It’s a precarious job but there seem to be a growing list of lawyers in China who wish to dfend members of the public against vested interests and we applaud them.
This South China Morning Post article published yesterday and made available to us via the China Law Discussion list highlights some of these lawyers pursuing this work …make a point of reading the mini biographies at the end of the article of some of the lawyers featured in this SCMP story
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Legal crusaders on the march
The mainland public defenders who want to reform the system
When a 21-year-old pedicurist stabbed an official to death in Hubei province on May 10, she was detained on murder charges and expected to be executed. Then two lawyers from Beijing took up her case, at no charge. Xia Lin and Xia Nan argued that Deng Yujiao was threatened with rape and had acted in self-defence. After her trial on June 16, she walked free, found guilty of intentional assault but released because of her mental state. The two Xias, and a local legal team subsequently hired to represent her in court, helped to save Deng’s life.
The pair, partners at the 11-year-old Beijing Huayi Law Firm, are part of the mainland’s small but growing number of public interest lawyers, prepared to take on cases for no fee which they consider of public significance. They, and the expanding non-governmental organisation sector, are part of the new building blocks of civil society. These lawyers are different to the exiled dissident movement and other opponents of the communist government in that they accept the existing system and work within the law.
They believe the system can be reformed by improving the legal system, better implementation of existing laws and regulations and increased freedom of the media. Zhou Xiaozheng , professor of sociology at Renmin University, said public interest law firms were still very weak. “They face very powerful opponents in the form of interest groups with money and power. They constantly upset corrupt officials and local governments, which lead them into difficulty. But I hope that they spread like prairie fires, fanned by the wind,” he said. The best known of these lawyers is Xu Zhiyong , one of the founders of the Open Constitution Initiative (OCI), a group set up in 2003 to promote the rule of law and greater protection for people under the constitution.
In July this year, the government closed OCI, declaring it illegal, fining it 1.46 million yuan (HK$1.66 million) and arresting Xu on charges of tax evasion. After an international uproar and mass protests by Chinese Web users, Xu was released on bail on August 23. The future of his case is unclear. But the mainland gives more leeway to these public defenders than those who set up political parties. Last Tuesday, a court in Changsha sentenced Xie Changfa , a 57-year-old former factory worker, to 13 years in prison for subverting state power after he tried to organise a meeting of the banned China Democracy Party. His lawyer, Ma Gangquan , argued that establishing such a party was the constitutional right of every Chinese. This difference in treatment reflects the relative threat that the Communist Party sees in the two groups.
Despite the resistance to change, these ground-breaking lawyers believe that three decades of rapid economic growth, the spread of tertiary education, intense contact with the outside world and the largest number of internet users on earth have created the conditions for the mainland to make a peaceful transformation into a modern, civil society, like other countries in East Asia. As lawyers, they see the legal system as their vehicle for creating such a civil society, with a better level of official and corporate governance. They are highly educated, many with degrees from foreign universities, idealistic and motivated; they use lawsuits and legal submissions to the government and not street protests or civil disobedience. An important tool in their struggle is the internet, the form of communication that is hardest for the government to control. They argue their cases and speak to the public through their blogs and their websites, using public opinion as a powerful weapon. This enables them to bypass the state media that remains tightly regulated.
They argue that new ways other than violence must be found to settle social conflict. According to an official report by the Social Order and Control Commission under the party’s Central Committee, more than 12.1 million people took part in 127,000 unauthorised protests last year, in which 1,844 people were killed or injured, including 1,120 police, armed police or other officials. So far, the lawyers’ impact on government and policymaking has been limited. They face powerful and well-financed interest groups, like the security forces, major state companies, local governments and much of the judiciary, all of which have better access to the government and the decision-making process. OCI took up sensitive cases it considered of important public interest, including litigation on behalf of victims of the tainted milk powder scandal last year, support for petitioners and reform of many aspects of the legal system.
This was Xu’s mission statement: “We are responsible Chinese citizens, who completely understand the pressures and difficulties, abroad and at home, faced by the central government. We fully understand the impatience and difficulties of Chinese people facing an old system. We want to do our very best to do something for society. We are not critics, we are constructive. Everything we do is legal. We consider the pace at which society is progressing and the ability of the public to bear the strength of conservatism. We must act justly and virtuously.” In this spirit, OCI was set up as a non-profit NGO, charging no fees for its services and relying entirely on donations, to avoid accusations that it was working for money.
Xu and his colleagues made their name in 2003 by taking up the case of Sun Zhigang , a student at Wuhan University who was beaten to death on March 23 in a Guangzhou detention centre. They petitioned the National People’s Congress over the legality of the detention process, in place since 1982; astonishingly, within two months, the NPC abolished the detention law. The police reacted with fury, forcing the resignation of the editors of the Southern Metropolitan Daily in Guangzhou which had broken the story, and made Xu a marked man. Since then, the police have had Xu and the OCI in their sights, arguing that it interferes in their administration of justice and threatens “social stability”, the top priority of the government. It is no surprise that the closure of OCI came midway between the 20th anniversary of the 1989 military crackdown and the 60th anniversary of the foundation of the PRC. Another public interest group targeted by the police was the Beijing Yirenping Centre, which was founded in December 2006 and assists Aids patients, provides legal aid to disadvantaged groups and campaigns on public health issues. On July 27, Beijing police and culture officials raided its office in Beijing and seized 100 documents. In a statement, the centre said that the seizure was illegal because the two officers who carried it out did not have proper proof of identity and legal documents.
It said that, according to article 37 of the administrative punishment law, such seizures must be carried out by two authorised officers, and only one of the pair produced a legally valid identity card. It has also been a rough journey for Guo Jianmei , who set up the mainland’s first non-official legal aid centre for women in December 1995 in an underground hotel in the Zhongguancun district of Beijing. Since then, it has handled more than 2,000 cases and provided free legal aid to thousands of women. It employs 12 people, with Guo, the director, having the highest salary of 6,000 yuan a month. Guo was inspired to set up the centre after attending the World Women’s Conference in Beijing in September 1995. “I grew up in poverty and was treated with disdain and ridicule,” she said. “I developed a sympathy for the poor and disadvantaged. “Public interest litigation is the new priority to protect the legal rights of women,” she said. “This will help to influence and promote formulation of laws and policy to protect women.” For years, her legal classmates ridiculed her for doing public interest work, calling her an idiot to forgo the substantial earnings of a commercial lawyer. Now her centre is well established and receives overseas work, including from the United Nations. Renmin University’s Zhou said public interest firms had legal knowledge but this was inadequate, while failure to implement and enforce the law was so widespread. “You cannot rely on the laws,” Zhou said. “The absence of law is very widespread.
It will take at least 30 years for China to become a country that is really based on law. The closure of OCI may not have to do with specific cases it was working on but was in line with general policies set from above. More such things will happen before the 60th anniversary [on October 1].” A western diplomat in Beijing said the closure showed that OCI had raised important public issues and angered the authorities. “These are very idealistic people,” the diplomat said. “They know how to take issues that touch the public, like the deterioration of the environment and corruption in education and health. In one way, the closure is a sign of their success. “But, in the overall picture, they are like a mantis trying to stop a chariot (tang bi dang che ). The government can do what it wants. It saw what happened in Iran and does not want a repeat.” The closure of OCI is a victory for the hardliners in the fierce policy debate in Beijing. They argue that the absolute control of the party is the essential element in the country’s astonishing economic success of the past 30 years and must not be threatened. Such law firms challenge and question the legal system, they say. They see a long-term struggle with “foreign hostile forces” that seek to overthrow the Communist Party.
Many public interest law firms and NGOs do have links with, and/or receive money from, foreign sources. OCI has worked with Yale University’s China Law Centre since 2004. So, while the public interest law firms have helped thousands, offering many of them their only opportunity for legal representation, their battle to secure a society based on the rule of law has only just begun.
On a mission to keep the nation honest
Xu Zhiyong : born in 1973 in a rural county in Henan province, he obtained bachelor of arts and master of arts degrees in law from Lanzhou university. In 1999, he entered the law college of Beijing University. In 2003, he was elected to the Haidian district People’s Congress (in Beijing) as an independent. In 2003, he and other lawyers sent a petition to the National People’s Congress arguing that the police detention system was unconstitutional. The NPC accepted the petition and abolished the system. In 2003, he and three other lawyers set up the Open Constitution Initiative (OCI). In July this year, the government closed OCI and fined it 1.46 million yuan (HK$1.66 million) for tax violations. It arrested Xu but bailed him on August 23, after international protests and an outcry among Chinese internet users.
Guo Jianmei : born in a poor village in Anyang district, Henan . In the 1979 national university entrance examinations she became the first student from Anyang to enter Beijing University’s law faculty. After graduation, she worked as a legal adviser to the All China Women’s Federation and helped draft a law to protect the rights and interests of women. Inspired by the World Women’s Conference in Beijing in 1995, she resigned her position as assistant editor on the China Lawyer magazine and set up a centre at Beijing University to provide legal aid and support to women. Now with a staff of 12, it has handled more than 2,000 cases and helped represent thousands of women. Guo has travelled widely abroad to take part in international conferences on the legal protection of women.
Xia Lin : born in September 1970 and a graduate from Southwest Politics and Law University, he works in Beijing Hua Yi Law Firm. He commented on the judgment brought down against Deng Yujiao, the 21-year-old Beijing girl originally charged with murdering an official who tried to rape her, but who was acquitted on lesser charges, partly with Xia’s help: “We can accept the decision to set her free, from the point of view of her personal interest. But we express deep regret over the judgment of ‘intentional assault’ and ‘mental problems’; there were many procedural problems in this case. But we deeply believe that, in any case, the truth will emerge in the end and the stones will appear above the water. We congratulate Deng Yujiao on her freedom and hope that she can soon leave behind this dark shadow.”
Xie Yanyi: 35, is from Guangdong province, and a member of Beijing Gongxin Law Firm. He has specialised in cases involving intellectual property rights on the internet. In August this year, he sued Li Yizhong , the minister of industry and information technology, over the (initially) compulsory use of the “Green Dam Youth Escort” filtering software on mainland computers, citing invasion of e-communications and personal freedoms, improper use of power and misuse of government authority. Xie said that the order contravened article one of the constitution which protects the right of citizens to information. He has also campaigned against the “reform through labour” system, in place since August 1958, which he argues is illegal. It allows police to detain people without charge.
Li Xiongbing : a lawyer with Gao Bo Xiang Hua law firm, Beijing. He has a BA in economics from Changsha Electricity College and a BA in law from Wuhan University. He has worked with Xu Zhiyong on sensitive cases, including attempts to gain compensation for victims of industrial accidents, the contaminated milk powder scandal and has defended journalists. At 4am on a January morning this year, police arrived at his Beijing house and ordered him to come to the local police station. “This was illegal,” he said. “My family were also disturbed. When I go away on trips, unidentified men go to my house and ask where I am. I have received unidentified telephone calls … I have received telephone calls from different departments warning me to drop legal action on behalf of the victims of the milk powder scandal.”
