Eric's Beijing Diary

OK, folks. An update on the self-taught lawyer in Shandong province who was sentenced to four years in prison. I have some things to say about this, but I'll let you read the story first, from the weekend edition (Friday, Saturday and Sunday, November 3-5, 2006) of the Wall Street Journal Asia Edition:

China's Political Courts

By Teng Biao
And Zhang Zuhua

BEIJING--In China, legal decisions in politically sensitive cases aren't subject to public accountability. The process, hidden behind closed doors, is steered by political--not judicial--authorities. This has been true for decades, and was proven true again this week in the appellate case of Chen Guangcheng, China's blind, "barefoot" lawyer.

On Monday, the Linyi City Intermediate People's Court in Shandong province overturned Mr. Chen's four-year prison sentence, and remanded his case for retrial at the local court in Yinan county, where Mr. Chen was originally convicted.

That first trial, held in August, was a sham. Mr. Chen had angered local officials in 2005 by documenting forced abortions and sterilizations. After putting him under house arrest and then detaining him for a total of nine months, local Party officials arrested him on trumped-up charges of "international destruction of property" and "gathering crowds to obstruct traffic."

Mr. Chen's initial, two hour closed-door hearing was barred to all but his three brothers. His legal team, of which I was a member, was replaced by two government-appointed lawyers, against Mr. Chen's wishes. The two new lawyers never met Mr. Chen before the trail, read any of his case files, nor offered a credible defense. They only parroted the prosecution's case. Unsurprisingly, Mr. Chen was sentenced to four years and three months in prison.

The appeals process was similarly secretive. This time, our defense team was armed with extensive supporting testimony from hundreds of eyewitnesses. But in mid-October, while awaiting notice of a court date, we suddenly learned that the court had already finalized a ruling without releasing its decision to the public. Mr. Chen's family had been kept in the dark, too.

While we were relieved that this latest decision favored Mr. Chen, China's judicial process remains as opaque as ever. Reversals of verdict in politically charged cases are rare. Last year, when the Hunan Intermediate Court upheld a 10-year sentence against journalist Shi Tao, its decision was likewise shrouded in secrecy. In that case, as well, the decision was rendered without hearing arguments from Mr. Shi's lawyers. Countless other cases in China have followed a similar pattern.

Why, then, was the decision in Mr. Chen's case different? One can only guess, as Liyunyi court officials have explained nothing. But it seems implausible that any professional legal review was involved.

We know that local authorities in Yinan County were angry at Mr. Chen for exposing their abusive birth-control methods. When the travesty of the subsequent arrest and conviction of Mr. Chen drew international attention, political considerations at higher levels—most likely from Beijing—may have come into play. The remanding of Mr. Chen's case thus seems to be the fruit of his courageous supporters inside China, as well as their friends in international human-rights groups.

Cynics might object that only those who are individually noticed and championed seem to receive any justice in China. A vast, silent majority of victims languish without attention or justice. Indeed, it could be argued that a frightened and paranoid government might even double its abusive efforts to stifle this growing opposition.

Still, the fight remains worthwhile. The Yinan County court now has, according to the law, six weeks within which to conduct a new trial based on the existing evidence, or to order an entirely new investigation. For Mr. Chen personally, it means a chance to avoid imprisonment in squalor. And for China as a whole, one can only hope that the continued pressure brought on by rights defenders against legal abuse might bring about long-term change.

Vaclav Havel, during similar struggles in communist Czechoslovakia in the 1970s, wrote that "demanding that the laws be upheld is thus an act of ‘living in truth,' which threatens the whole mendacious structure of its point of maximum mendacity." If China has an independent judiciary three decades from now, we might look back on the Chen Guangcheng case as having played a role. (Teng Biao is one of Mr. Chen's lawyers, and Zhang Zuhua is a pro-democracy activist.)

As you can see from this article, the sentence handed out to Chen Guangcheng was overturned by the appeals court, which is good news, but the manner in which it was done is more than a little disconcerting. Ordinarily, appeals courts are supposed to hear arguments from the defendant's lawyers relative to the propriety of the original trial. But the appeals court made the ruling without hearing any arguments! Clearly, this ruling was dictated, which affirms what critics of China's legal process have been saying for a long time. Judicial decisions in China are not independent. Judges are not allowed to make decisions based on the law. They can actually be ordered by the party to rule one way or the other. Perhaps one could argue that the actions of the lower court were so egregious that the appeals court's decision was foregone. Nevertheless, a court decision without argument does not give much assurance to those who want to believe that blind justice is the only determinant of judgment.

In America, the opposite problem prevails. Recently, the New Jersey supreme court ruled that the legislature must pass laws accommodating same-sex relationships. Here is their decision:

Although we cannot find that a fundamental right to same-sex marriage exists in this state, the unequal dispensation of rights and benefits to committed same-sex partners can no longer be tolerated under our state Constitution.

No longer?? If there current law is unconstitutional, it has been unconstitutional from the time it was written. Such decisions are supposed to correct the injustice created by the very writing of the unconstitutional law. Laws do not somehow slowly become unconstitutional over time. This business of Supreme Court judges changing law by reinterpreting constitutions is an abuse and completely unlawful extension of their authority. A very similar trend is developing in Japan, where, in the wake of North Korea's saber rattling, there is talk of changing the constitution to allow Japan to build up its military. But the issue is politically charged, and some feel that the process of amending the constitution would be too lengthy and troublesome, so there is some suggestion that the courts may have to "reinterpret" the constitution. This is China's problem in reverse. In China, we see the lack of independence of the judiciary, while in the West, we see the tyranny of the judiciary. Laws are not made by elected representatives; they are made by unelected judicial tyrants.

Labels: Chen Guangcheng, Human Rights, Samesexuality

One story I have been following recently is the saga of a blind, self-taught lawyer who has just been sentenced to four years in prison because he was trying to help poor people in the countryside who were trying to avoid forced sterilization and/or abortion. Until now, I have hesitated to say much about this case, because I could never seem to nail down a definite set of facts. But the other day, I was reading the Wall Street Journal, and noticed a statement by Chen Guangcheng's lawyers that confirmed to me what had actually happened.

There are two sides to every story. I do not want to be counted among those who always assume that the government is bad, and that those who take a stand against the government are heroes. Many times they are trouble makers. I always want to hear both sides of the story, and I try to grant equal credibility to both sides until I have heard all the "facts." But this time the government does not deserve to be believed, because they have intimidated and harassed the accused man's lawyers and prevented him from having a fair hearing. I am certainly not among those who jump to lash out at China, and, in fact, I think that many negative stories about China are unfairly slanted. China is getting better. Tort law is improving, and the grievances of those who have been maligned by the system are being redressed more than they used to be. But I am still hearing far too many stories about lawyers being beaten, harassed, threatened, and even incarcerated for defending their clients too aggressively. This really does need to stop, and it needs to stop now. If it does not, China will be heaped with a scorn and ridicule that will far outweigh any perceived benefit the Olympics promises to provide.

I have often said that the right to aggressive defense is the key to reform in China's legal system. My friend who was a judge in the countryside told me that he was more concerned about the independence of the judiciary. That got me thinking, because that is a problem that is not always easy to see from the outside. How does anyone know whether a judges decision is based on blind justice or the arbitrary order of an intimidating party boss? So I will put the two together--the right to aggressive defense and the independence of the judiciary.

How does one hope to implement needed reforms? It really comes down to an examination of values. The Chinese need to ask, "Do we really believe in the presumption of innocence, and encourage a system that protects the right of the accused to be presumed innocent until proven guilty, or do we tolerate a system where an individual the 'system' believes to be guilty is coerced into providing the testimony that the government needs to convict him?" China has made many changes, and is to be commended for this. But now it is time to make the changes that are needed to construct a legal system whereby those who are maligned by a corrupt system have lawful redress.

I would issue one caution when examining this case. Remember, this is a local court decision and the case is on appeal. Some in the West are inclined to conclude too quickly that everything bad that happens in China is personally ordered from Beijing. This is far from true. China is a huge country, and very difficult to govern. We must be patient. We can hope that the higher court will do justice and emphatically repudiate the unconscionable actions of the lower court. Here, then, is the full text of the statement of Chen Guangcheng's five Beijing lawyers as it appeared in the Asia Wall Street Journal:

Chen Guangcheng, a blind advocate for the rights of Chinese villagers, recently made headlines around the world when he was sentenced to four years and three months in prison. But, as his chosen lawyers, we were prevented from presenting a fair defense by obstacles erected by Chinese authorities. A local court imposed unacceptable terms on us defending our client at his Aug. 18 trial. Before the trial, we had been detained by the police, intimidated, and one lawyer was not freed until the trial was over. Except for Mr. Chen's three brothers, no other member of the public--not even his wife and mother--were allowed to attend the two-hour hearing.

That's why we are using these columns to outline the defense that was never presented in court, and explain how our client was convicted of crimes he did not commit. In those closed-door proceedings, Chinese officials punished Mr. Chen for exposing their own criminal activities--forcing villagers to undergo sterilizations and forced abortions, even though these are officially illegal under Chinese law.

Had we not been barred from the courtroom, we would have argued that the trial was unlawful. The two government-appointed lawyers, whom Mr. Chen refused to accept, had never met him before the trial nor read any of the files on his case. They did not offer any defense during the hearing, but merely repeated everything the prosecutors said.

The pretrial process also violated Chinese law and infringed basic human-rights principles. A self-taught lawyer, Mr. Chen has long helped the disabled and peasants fight illegal taxes and environmental pollution. In June 2005, he filed a class-action lawsuit accusing local officials in Yinan County, in northeastern Shandong province, of forcing peasants to undergo abortions or sterilizations in order to meet birth control quotas. Two officials placed Mr. Chen under house arrest. Then in March this year he was taken away by the police. When we were finally allowed to meet Mr. Chen in June, he told us that police had verbally abused him, threatened his life, and once deprived him of sleep for three days.

Ever since the first of us took on Chen's case in September last year, we have been pressured by local authorities to drop it. When we refused to do so, we were beaten and intercepted by government officials as we tried to carry out investigations and collect evidence.

Both of the charges on which Mr. Chen was convicted are groundless. The first, "intentional destruction of property," is based on a clash on Feb. 15 this year between villagers and police, who had beaten another villager protesting Mr. Chen's illegal house arrest. But it was local officials, rather than Mr. Chen, who were responsible for inciting this incident by carrying out that beating. People we interviewed said the villagers did no more than push police vehicles into a roadside ditch, and that they only acted in this way because police refused to take the victim’s grandmother to hospital after she passed out upon hearing of the beating.

As for the second charge of "gathering crowds to obstruct traffic," once again it was the police, not Mr. Chen, who were responsible for this. On March 11, guards used by the local authorities to enforce the house arrest beat up another villager trying to meet Mr. Chen. Angry villagers then clashed with the guards and succeeded in getting Mr. Chen out of his house so that he could accompany them to the local government office to protest. As they tried to get rides into town, police and guards surrounded them and temporarily stopped traffic until they could wrestle Mr. Chen and two other villagers into police cars and take them into custody.

The prosecutors introduced testimony from other detained villagers, accusing Mr. Chen of inciting property destruction. But lawyers representing these villagers were similarly never allowed to meet with them. Nor were they allowed to cross-examine these "witnesses." Family members of these villagers, who were detained for supporting Mr. Chen, said that they were mistreated in jail and forced to testify against Mr. Chen.

The real criminal suspects in this case are the officials responsible for obstructing justice and undermining the country’s legal reform. These local officials could hardly have acted with such contempt and disregard for the law unless they had been given the green light by authorities higher up in the government. Nonetheless, in appealing Mr. Chen’s case to a higher court, we will act on the assumption that the country's legal system can, without official interference, deliver a fair verdict and remedy wrongs. This may prove to be too optimistic. But we can only find out by fighting for justice, case by case, one client at a time.

Li Jinsong
Zhang Lihui
Li Fangping
Teng Biao
Xu Ziyong

Labels: Abortion, Chen Guangcheng, Human Rights