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Reflections on a Wandering Life.....
Tuesday, September 19, 2006
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 victimÂs 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 countryÂs 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. ChenÂs 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.