws and rules.
Institutions of national scope, such as the National People's
Congress (NPC) and its Standing Committee, the State Council, the
Supreme People's Procuratorate and the Supreme People's Court were
either revived or re-established. Over time, they have become much more
professional than they were not only thirty years ago but even ten
years ago. Throughout China, a small coterie of lawyers and legal
reformers promoted legal change and protection of basic rights. Legal
aid has become--at least theoretically--available to China's citizens,
some of whom avail themselves of such assistance and even make use of
the media to assert their rights and try to achieve their objectives
even against the government.
Nonetheless, the Communist Party remains in ultimate control; more
significantly, the Party and its leadership remain outside the reach of
the law, relying upon Party discipline and other mechanisms to maintain
a separate superior status. The government bureaucracy--including the
courts and other legal institutions--are dominated by Communist Party
appointees at every level, despite some autonomy for independent actors
to develop the rule of law.\3\
---------------------------------------------------------------------------
\3\ Xin Ren, Tradition of the Law and Law of the Tradition: Law,
State, and Social Control in China, Greenwood Press, 1997.
---------------------------------------------------------------------------
a preliminary note on china's courts
Continuing political interference by the Communist Party insures
that China's judicial system is far from enjoying the judicial
independence that other legal systems take as axiomatic. The
implications for legal practice and protection of citizens' rights are
ominous. The replacement of the former President of the Supreme
People's Court, Xiao Yang, by a man who not only lacks legal training
but has long been a Communist Party hack has set back efforts to
improve the quality of judges and reform the judiciary. Poorly training
and meager compensation of judges leads to corruption which plagues the
court system, diminishing its respect and prestige among the Chinese
public.
It is also worth noting that China's courts not an independent
branch of government. The Standing Committee of the NPC has the final
authority to interpret national law. Communist Party adjudication
committees inside the courts oversee the work of the judges,
particularly in politically sensitive or important cases. Judicial
independence is non-existent in China.\4\
---------------------------------------------------------------------------
\4\ Benjamin Liebman, China Quarterly, Vol. 191, pp. 620-638
(September 2007).
---------------------------------------------------------------------------
what role for the legal profession?
The modernization of the PRC legal system has required a massive
training effort to increase the quantity and the quality of legal
professionals. These new lawyers have many roles: to familiarize the
general public with the emerging legal system; to draft and to improve
the laws themselves; and to serve in government and the private sector
as practicing attorneys. Having begun with fewer than a thousand
lawyers and less than a dozen law faculties when it began legal
modernization in 1979, China now boasts over 130,000 lawyers (with a
stated goal of having 150,000 qualified lawyers by 2010) and--depending
on how they are counted--anywhere from 400 to 600 law faculties.
Compared to the United States and other developed countries, the number
of practicing lawyers in China is quite low on a per-population basis,
the rapid growth of the bar is remarkable. Many obstacles stand in the
way of creating a truly independent legal profession in China. Through
the All China Lawyers Association and local-level organizations, PRC
lawyers are subjected to Party discipline. The Ministry of Justice and
local judicial bureaus exercise strict ``supervision and guidance''
over practicing lawyers and judges. Nevertheless, a few fearless
lawyers and legal scholars have taken courageous positions, often
contrary to government and Party dictates, to pushing for legal changes
and greater ``rule of law'' in China.\5\
---------------------------------------------------------------------------
\5\ Gerard J. Clark, ``An Introduction to the Legal Profession in
China in the Year 2008,'' Suffolk University Law Review, Vol. 41, p.
833 (2008).
---------------------------------------------------------------------------
Along with the increasing number of lawyers, legal education
institutions have also mushroomed in China since 1979. While these new
faculties have the potential for advancing the ``rule of law'' in
China, many are simply riding a wave of interest rooted in careerism as
the profile of law and the legal profession has risen. Law is seen as a
lucrative career path for those who pursue certain avenues, as it is in
many developed countries. With a hidebound curriculum controlled at the
national level by the Ministries of Education and Justice, law schools
are usually not too adventurous in training their graduates to consider
what might be characterized as ``public interest'' law. While some,
mostly elite, law faculties have introduced clinical legal education,
combining hands-on representation of clients with classroom
instruction, such programs have had limited impact in communities
beyond their immediate environs. A few leading law faculties have also
established research centers for topics of great public interest--such
as worker and consumer rights, women's status in society and the rights
of the disabled and disadvantaged--but these programs have so far
induced very little change in the larger societal and legal problems
facing Chinese society today.\6\
---------------------------------------------------------------------------
\6\ Pamela N. Phan, ``Clinical Legal Education in China: In Pursuit
of a Culture of Law and a Mission of Social Justice,'' Yale Human
Rights and Development Law Journal, Vol. 8, pp. 117-152 (2005).
---------------------------------------------------------------------------
The role of legal academics in the PRC has also been constrained by
political
realities. While many Chinese legal scholars have studied abroad in
countries with more developed legal system, their new ideas about law
and legal reform often present a source of controversy in China. Their
assistance may be sought in certain narrow areas of legal drafting, but
their ideas are often quite suspect when it comes to policymaking. Even
when local people's congresses and government legal affairs seek
scholars' input, they remain more likely to accept the advice of
private law firms and lawyers' associations as more practical. There
has been a limited program to employ a few law professors as
consultants to governments, but law professors and lawyers are far less
likely to work for government agencies than is the case in the United
States or other countries. Given the relative lack of legal expertise
in most government sectors, and the growing need for legal advice in a
society with the stated goal of basing government actions on law, the
need for legal professionals to advise the government is obvious. The
likelihood that the need will be filled is less certain.
Unlike their counterparts in the United States, Chinese lawyers
have very little direct engagement in politics. While a few lawyers
serve as local people's congress deputies and on people's political
consultative congresses, their impact thus far has been quite limited.
Presumably, their legal expertise could help to professionalize the law
drafting and other work of these legislative bodies. At the national
level, it will be interesting to see whether the ascent of a legally
trained leader, Li Keqiang, who is likely to become China's next
Premier several years from now will have an impact on the involvement
of other lawyers in Chinese political life.
As is true in many other countries, the vast majority of China's
law graduates go to work as private lawyers. Nevertheless, a few seek
to represent the underrepresented groups in Chinese society. Criminal
defendants are supposed to be given legal assistance as a matter of
national law. With the assistance of various foreign and domestic
organizations (including the United Nations Development Program and the
Ford Foundation), legal aid clinics have been sponsored to assist
disadvantaged citizens, rural migrants and people with disabilities.
Legal aid has become firmly rooted in China's changing legal culture
and has helped to raise rights consciousness among sectors of society
that have not had much access to the formal legal system in the past.
Over a thousand centers have opened in cities across China and are
estimated to employ several thousand full-time legal aid workers at a
considerable cost to the government. However, these seemingly
impressive figures may conceal more than they reveal. Researchers have
discovered that these centers often have no real substance and no
dedicated employees but rather are often local government offices of
the Ministry of Justice with new signage. Moreover, the number of
people actually receiving legal aid has not grown at the same rate as
expenditures on legal aid which grew more than five-fold from 1999 to
2003, while the number of people receiving legal aid only increased by
fifty percent. Despite considerable progress, experts continue to
lament the shortage of funds and low access to legal aid.\7\
---------------------------------------------------------------------------
\7\ Xu Jianxin, ``Justice and the Need for Legal Aid NGOs in
China,'' China Rights Forum, No. 3, pp. 71-73 (2005).
---------------------------------------------------------------------------
The reluctance of Chinese lawyers to pursue unconventional areas of
practice may be explained by the consequences for those who find
themselves in opposition to state and Communist Party. A series of
cases over more than a decade have demonstrated that those who
undertake criminal defense or politically sensitive cases may face dire
consequences. Some criminal defense lawyers have been accused and
convicted on trumped up charges of falsifying evidence or committing
perjury. Others have been accused of revealing ``state secrets''--often
nothing more ``secret'' than newspaper clippings or published maps.
This may result in the loss of their jobs and the suspension or
cancellation of their licenses to practice law. Just these past few
months, the Chinese government has been forcing human rights law firms
to shut down. This has not involved a formal crackdown; authorities
have not seized files or sent attorneys to labor camps. Instead, the
justice authorities are simply using administrative procedures for
licensing lawyers and law firms, declining to renew the annual
registrations, which expired May 31, of those it deems troublemakers.
Human rights groups say dozens of China's best defense attorneys have
effectively been disbarred under political pressure.\8\ In the time-
honored Chinese tradition of ``killing the chicken to scare the
monkeys,'' these actions were clearly designed to put the brakes on
activism by other individuals and firms.
---------------------------------------------------------------------------
\8\ Human Rights in China, ``Human Rights Defenders: Harassment and
Other Unfavorable Treatment,'' cited at http://www.hrichina.org/public/
contents/press?revision--id=62625&item--id=62623#hrd.
---------------------------------------------------------------------------
what happens to lawyers who take on controversial cases and clients
The maltreatment of lawyers involved in defending unpopular people
and causes is nothing new in China's modern legal system. For years,
the Chinese authorities have increased restrictions on lawyers who work
on politically sensitive cases or cases that draw attention from the
foreign news media. The typical means of harassment is to intimidate
lawyers defending criminal defendants by charging them, or threatening
to charge them, with various crimes. If that does not work, authorities
have also used harassment and violence against those who participate in
criminal or civil rights defense in sensitive matters. Detention, house
arrest and even imprisonment on manifestly false charges are commonly
employed. Pettier forms of
harassment have also kept lawyers incommunicado, prevented friends and
family members from contacting controversial lawyers and even turned on
spouses and children of targeted attorneys.
These practices have excited concern of lawyers elsewhere in the
world for the lives and livelihood of Chinese lawyers. In Hong Kong,
the China Human Rights Lawyers Concern Group (CHRLCG) made an NGO
Submission to the United
Nations Committee Against Torture for the 41st session for the Fourth
and Fifth Periodic Reports of the People's Republic of China on the
Implementation of the Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment in October 2008. It noted
that although China had ratified the Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment (the
Convention) in October 1988, dissidents and human rights defenders have
continued to be subjected to various forms of torture. In addition to
China's failure to effectively implement all the relevant provisions on
torture in domestic laws, the report noted, law enforcement officers
are usually the ones who violate the domestic laws and the
international convention. Recently, CHRLCG became alarmed that the
situation was becoming even more worrying because a number of human
rights lawyers and legal rights defenders have become the subjects of
torture by public security officers and prison officers merely because
they provide legal assistance to human rights defenders or took up
cases considered ``politically sensitive'' by the government.
Therefore, the CHRLCG expressed concern about how bad the situation is
and what problems ordinary Chinese citizens encounter since even
lawyers are subjected to torture and harassment by law enforcement
officers.\9\
---------------------------------------------------------------------------
\9\ China Human Rights Lawyers Concern Group (CHRLCG), An NGO
Submission to the UN Committee Against Torture for the 41st session for
the Fourth and Fifth Periodic Reports of the People's Republic of China
on the Implementation of the Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment , October 2008,
accessed at http://www2.ohchr.org/english/bodies/cat/docs/ngos/CHRLCG--
China--cat41.pdf.
---------------------------------------------------------------------------
In drawing the Committee's attention to individual cases to
illustrate how China has violated the Convention, the CHRLCG noted:
[These] are more well-known cases about mainland Chinese
human rights lawyers and legal rights defenders being illegally
and unreasonably harassed by law enforcement officers. It is
only the tip of the iceberg. There are many more cases
involving lesser known human rights legal practitioners. These
lawyers were targeted because they took up cases regarded by
fellow legal practitioners as highly politically sensitive,
such as defending political dissidents, rights defenders and
Falun Gong practitioners. Falun Gong is banned in China. These
lawyers are only using their professional skills to help people
in need. They shouldn't be subjected to oppression and torture
by the authorities. If [China] is committed to developing
universally accepted principles and the rule of law, it should
stop harassing and attacking legal rights defenders and human
rights lawyers. Only an independent judiciary and a credible
legal system can ensure that these abuses won't happen again.
In order to ensure that lawyers, legal rights defenders and
ordinary citizens will be free from arbitrary attacks and
harassments by law enforcement officers and thugs hired by law
enforcement officers, [China] should ensure that law
enforcement officers comply with provisions of the
Convention.\10\
---------------------------------------------------------------------------
\10\ Id.
With this background in mind, it may be worthwhile to consider
briefly a few examples of individual rights defenders in representative
cases who have suffered these abuses.
Falun Gong
Human Rights in China (HRIC) has reported on the cases of Beijing
rights defense lawyers Zhang Kai and Li Chunfu who were violently
beaten at their client's home in Chongqing by local police on May 13,
2009. They were then brought to the local police station for
interrogation and were locked up in an iron cage and slapped in the
face. A month earlier, Beijing rights defense lawyer Cheng Hai was also
violently beaten by the police in Chengdu, Sichuan for handling a Falun
Gong case.
Zhang Kai is a lawyer with Beijing Yijia Law Firm and Li Chunfu is
a lawyer at Beijing Globe Law Firm. On the afternoon of May 13, they
met with relatives of Jiang Xiqing at their home in Jiangjin District,
Chongqing to discuss Jiang's death while serving a Reeducation-Through-
Labor (RTL) sentence. Jiang Xiqing, 66, was arrested by the police on
May 14, 2008, and sentenced to one year of RTL for practicing Falun
Gong. On January 28, 2009, the Chongqing Xishanping Reeducation Center
informed Jiang's family that Jiang had died of a heart attack. He was
then cremated without consent by his family. The family, suspicious of
the cause of death, hired a Chongqing lawyer for legal assistance. But
after inquiring formally with the police, the lawyer declined to be
retained by the family.
Li and Zhang agreed to represent the family, notwithstanding the
implied threats experienced when the family had previously tried to
retain counsel. Sources inside China informed HRIC that around 4 p.m.
on the afternoon of May 13, four policemen came to the home of Jiang's
relatives and said they were delivering materials from the public
security bureau's judicial administrative office. They started to
interrogate the lawyers, asking the lawyers to produce their identity
cards. Soon afterwards, about 20 more people from the state security
unit of the Jiangjin District Public Security Bureau and Jijiang Police
Substation also arrived. Jiangjin State Security squadron leader Mu
Chaoheng asked Jiang Xiqing's relatives, ``Who told you to hire
lawyers? Your dad died a natural death.''
After Li Chunfu presented his lawyer's license and Zhang Kai
presented his passport, the police announced, ``We only accept identity
cards.'' The police surrounded Zhang Kai and Li Chunfu and began
pulling their hair, twisting their arms, tripping them, and beating
them while pinning them on the ground. The police then handcuffed them
and hauled them into their vehicle. They also took away Jiang Xiqing's
son, Jiang Hongbin. After arriving at the police station, Zhang Kai was
hung up with handcuffs in an iron cage and Li Chunfu was slapped in the
face by the police. During the interrogation, the police threatened the
lawyer to stop defending Falun Gong cases. When the lawyers argued that
everyone had a right to legal counsel, the police said: You absolutely
cannot defend Falun Gong; this is the situation in China. Lawyer Zhang
Kai later said, ``This is typical hoodlum behavior. They just wanted to
intimidate us and force us to withdraw from the case. They are so
frightened; they must be hiding something about this case.''
Zhang Kai and Li Chunfu were released at 12:40 a.m. on May 14.
Their hands were covered with bruises and scars. Zhang Kai's hands were
numb and swollen, and Li Chunfu had troubling hearing in one ear.
Subsequently, they had to be taken to be examined at Jiangjin District
People's Hospital.\11\
---------------------------------------------------------------------------
\11\ Human Rights in China, ``Beijing Lawyers Beaten for
Representing Falun Gong Case,'' May 13, 2009, cited at http://
www.hrichina.org/public/contents/press?revision--id=164835&item--
id=164831.
---------------------------------------------------------------------------
HIV patients
Hu Jia was a rights defender, not a lawyer, who worked for the
rights of those suffering from HIV/ AIDS in rural China. He is the co-
founder of the Beijing Aizhixing Institute for Health Education, a non-
governmental organization which promotes public awareness and education
on the issue of HIV/ AIDS. On March 18, 2008, Hu Jia was tried in the
First Beijing Intermediate Court on charges of subversion against the
Chinese Government in relation to his on-line writings and has pleaded
not guilty. He faced up to five years' imprisonment and is expected to
be sentenced in the coming week. Hu Jia's lawyer, Li Fangping, reported
that he was allowed only twenty minutes in which to defend Hu Jia and
was consistently interrupted by the judge when giving his defense. In
addition, several foreign diplomats and members of Hu Jia's family were
prevented from attending the trial and many of his supporters were
reportedly forced by the authorities to leave Beijing for the duration
of the trial in order to prevent them from speaking with journalists.
Hu Jia was detained on December 27, 2007 after giving his public
testimony to the European Parliament in which he gave details of human
rights violations reportedly being committed in China. He was
officially arrested on January 30, 2008 and charged with ``incitement
to subvert state power''. On April 3, 2008, Hu was sentenced to three
years and six months in prison. Hu's wife Zeng Jinyan, after an April
2009 prison visit with Hu Jia, noted that his health is deteriorating
because of inadequate nutrition and medical care. Following his arrest
his wife, Zeng Jinyan, and his daughter were reportedly prevented from
leaving their apartment in Beijing. Several other writers who have
published their work on the Internet and are considered cyber-
dissidents by the authorities were arrested at the same time.
These arrests have been interpreted as a campaign of intimidation
on the part of the authorities against human rights defenders in order
to dissuade them from publicizing information about human rights abuses
in China during the period of the Olympic Games. Hu Jia has written of
human rights abuses committed against those suffering from HIV/ AIDS in
rural China, as well as of issues of religious freedom and the human
rights situation in Tibet. His lawyer, Li Fangping, a prominent human
rights activist, has also been harassed both for representing Hu Jia
and for other controversial cases.\12\
---------------------------------------------------------------------------
\12\ Human Rights Watch, ``Hu Jia Chronology: Key events, February
2006-present,'' Beijing 2008 China's Olympian Human Rights Challenges,
cited at http://china.hrw.org/press/news--release/hu--jia--chronology.
---------------------------------------------------------------------------
Class-action cases
In 2006, the All China Lawyers Association (ACLA) issued a guiding
opinion that restricts and subjects to punishment any lawyer who gets
involved in a ``mass'' case. The ACLA Executive Council approved the
Guiding Opinion of the All China Lawyers Association Regarding Lawyers
Handling Cases of a Mass Nature, which went into effect on March 20,
2006. The following passage, drawn from a translation prepared by the
Congressional-Executive Commission on China of the ``Guiding Opinion of
the All China Lawyers Association Regarding Lawyers Handling Cases of a
Mass Nature,'' distributed by the All China Lawyers Association on
March 20, 2006, sets forth the new policy to restrict and inhibit class
actions:
At present and hereafter, during this important era in which
our nation is constructing a socialist harmonious society, the
correct handling of cases of a mass nature is essential to the
construction of a harmonious society. Cases of a mass nature
more commonly occur in land requisitioning and levying of
taxes, building demolitions, migrant enclaves, enterprise
transformation, environmental pollution, and protection of the
rights and interests of rural laborers, among other areas.
Cases of a mass nature generally have comparatively complicated
social, economic, and political causes, and have effects on the
state and society that vary in degree and cannot be ignored.
Thus, there is a need to standardize and guide lawyer handling
of cases of a mass nature.\13\
---------------------------------------------------------------------------
\13\ All China Lawyers Association, ``Guiding Opinion of the All
China Lawyers Association Regarding Lawyers Handling Cases of a Mass
Nature,'' March 20, 2006, English translation available at http://
www.cecc.gov/pages/virtualAcad/index.phpd?showsingle=53258.
This Guiding Opinion uses the term ``mass'' cases to describe those
that involve representative or joint litigation by 10 or more
litigants, or those in which the matter is handled through a series of
litigation and non-litigation efforts. While it notes that mass cases
``more commonly occur'' in the safeguarding of rights and interests of
disadvantaged groups, it clearly seeks to control and to minimize them.
Also noteworthy is that the Guiding Opinion instructs law firms to
assign only ``politically qualified'' lawyers to conduct initial intake
of these cases, and to obtain the approval of at least three partners
before taking them on. Such collective responsibility increases the
likelihood that firms will be unwilling to take on these cases.
Moreover, lawyers who handle mass cases must ``promptly and fully
communicate'' this information to the local justice bureau, accept
supervision and guidance by judicial administration departments,
attempt to mitigate conflict, and propose mediation as the method for
conflict resolution. Thus, the case will almost certainly never get to
court if the tortuous path that the Guiding Opinion sets out is
followed. As a final twist, the Guiding Opinion says that local lawyers
associations may sanction any lawyer or law firm that fails to follow
these guidelines and causes a ``negative
impact,'' or report them to the relevant judicial administration
department for punishment.
The Guiding Opinion was only one in a series of opinions that
restricted the participation of lawyers in specific categories of
rights defense work. In addition to ``mass'' cases, other categories
that triggered restrictions included ``major,'' ``difficult,'' and
``sensitive'' cases. For example, the Henan Provincial Justice Bureau
and Shenyang Municipal Justice Bureau (in Liaoning province) each
issued opinions governing the range of activities permitted in
``sensitive'' cases, according to reports in April, 2006.\14\
---------------------------------------------------------------------------
\14\ See, e.g., ``Henan Justice Bureau Establishes a Rule for
Lawyers: No Stirring Up of Sensitive Cases''[Henan sifating wei lushi
ding ``guiju'' mingan anjian jin chaozuo], Henan Daily, reprinted in
Xinhua (Online), 10 April 06. Cited at
---------------------------------------------------------------------------
Tainted food and formula cases
In 2007 and 2008, China was rocked by scandals involving tainted
milk and baby formula which poisoned hundreds, causing kidney stones
and other medical problems, and even killed a number of children. The
products had been adulterated increase its protein count; this in turn
revealed a web of corruption and lack of proper oversight in China's
food processing industries. A group of 90 lawyers from Hebei, Henan and
Shandong--the three worst affected provinces--had made pro bono offers
to assist victims, and a list of their names was published. Organizers
of the group declared that they had come under pressure from officials
to not to get involved in the issue. The Beijing Lawyers' Association,
a part of the Communist Party apparatus, asked its members ``to put
faith in the party and government.'' Other members of the group
reportedly received less subtle requests. Authorities were said to fear
social unrest if law suits were unleashed. The Pro-Beijing Hong Kong
journal Ta Kung Pao reported that central authorities, fearful of the
effect of mass law suits, held a meeting with lawyers' groups in
September, 2008, asking them to ``act together, and help maintain
stability.''
Chang Boyang, one of the group of volunteer lawyers, said he had
filed a suit in Guangdong against the chief offender, the Sanlu Milk
Company, on behalf of the parents of one victim. One had already filed
in Henan. Chang said that Henan's justice department had ordered 14
Henan lawyers to stop helping the kidney stone victims, saying it had
become a political issue. He claimed he was told by the official to
``follow the arrangements set out by the government,'' and was further
threatened: ``If this suggestion is disobeyed, the lawyer and the firm
will be dealt with.'' Zhang Yuanxin, lawyer and officer in the Xinjiang
Lawyers' Association said that the actions of certain departments in
government have ``set back the development of the legal profession.''
He said that it was ``intolerable'' for government to interfere in the
affairs of the judiciary, denying the right of ordinary citizens to
sue.\15\
---------------------------------------------------------------------------
\15\ Edward Wong, ``Courts Compound Pain of China's Tainted Milk,''
New York Times, October 17, 2008, cited at http://www.nytimes.com/2008/
10/17/world/asia/17milk.html?ref=asia&p.
---------------------------------------------------------------------------
An official said that central government had issued instructions
placing the cases on hold, pending a decision on how to handle the
cases in a unified manner. Furthermore, that court was instructed not
to give any written replies or accept Sanlu-related cases in the
meantime.
Sichuan earthquake parents
In the spring of 2008, a terrible earthquake struck China's Sichuan
province. Building were leveled, towns destroyed and many citizens
killed or injured. Later it was discovered that many of the building
were improperly constructed and--had they been built according to
applicable regulations--should have withstood the earthquake. Relatives
of Sichuan earthquake victims attempted to sue those responsible but
became victims yet again. Some were even imprisoned, such as an eight
year-old boy who was among those imprisoned by Chinese police
attempting to silence protests by the relatives of thousands of
children who died in last year's earthquake, according to a new report
by Amnesty International. He was held as anger among bereaved parents
in Sichuan Province intensified when the authorities went back on their
promise to hold a full inquiry into why so many schools were destroyed.
The boy was detained overnight last June, along with his father, by
police in Shifang City who were looking for his uncle, who had been
planning to petition the local authorities over the death of his two
sons during the May 12 earthquake.
Roseann Rife, Amnesty's Asia-Pacific Deputy Programme Director,
said: ``It's absolutely extraordinary that the police would detain a
child of that age. It's a violation of the UN Convention on the Rights
of the Child, which China has signed up to, as well as Chinese law.''
Almost five thousand children are known to have died when their schools
crumbled to the ground last May in what was the strongest earthquake to
hit China in 50 years. Parents of the children have blamed the
substandard construction of the schools, many of which collapsed while
the buildings around them stayed upright, for the deaths. But officials
in Sichuan claim that the force of the earthquake was the primary
reason why 9,145 schools in the province were destroyed or damaged.\16\
---------------------------------------------------------------------------
\16\ Amnesty International, China: Justice denied: Harassment of
Sichuan earthquake survivors and activists, May 2009, archived at
http://www.amnesty.org/en/library/asset/ASA17/018/2009/en/dbf100fd-
c9f7-4675-91b4-e85e25460809/asa170182009eng.pdf.
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The government has offered 60,000 Yuan compensation to the parents
for each dead child, but only if they agree not to press for an inquiry
into the construction of the schools, or to bring court cases seeking
damages from the state. According to Amnesty International, an unknown
number of those who have petitioned the authorities for an
investigation have been detained in unofficial ``black jails'' for up
to 21 days at a time. Lawyers and activists who have assisted them have
also been harassed or detained. For example, Luo Guoming claims he was
imprisoned for a week last September. His 16 year-old daughter Luo Dan
died with another 600 or so children, when the Juyuan Middle School in
Dujiangyan collapsed.
``A dozen of us parents were on the way to the provincial capital
Chengdu to petition the authorities when the police stopped us and
turned us back. The next day, they came to my home and took me away,''
he said. Mr Luo said he believed his mobile phone was being monitored.
He has given up his job as a carpenter to devote his time to seeking
justice for his daughter. ``I want the authorities to do what they said
they would do, which is investigate the construction of the schools,
find out who was responsible for such shoddy building work and punish
them,'' he said.
Human rights activists who have offered assistance to the victims,
given out information about the earthquake or represented parents in
negotiations with authorities have been harassed and arbitrarily
detained. Huang Qi was detained because of his work to help the
families of five primary school students who died when their school
building collapsed during the earthquake. He has been in detention
since June 2008, with no access to his family. He Hongchun, a
representative of parents whose children died during the earthquake,
was detained in September 2009 after he organized a protest outside an
insurance company. Tan Zuoren was detained on 28 March 2009, and it is
believed that his detention is related to his intention to issue public
materials on the first anniversary of the earthquake, including a list
of the children who died on 12 May 2008.\17\
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\17\ Id.
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concluding reflections and recommendations
China's evolving legal system is a substantial change to both long
Chinese tradition and the politics and practice of Maoist Chinese
political culture. Lawyers and a legal profession are equally new to
China and can only become rooted in China slowly. Chinese citizens
nonetheless seek ways to obtain redress of governmental abuses of
power, to oversee government behavior, and to participate in their
society. However reluctantly, the Chinese leadership has decided to
foster a growing legal profession and to employ it, suitably
constrained, in modernizing China, developing its economy and creating
a ``harmonious society,'' with the support of law.
Establishing the rule of law with the help of lawyers is not that
easy to control. While welcoming the predictability of legal order, and
hoping that legal means can help to curb corruption, China's leaders
have already learned that legal activism is difficult to channel. Once
ordinary Chinese citizens begin to feel that they have the legal right
to courts to enforce their rights, it becomes problematic to tell them
that only certain rights warrant protection, especially when those
rights are at least theoretically protected by existing laws and
regulations.
China's judiciary has thus far served as a lackey for state and
Party leaders, heeding their call and accepting the restrictions placed
on it. As it becomes stronger, and as lawyers' activism begins to
promote judicial independence from government and Party interference,
judges may be able to fulfill their roles and reframe Chinese
jurisprudence. A more credible Chinese judiciary would also help
increase domestic and foreign respect for the Chinese legal system.
The rule of law in China has long been something of an oxymoron, or
as Mao used to stress, a ``contradiction.'' The Communist Party remains
the final arbiter of not only the rule of law but of all lawful
government and refuses subject itself and its minions to the discipline
of the law. A professional class of lawyers--well educated, comfortably
middle class and increasingly self assured--may eventually be able to
wrest greater power over the legal system. And, in contrast to the
experience of previous decades, the sunlight of a more active foreign
and international press, homegrown human rights defenders (many of them
NOT lawyers) and the advantages of modern modes of communication--the
cell phone, fax and Internet--assure continued scrutiny of a system
about which we know a great deal in detail. That alone may assure
continuing pressure to extend the promise of the rule of law to ever
larger swathes of Chinese society.
______
Prepared Statement of Xiqiu ``Bob'' Fu
july 10, 2009
Thank you for the invitation to this panel with Professor Jerome
Cohen, Professor Feinerman and Mr. Turkel. I very much appreciate the
hard work and concern of the CECC Commissioners, including Congressman
Pitts who is with us today, and the CECC staff.
I have been receiving many messages from lawyers in China about
their law
license cancellations or that their licenses have not been renewed by
the Beijing Lawyers Association. This is not only unnecessary and
unjust, but also an unprecedented development. As far as we can
confirm, 19 attorneys at this time are unable to practice law. They are
Jiang Tianyong, Li Heping, Li Xiongbing, Li Fuchun, Wang Yajun, Guo
Shaofei, Cheng Hai, Tang Jitian, Yang Huiwen, Tong Chaoping, Liu
Guitao, Xie Yanyi, Wen Haibo, Liu Wei, Zhang Lihui, Zhang Chengmao,
Zhang Xingshui, Wei Liangyue and Sun Wenbing. These attorneys have
always persisted in providing legal assistance for clients to safeguard
their legitimate rights. Of the reports I have seen, the Open Letter to
the Ministry of Justice on July 2nd most succinctly and clearly
explains the situation of the license denials and points out the root
problems and effects of this on a national level. This letter was
written by 31 Chinese intellectuals--23 in Beijing, 7 in other regions
of China, and 1 in Australia. I request that the full text of this Open
Letter be entered into the Congressional Record. I will read a few key
points of the letter:
We think this case is entirely a violation of the law. As a
social organization in the legal industry, Beijing Lawyers
Association has no right to restrict or deprive its members of
their right to practice. In the past, there were cases in which
Beijing Lawyers Association deprived some human rights
attorneys of their qualifications to practice, and that was
considered an illegal overstepping of its authority. Now, it
has even forced many law firms to stop their service and made
several hundred attorneys unable to practice, which is all the
more astonishing. Such illegal, absurd and perverse acts that
violate the common sense will bring serious bad consequences to
the society.
On July 18, 2008, the Ministry of Justice promulgated
``Management Methods in Attorneys' Practice'' and ``Management
Methods on Law Firms'' which officially annulled the annual
registration system on the attorneys. At this time, Beijing
Lawyers Association issued a notice and changed
``registration'' to ``register'' and totally disregards the
principles of Ministry of Justice in ``the specific methods for
annual evaluation shall be provided by Ministry of Justice.''
. . .First of all, it will further worsen the environment for
rule of law in the society. . . . By taking advantage of the
authorization from Beijing Bureau of Justice, the Beijing
Lawyers Association suppresses and takes revenge on human
rights lawyers as it wishes. . . . Most of these attorneys are
the top-notch outstanding attorneys who have the highest
awareness of rule of law among about ten thousand attorneys in
Beijing.
. . .Second, cancellation of the licenses of a large number
of attorneys has undermined to a great extent the strategic
elements for building a harmonious society.
. . .Third, canceling the right to practice of so many right
defense attorneys is a provocation on the social conscience.
The first part of my recommendation for Congressional response is
to base the response on this recommendation from the Open Letter to the
Ministry of Justice: it is a clear, straightforward framework on which
U.S. Congressional response to Beijing can be based. I will read from
the Open Letter:
It is our belief that as the highest judicial administrative
organ of our country, the Ministry of Justice should not ignore
such a violation of law by Beijing Municipal Bureau of Justice
and Beijing Lawyers Association in worsening the environment
for rule of law, undermining the social harmony and in
challenging the social conscience. We hope the Ministry of
Justice can, in the principle of ``upholding the spirit of rule
of law'' as proposed at the 17th CPC National Congress, order
Beijing Municipal Bureau of Justice and Beijing Lawyers
Association to withdraw their decision, correct their mistakes,
restore the right defense lawyers' right to practice and
apologize to the people in various circles of life, so as to
solve this problem in a fair, reasonable and legal way.
I appreciate the clear statements in this letter which explain not
only their concern but also the national effects of these license
denials--effects which ultimately concern each one of us especially
because of the unfortunately utter disregard to rule of law by the
largest regime in the world.
One question to be addressed by this panel is, ``What is the
relationship between these lawyers and the Chinese government and the
Communist Party? '' This brings up an intriguing point--because these
human rights lawyers have been moving forward according to the proposal
from the 17th CPC National Congress to ``promote the spirit of rule of
law'' and ``realization of rule of law in various jobs of the state.''
A simple list has been compiled of each lawyer whose license has been
revoked or not renewed, and the important incidents and cases the
lawyer has been involved with: the categories mentioned in this list
include the Sanlu poisonous milk powder incident, abnormal deaths while
the victim was in custody, representing house churches, re-education
through labor cases, rights of migrant works and ethnic minorities,
cases of Falun Gong practitioners, rights of HIV patients, and the case
of the underground brick kilns in Shanxi province.
Which of these cases should a government shrink from having
represented by a professional lawyer? Does not rule of law necessitate
the vulnerability to transparency? Transparency under rule of law, in
some of these cases, might necessitate acknowledgement of unjust
measures or inappropriate use of authority--and that is unfortunately a
consistent possibility in any government because of human nature. What
is not necessitated or acceptable is repression of the lawyers who are
implementing rule of law.
Not only have human rights lawyers experienced this challenge to
their licenses, but some have also experienced actual physical
harassment. We have received statements from seven attorneys which I
request be entered into the Congressional Record. For example, on May
13, 2009, attorneys Zhang Kai of Kaifa Law Firm in Beijing and Li
Chunfu of Globe-Law Lawyers in Beijing were forcibly detained while
visiting with a client in a personal residence. They were physically
hurt, and thrown in prison for a few hours.
Gao Zhisheng's case continues to baffle and sadden us. He has now
been missing for 156 days, since February 4, 2009. The last time he was
forcibly taken and hidden in 2007, he experienced 58 days of
unspeakable torture. His written account of this torture provides the
factual basis for the ``FreeGao'' DVD available on the table. To date
about 100,000 people have signed the online petition at
www.FreeGao.com, requesting that accounting be made of Gao's situation
and well-being. Why is it that Ambassador Zhou states about Gao that,
``The public security authority has not taken any mandatory measure
against him? '' Why are the officials emboldened to take him, keep him,
and refuse to account for him?
Attorney Gao has taken bold stands for freedom and truth in China;
he has appealed to the Congress for their support, and it is feared he
could be on the verge of death now. Many human rights lawyers in China
do not feel they will take the exact approach that Gao has and have
made intentional steps to stay generously within the limits of Chinese
law--yet, the repression is not even limited to Gao's dramatic moves,
but instead we see in the developments with law licenses that even
these lawyers' very basis on which to continue work is being
threatened.
These developments strengthen the plea to the U.S. Congress to
publically investigate these issues, affirm truth and justice, and
actively stand for freedom with freedom-fighting, law-loving lawyers in
China. Also, I urge the Obama Administration officials and the senior
U.S. diplomats in our Embassy in Beijing to publicly, regularly and
frequently meet with these freedom fighters in and outside China when
they are available so that an unambiguous strong signal can be sent to
both these courageous rights defenders and the Chinese government that
the American people will stand in firm solidarity with any freedom
fighters in any part of the world. Thank you.
Submissions for the Record
----------
Final Compilation of Translated Lawyers' Statements
The Challenges Rights Defense Attorneys in China Face and Its Future
Prospect
li fangping
July 5, 2009
We are now living in the China set against such a dramatic
background of the times: First, the economic system is fast evolving
while its political system has seen little changes over the years.
Second, its legal system is increasingly improving, but the public
power is often not restrained by the law. Third, the citizens'
awareness of their rights is increasing and the more the awareness to
defend one's rights, the more prominent the abuse and the shirking of
responsibilities by the public power becomes.
With the advent of the Internet in China, the first widespread and
passionate participation by the citizens in political matters occurred
in 2003 during the ``Sun Zhigang Incident,'' which successfully made
the State Council announce the annulment of the system of ``internment
and deportation.'' In the next year, ``The State respects and
safeguards human rights'' was solemnly written into the Constitution.
In the next five years, right defense attorneys have, as a professional
social group committed to promoting rule of law and safeguarding human
rights, presented themselves before the world.
Certainly, in a country where rule of law is still far from
realized and where there is full of terrible things against ordinary
citizens, the work and life of right defense attorneys must be full of
obstacles and frustrations. Just because we engage in work involving
human rights, government departments not only do not understand the
significance of our existence, they also regard us as the targets of
their domestic defense. We seem to have become personae non gratae in
the eyes of the government and we are often treated unfairly. Some of
us have been beaten and kidnapped. The personal freedom of some of us
is illegally restricted and some of us are illegally stalked by force.
Some of us are forced to report our activities and some are driven out
by our landlords due to pressure from the government. Some are
threatened and given a disciplinary warning by Bureau of Justice and
lawyers' associations. Some are simply fired by their law firms due to
pressure from the government.
This year, the right defense attorneys as a social group are
enduring more pressure than ever before. As far as I can confirm, 19
attorneys at this time are unable to practice law. They are Jiang
Tianyong, Li Heping, Li Xiongbing, Li Fuchun, Wang Yajun, Guo Shaofei,
Cheng Hai, Tang Jitian, Yang Huiwen, Tong Chaoping, Liu Guitao, Xie
Yanyi, Wen Haibo, Liu Wei, Zhang Lihui, Zhang Chengmao, Zhang Xingshui,
Wei Liangyue and Sun Wenbing. These attorneys have always persisted in
providing legal assistance or defense services for clients to safeguard
their legitimate rights. They include victims of Sanlu poisonous milk
powder, parents of children victimized in the earthquake, HIV carriers,
peasants who have lost their land, detained Tibetans, house church
Christians, Falun Gong practitioners, right defense activists,
political dissidents, victims of violent family planning policies and
clients from other various areas.
Judicial administrative departments in Beijing and other places
have terminated attorneys' rights to practice on the ground that these
right defense attorneys have not passed the so-called ``annual
evaluation'' or that the law firms where they work have not passed the
``annual inspection.'' However, the ``annual evaluation'' for attorneys
and the ``annual inspection'' for law firms themselves are not the
administrative penalty that can terminate the right to practice of the
attorneys or of their law firms. We can see that the ``annual
evaluation'' for attorneys and the ``annual inspection'' of law firms
have degenerated into an illegal, disorderly and remediless
administrative penalty in disguised form that overrides the
disciplinary penalty in the industry and administrative penalty on the
practicing attorneys.
What delights us is that on the one hand, the right defense
attorneys have not given up their idea of safeguarding rule of law and
human rights. Each time they negotiate with judicial administrative
departments, they express their criticism on the illegal administration
and their firm belief that China will certainly develop into a country
under rule of law. On the other hand, the disadvantaged social groups
whose rights are harmed also express their desire of ``attorneys for
us, and we for attorneys.'' It is my belief that the appeal for rights
by the ordinary people whose rights are harmed, and the sense of
mission of the attorneys, will combine to form a powerful synergy in
promoting the progress of our country in human rights and rule of law.
Though the road to rule of law and human rights in China will be hard
and long, yet the long march of this time is attracting more and more
people, including you, us and them. Given this situation, I, as a
member of this social group of defense attorneys, personally am full of
confidence for the ``Same World, Same Human Rights.''
Finally, let me express my gratitude for all my friends who are
concerned about the rule of law in China and the progress in human
rights.
* * *
Joint Declaration of Rights Defense Attorneys
zhang kai and li fuchun
Night, July 6, 2009
Some of us rights defense attorneys hereby ask ChinaAid Association
to publish the following declaration to the international community on
our recent sufferings and the worsening prospect for the rule of law in
China:
Recently, the rights defense attorneys in China are suffering
unprecedented large-scale repression. Rights defense attorneys are a
particular social group in China, and they can also be referred to as
human rights attorneys. The work the rights defense attorneys do is
mainly using the relief of law to safeguard citizens' basic rights
within the framework of the Constitution such as freedom of speech,
freedom of belief, personal freedom and freedom of property from
illegal infringement by the public power, etc. In such a country as
China where there is a tradition of thousands of years of autocratic
rule and where law is not clearly defined, rights defense attorneys
have always been regarded by the authorities as aliens to be expelled
and suppressed. Recently, the authorities have become more and more
brazen and wanton in such attacks and suppression that the professional
licenses of some attorneys were unreasonably rejected during the annual
inspection, resulting in their inability to practice their law. A few
attorneys were even violently beaten.
The prominent human rights attorneys from Beijing Zhang Kai and Li
Chunfu were besieged by over 20 local policemen and met with violence
and beatings at the residence of their client when they were in
Jiangjin, Chongqing, Sichuan province to investigate the case of Jiang
Xiqing who died an abnormal death during custody at a labor camp. Zhang
Kai and Li Chunfu were taken away in handcuffs and were detained for
six hours. The police illegally examined the computers and the
materials the attorneys brought with them as evidence. They tried to
force the attorneys to cancel the contract with their clients. As of
today, the two attorneys still have not recovered from their injuries.
The two attorneys are still trying to talk with relevant departments
with reasonable and legal means that they have always used in defending
the rights of other people. So far, however, they have not given any
official explanations.
We expect the international community to show more concerns on the
rights defense attorneys in China. Because the legal system in the
Chinese society advances so slowly or even goes backwards, the social
conflicts are increasingly intensifying and the ways by which the
people seek relief thereof are full of barriers. Given this situation,
rights defense attorneys are making great efforts and are paying a
great price for the progress of the Chinese law, for which they have
made indelible achievements in the history of the progress of rule of
law in China. They not only provide legal relief in individual cases,
but rights defense attorneys have also played a role in neutralizing
social conflicts and in easing tensions between the government and the
people. They provide legal assistance and moral support for the
miserable Chinese people and are truly promoting the balanced and
orderly development of the society.
We also hope the Chinese government can correct its errors in its
administration out of its own will and give the rights defense
attorneys a legal and sufficient professional environment. Law is the
bottomline in guaranteeing that a government wins the support of its
people. It is also the last line of defense with which the people can
enjoy the freedom and safety in their life. They should give the rights
defense attorneys more encouragement and support, not suppression or
injury. Otherwise, such an injury can affect the image and dignity of
the Chinese government itself.
Doubtlessly, every human being created in the image of God the
Creator enjoys the rights of freedom and equality. The Constitution is
the reality of protection of such rights which no one or no government
has the right to deprive the people of. This type of rights is natural
and has universal values. Rights defense attorneys adhere to the basic
spirit endowed by the law and plead on behalf of the people for freedom
and equality. And such rights originated from the authorization of God
and transcend all countries and races, whether they are Chinese,
Americans or tribes in Africa. When man's rights and dignity are hurt,
it is the loss on the glory of the Creator. Every one of us has the
obligation to strive for improvement on this issue. We hope there will
be changes in the Chinese society and we are willing make our efforts
in building a free and democratic country under rule of law based on
the law of China and the spirit endowed by the law.
Zhang Kai, attorney (Yijia Law Firm of Beijing)
Li Fuchun, attorney.
* * *
Human Rights Attorneys in China Very Active but Find Themselves in a
Dire Situation
jiang tianyong
Since 2005, the social conflicts in China have been intensifying,
but people are fast awakening in the awareness of their rights. Given
such a background, the rise of the right defense movement has produced
a group of human rights defenders such as Gao Zhisheng, Chen Guangchen,
Guo Feixiong, Hu Jia, Li Heping, etc. Human rights attorneys are an
important group of these people. The human rights attorneys in China
work in a wide range of fields such as the freedom of religious belief,
freedom of speech, freedom of association, residential rights
(objection to forced removal), land rights, rights of ethnic minorities
(such as Tibetans), etc. On the one hand, they are becoming more and
more active and are more and more needed and depended upon by victims
whose human rights are abused. On the other hand, they suffer
harassment, repression and persecution from the government.
Following is my experience to demonstrate this situation:
My name is Jiang Tianyong, and I'm a male of Han nationality. I was
born in Henan province, PRC in 1971. Currently, I'm residing in the
Haidian District of Beijing, China. Because I wanted to engage in work
of defending human rights, I quit my work at a middle school in Henan
province and came to work at Beijing Globe-law Firm in 2004. In 2005, I
got my attorney's license and became a practicing
attorney. After that, I've taken a large number of human rights cases,
both individually or in partnership with my associates. As a result of
this, I've suffered various forms of persecution from the government.
Except 2007, I met troubles in renewing my attorney's license at
Beijing Bureau of Justice during the annual inspection/registration/
annual evaluation in 2006, 2008 and 2009.
In 2006, as I was involved in right defenses cases of migrant
workers, Gao Zhisheng's case, victims of violent family planning
policies in Linyi, Chen Guangchen's case, I was harassed and threatened
by the secret police of Domestic Security Protection Squad of Beijing.
They tried to prevent me from participating in these so-called
sensitive cases, claiming that it was not good for me. They also said
that if I wanted to make a fortune, they could help. Their demands were
not unfulfilled. People from Beijing Municipal Bureau of Justice found
me through my law firm and told me they forbad me to get involved in
some cases. They even used special means in getting to know that I had
bought a train ticket to go to Linyi for the violent family planning
case. They called me many times and forbad me from going there. Even my
wife who was living far away in Zhengzhou, Henan province was harassed
on the phone by them in the middle of the night. In the meantime, as my
landlord could not endure the pressure from the secret police, and he
refused to continue renting the house to me. I had to move out. In the
same year, the registration of my attorney's license and Li Heping's
license got into trouble and were delayed. Beijing Municipal Bureau of
Justice illegally forced me and my law firm to write a statement of
guarantees.
Starting from August 2006, I was illegally stalked because of Gao
Zhisheng's case and was placed on house arrest for five months.
In 2008, I continued engaging in cases of human rights and began to
provide legal assistance to people sentenced to re-education through
labor and HIV carriers. I also provided legal support for NGO
organizations that defend human rights--for example, Aizhi Research
Institute of Beijing (www.aizhi.net) and Open Constitution Initiative
(OCI) (www.gongmeng.cn). After the March 14 Incident in Tibet, I signed
a declaration to express my willingness to represent the arrested
Tibetans. In that year, I met with serious troubles from Beijing
Municipal Bureau of Justice during the annual inspection and
registration of my attorney's license. They unequivocally told me the
reason: ``You have gotten involved in sensitive cases.'' They said they
wanted to ``unleash their wisdom'' and ``break the livelihood'' of us
human rights attorneys. Beijing Municipal Bureau of Justice tried
illegally to force me to write a statement of guarantees in which I
would promise not to get involved in sensitive cases again and not to
have interviews with the media. Because their demands lack legal basis,
they were rejected by me. After widespread concerns from people both in
China and abroad, I finally passed the annual inspection and
registration on June 30 of that year. At this time, I have not been
able to engage in attorney's work for a month now.
From July 2008 to May 2009, I represented a large number of people
in cases ranging from Falun Gong, HIV carriers in defending their
rights, earthquake victims (such as Hong Chun case), Tibetans (such as
Phurbu Tsering Rinpoche the living Buddha and Jigma Lama). I also
participated in the direct election of Beijing Lawyers Association.
Because of this, I was seriously persecuted by Beijing Municipal Bureau
of Justice and Beijing Lawyers Association. They joined forces in
trying to force the law firm where I worked not to renew our contract.
From the end of 2008 to March 2009, the head of Globe-Law Lawyers where
I worked talked with me on many occasions and told me that ``since we
work under them, we have to yield.'' ``We really can't endure the
pressure from the above (referring to Bureau of Justice and Beijing
Lawyers Association) and ``We shouldn't be closed (by Beijing Municipal
Bureau of Justice and Beijing Lawyers Association) just because of you
(representing people in cases involving human rights), etc.'' In the
2009 ``Annual Evaluation'' of attorneys, the great majority of Chinese
human rights attorneys who strictly adhere to law have failed to pass.
Six human rights attorneys from our law firm are all among these
attorneys who have failed to pass. They are myself, Li Heping, Li
Xiongbing, Li Fuchun, Wang Yajun and Guo Shaofei. May 31, 2009, the
expiration date for the annual evaluation and we haven't been able to
engage in jobs as an attorney since then. Now, we not only can't accept
new human right cases, but we also have to stop on cases that we have
already accepted before this date, such as the case of Li Zhigang of
Shenyang (Falun Gong), He Hongchun case (a case from the earthquake
disaster areas), the case of Phurbu Tsering Rinpoche (case involving
Tibetan issues) and other human rights cases. When human rights
attorneys themselves are bogged down in a difficult situation, the
rights of the clients in human rights cases also lose their protection
instantly! Other human rights attorneys and I myself have made
inquiries at the relevant people at Beijing Municipal Bureau of Justice
and Beijing Lawyers Association, but nobody has given us an official
reply. So far, we still have not received any documents in writing
related to the result of our annual evaluation results. Yet, the hints
we have received from Beijing Municipal Bureau of Justice, Beijing
Lawyers Association and our own law firm show that our current
predicament has something to do with the cases we have accepted. At
about 11:20 a.m. on July 3, Attorney Zhang Xuebing, president of
Beijing Lawyers Association told us in the capacity as an ``attorney of
our own kind'':
``I know something about your issues. This issue is actually very
complicated. As the old saying goes: `Rome was not built in a day.
Doubtlessly, every human being enjoys the rights of freedom and
equality because of the creation by God' and it is not that easy to
solve this problem. You'd better talk with your superiors, and I'm
afraid you still have to find a way to win the trust of the Party and
the government! ''
Starting from 2006, I have always been placed on house arrest on
June 4 anniversaries, October 1, the Beijing Olympics and state visits
by important diplomats
(including China--Africa Forum on Cooperation, visit in 2008 by
Congressmen Wolf and Smith). Though I was in America when U.S.
Secretary of State Hillary Clinton visited China, my family was
harassed on many occasions by the police. From June 3 to June 7 of
2009, the police were deployed at my door and prohibited me from
leaving the house. They threatened me with my personal safety and the
safety of my wife and my daughter.
No matter how we suffer, we the human rights attorneys will still
adhere to our own belief and will never give up our efforts in winning
and defending human rights. In the meantime, we also call on the people
who live in the free world and under rule of law to show concern to the
efforts made by Chinese people in winning and defending human rights.
This is because as long as there are still members of the human race
who live in fears and lack of freedom, the enjoyment of freedom and
human rights is very likely to be short-lived.
* * *
Fighting for Rights Continues Even as Persecution Escalates--A Human
Rights Attorney's Experience and Perseverance
tang jitian
My name is Tang Jitian. I am male of Han nationality. I was born in
Jilin, China, on September 1, 1968. I am currently residing in Chaoyang
District, Beijing Municipality, China. I started practicing law in 2005
and relocated from Guangdong to practice law in Beijing in 2007. I am
now a practicing attorney with Anhui Law Firm of Beijing.
Since August 2008, my normal law practice has been seriously
interrupted. At the beginning, I was notified several times by my
former law firm (Beijing Haodong Law Firm) that my contract would be
terminated ahead of schedule or I should cease my practice. The reason
was that the Beijing Municipal Judicial Bureau and Beijing Lawyers
Association were infuriated by my and other colleagues' call for direct
election of Beijing Lawyers Association. I found my current law firm
before my contract of employment expired, but during the course of
transfer, my case was unreasonably delayed for nearly twenty days by
the judicial administrative department and Beijing Lawyers Association.
(The processing clerk said in private that the same thing happened to
all those on the blacklist.) Since June 2009, the government has again,
in a disguised form, deprived me of my right to practice law. But I
have not committed any violation of law or regulations. And my work as
an attorney has never been criticized or complained about by my
clients. On the contrary, many people, including my clients, often
spoke to me directly or on the phone or in their letters about my work,
praising me for defending human rights in accordance with law. They
encouraged me to overcome the pressure and oppression from the
government by giving me their support. They, of course, also felt
worried about my situation.
The reason I was suppressed and persecuted by the government is
that as an attorney I was involved in quite a lot of work defending
human rights. About a week before I was forced to stop practicing law,
a police officer named Wang from the General Domestic Security
Protection Squad of Beijing Municipal Public Security Bureau called to
make an appointment for a talk with me. His demand was rejected by me.
(In April, Wang, together with Sun Di, head of the Domestic Security
Department and a police officer surnamed Han, had already talked with
me regarding the issues such as Charter 08, representation of cases,
and the direct election of Beijing Lawyers Association.) After that,
Sun Di again called me, demanding that we have a talk. After he was
rejected by me, he threatened me by saying that he could find me
through other methods.
Soon afterwards, after six o'clock on the morning of June 3, 2009,
under the pretext that we needed to cooperate with an investigation of
a case of so-called burglary that had taken place, Attorney Lan Zhixue
and I were first prohibited from going out freely. Then we were taken
to the Sijiqing Police Station in Haidian District, Beijing
Municipality. After they had interrogated me and taken a written
record, the police officers at that station unreasonably and illegally
detained me till eight o'clock in the evening. That night when I was on
my way back to my residence, I was followed and stalked by police
officers Lu Yonghui and Zhang Jian from the Domestic Security
Protection Squad of Public Security Branch of Haidian District, Beijing
Municipality as well as police officers Li Jing and Shi from Sijiqing
Police Station. This continued till dawn on the 4th. Later, these
police officers sent for additional police officers. Blocking attorney
Dong Qianyong, who was with me, they forcibly pushed me into the car
and drove me to their secret detention spot. (It is now known that this
place is called Kao Fu Te Sports Training Center and is in the vicinity
of the Linglong Bridge in Haidian District.) In the few days that
followed, they arranged police officers and security guards to keep
watch over me, forbidding me to contact the outside world. Furthermore,
I was not allowed to step out of the room at all. During my detention,
Lu Yonghui from the Domestic Security Protection Squad and the police
officer named He who later joined him held several rounds of what they
called exchange of communications, asking me not to get involved with
human rights cases (such as the cases of Falun Gong), and not to demand
rights from the Judicial Bureau and the Lawyers Association, and not to
take part in any social affairs that will irk the government. They
stated several times that if I did not cooperate, I could have trouble
living and working in Beijing. On June 6, I was transferred to a hotel
(I later learned that it was called Dong Lun Xin Xing Hotel) in
Chaoyang District where I was held in custody till the evening of June
7 when I regained my freedom. In the past few days, at the request of
the police, the owner of the house that I have been renting has asked
me to move out and relocate somewhere else.
Over the past few years, as an attorney I have been mainly engaged
in defending citizens' right to freedom of expression, right to freedom
of religion, right to housing, right to land, and other fields of human
rights. It is exactly for these works that I was repudiated and treated
with hostility by the government. These works include legal defense for
persecuted believers such as Falun Gong practitioners, representation
of Wang Zhaojun whose right to freedom of speech and expression was
infringed upon by Sina.com (Wang's blog site was shut down by Sina.com
because he published ``A Letter to the Chinese People''), and advocacy
of the rights of the farmers who have lost their land as well as
advocacy of the right to equal employment.
With regard to defending our own rights as attorneys, my efforts
focusing on pushing for direct election of Beijing Lawyers Association
have also become one of the major reasons why some officials have
identified me as a ``non-mainstream'' attorney.
Since April 2009, making illegal use of the annual evaluation,
Beijing Municipal Bureau of Justice and Beijing Lawyers Association
have instructed the Judicial Bureau of Chongwen District several times
to have the law firm under its jurisdiction fire me, stating that if
attorneys like me were not fired, then the law firm would be subject to
rectification and reform indefinitely.
As of today, there has been no change whatsoever in my situation
where the government, by subjecting me to an illegal annual evaluation,
has in a disguised form, deprived me of my right to practice law.
* * *
Practicing Law Under Ubiquitous Pressure
li xiongbing
My name is Li Xiongbing, and I am male of Han nationality. I was
born in Hubei, China, on September 18, 1973, and I'm currently residing
in Tongzhou District, Beijing Municipality, People's Republic of China.
Since 2005 I have been working as a practicing attorney at Beijing
Globe-Law Firm.
After the registration of my attorney license was postponed in 2008
by Beijing Municipal Bureau of Justice on the grounds that I had
``handled sensitive cases,'' my qualification as an attorney and my
right to practice law has again been arbitrarily revoked by Beijing
Municipal Bureau of Justice since June 2009. However, I have never
committed any violations of law or regulations, and my work as an
attorney has never been blamed or criticized by my clients. On the
contrary, many of my clients and members of the general public often
call me or write to me to praise my work, encouraging me to overcome
the pressure from public powers and become an outstanding human rights
attorney.
The frequent suppression and persecution I have suffered while
working as an attorney are directly linked with my advocacy for human
rights. Precisely on the morning of May 31, 2009, the day when my work
as an attorney was about to be illegally terminated, two police
officers from Domestic Security Protection Squad from the Beijing
Municipal Public Security Bureau made an appointment to talk with me.
They expressly gave me two warnings. First, that I should not defend
Falun Gong practitioners ever again. Second, that I should not
participate again in the relevant work of a non-governmental
organization dedicated to pushing for the rule of law and human rights
progress. I persisted in practicing my profession independently in
accordance with law and rejected their unreasonable demands.
As expected, soon afterwards, I failed to pass the annual
evaluation for my attorney license, and I was unable to practice law.
Starting from June 2, I was monitored and followed by police officers
or police cars for eight days in a row and was not allowed to go to any
place without prior approval from the police and meet with anyone
without prior approval of the police. It was not until the evening of
June 9 that I regained my freedom. In addition, on the evening of June
5, at the request of the police, the owner of the house that I was
renting came to my home, asking us to move out and leave Beijing. The
kindergarten my child was attending was also harassed by the police and
had to relocate to a place far away from my residence. My pregnant wife
was also questioned and investigated several times by the relevant
departments due to her lack of a so-called ``pregnancy permit'' and,
she received warnings and threats.
Over the past few years, my work as an attorney has been mainly
concentrated on these areas: advocacy of civil rights such as citizens'
right to freedom of expression, the right to freedom of religion, and
equal rights as well as public legal services. It is exactly for the
work in these areas that I was repudiated and treated with hostility by
the government. My work includes the case of Qi Chonghuai, a journalist
for Legal Times, involving the freedom of speech; the case of Yuan
Xianchen, a human rights worker in Heilongjiang province, involving
instigation of the subversion of the government; the case of providing
legal assistance to victims of Sanlu poisonous milk powder; the case of
providing legal assistance to victims of child slavery in ``illegal
brick kilns'' in Shanxi, as well as legal defense cases involving
religious persecution of believers such as those of ``Falun Gong'' and
the faction of ``Three Grades of Servants.''
At the end of 2008, because I provided legal assistance to the
victims of toxic Sanlu milk powder, I was warned and threatened several
times by Beijing Municipal Bureau of Justice, Beijing Lawyers
Association, and other departments. In the summer of 2008, I was also
suppressed and threatened several times by Beijing Municipal Bureau of
Justice, because I had provided legal assistance to the families of
children victimized in the earthquake disaster area, and was forced to
stop providing legal aid.
As recently as the morning of June 30, 2009, Huang Weizhong, a
believer of Falun Gong in Jiamusi Municipality of Heilongjiang
Province, was detained and tried. I took the case in April 2009 and
acted as a defense attorney for Huang Weizhong. However, when the court
trial started on the morning of June 30, the People's Court in the
suburbs of Jiamusi Municipality blocked me from entering the court to
perform my job as an attorney on the grounds that I failed to pass the
annual evaluation Beijing Municipal Bureau of Justice. Without having
me present as his defense attorney, Huang Weizhong was sentenced to
three years of imprisonment.
* * *
Defending Rights in Hardship and on a Thin Line
wen haibo
Personal resume: Wen Haibo is a male of Han nationality. He was
born in Liaoning, People's Republic of China in 1980. Currently, he
resides in Chaoyang District, Beijing Municipality, PR China. He
started his career as an attorney in 2004 and once worked at Shengzhi
Law Office and Yitong Law Firm. Currently, he is a practicing attorney
in Shunhe Law Firm of Beijing.
From November 2005 to March 2009, Shengzhi Law Office and Yitong
Law Firm, both places where I once worked, were given administrative
penalties of ``suspending business for reorganization'' due to
different but groundless reasons given by judicial authorities of
Beijing. The true reasons were none other than that these law firms had
gotten involved with or had participated in some cases and incidents
with which the authorities were not pleased.
I started working with Attorney Gao Zhisheng in April 2004 until
the law firm was shut down in November 2005, and I was forced to leave.
During this time, both Attorney Gao and I represented a large number of
people from socially disadvantaged groups in defending their rights.
When we began to defend the rights of Falun Gong adherents in 2005, the
suppression we suffered escalated gradually. At first, the judicial
authorities or the people working in Beijing Lawyers Association
constantly made appointments with us for talks where they gave us a
warning of ``not allowing you to accept Falun Gong cases.'' After that,
the police constantly harassed, stalked us and videotaped us without
permission. At the end of 2005, after Attorney Gao launched a campaign
of ``hunger strike to fight against violence,'' I and several other
people working in the law firm were one by one placed under house
arrest. When I was under house arrest,, several plainclothes policemen
stayed downstairs 24 hours a day, and they did not allow me to go out.
When I had to go out (such as for shopping), someone shadowed me
closely. This lasted 45 days.
I left Shengzhi Law Office at the end of 2005 and went to work at
Yitong Law Firm. During this time, besides defending the rights of
Falun Gong adherents, I also signed in with the attorneys' delegation
to provide legal assistance for the Tibetans arrested during the March
14 Incident in Tibet. The signatures for that delegation brought such a
great repercussion that about 10 attorneys who joined the delegation
all received warnings from the judicial authorities and the police. The
police station in charge of my area also made an appointment with me
for a talk. They threatened me and told me to leave Beijing. I flatly
refused. In the second half of 2008, I also joined the movement of
calling for ``the direct election of Beijing Lawyers Association.'' The
mention of ``direct election'' obviously touched the frail nerves of
some people in the judicial departments. They counterattacked in a high
profile way, and denouncing us as ``linking up with each other in
private, using democratic election as a signpost, publishing seditious
remarks, spreading rumors among the lawyers in Beijing to bewitch the
people,'' ``attempting to break away from the supervision and guidance
of the judicial administrative departments and the administration of
the Lawyers Association in order to deny full-scale the current
administrative system on attorneys, the judicial system and even the
political system.''
As many attorneys from Yitong Law Firm joined in calling for
``direct election,'' the judicial authorities intended to ``kill one as
a warning to many others'' and suspended Yitong Law Firm for
reorganization.
When Yitong Law Firm was shut down at the end of 2008, I was again
forced to transfer, this time to Shunhe Law Firm. Since I did not stop
getting involved in various cases of human rights and mass groups
defending their rights, I brought suppression here, too. Since I did
not pass the annual evaluation by Beijing Lawyers Association, I cannot
practice normally at this time, and several cases I have accepted
before were forced to stop.
Though I have met temporary (possibly long-term or permanent)
difficulties in my work, I have received the encouragement and support
from my clients and other friends. With this encouragement and support,
I do not feel lonely and will continue walking along this road!