This article was first published in China Change website on March 2, 2018
Minister Zhang Jun:
We are among the lawyers who have been disbarred or prevented from practicing as a result of coordinated suppression by the Ministry of Justice in the year 2017.
We are well aware that open letters are regularly received by ministries, commissions, and high officials in the Party, state, and military — some angry, some polite, some beseeching… letters of every kind imaginable. There are simply too many people who, unable to find redress anywhere else, will put their hopes in making direct appeal to officials. Whereas local officials may occasionally respond to letters, writing to high-ranking officials in Party Central is like tossing a rock into the ocean.
There are also many, in particular human rights lawyers, who act with goodwill, out of a concern for the people and the country, and write to high officials of various ranks. In the end they often meet with trouble of various sorts — the loss of licences to practice law, or even the loss of their personal freedom and retribution of all kinds. A recent example is lawyer Yu Wensheng (余文生) who wrote to the National People’s Congress with suggestions about appointments, dismissals, and constitutional amendments. Subsequently his license was revoked, and he was detained on the baseless charge of “obstructing official business” (妨碍公务罪), and in the end was formally arrested and charged with “incitement to subvert state power.” He was then placed under residential surveillance at a designated location.
For another example, veteran lawyers Cheng Hai (程海) and Zhou Lihui (邹丽惠), among others, wrote you an open letter in October 2017 — a sincere, respectful, evidenced, and thoroughly rational address. Yet merely days after the new year, Cheng Hai’s law firm was forcibly shut down, and a lawyer who had heretofore proudly called himself a “rule-of-law lawyer” faced the threat of losing the right to practice, as many before him.
We, like many other lawyers, once hoped that you, as the newly-appointed Minister of Justice, would treat lawyers well. After all, you previously served as the vice president of the Supreme People’s Court, and prior to that you were a proud justice on the Supreme People’s Court of the People’s Republic of China. Though judges in China are often subject to political interference, we nonetheless placed in you some hope given that we, as you, all honor and trust the same legal system.
At the same time, we are fully aware that you have never been a friend to the lawyers of China, nor do you have reverence for the law of the land, whether as vice president of the Supreme People’s Court, or Minister of Justice today. You have also demonstrated poor judgment on political events. It’s a far cry for you to claim that you treat lawyers with “deep love and strict discipline.”
When the well-known “Xiaohe case” occurred in 2008, you were vice president of the Supreme People’s Court, and you disapproved of the brave lawyers who mounted vigorous defense in the court and belittled them as “trouble-maker lawyers.”
In 2009, when the case against lawyer Li Zhuang (李庄) for perjury emerged, despite the fact that the entire episode was clearly farcical from beginning to end, which any lawyer or judge could see was full of holes, as the vice president of the SPC you not only ignored that legal black hole, but even went about singing the praises of the “strike the black” campaign led by Bo Xilai in Chongqing. According to a May 10, 2011 report in NetEase, you once made the trip to Chongqing to hold a national criminal trial seminar and presented an “important speech”:
Under the leadership of Secretary Bo Xilai, Chongqing has launched a ‘sing red, strike black’ campaign, and has begun building ‘five Chongqings.’ The masses have obtained numerous tangible benefits… In criminal trials associated with ‘striking the black and purging the malefactors’ the Chongqing Judicial Bureau has persevered in the spirit of the rule of law. Severe crimes receive severe sentences, petty crimes are sentenced lightly, and the policy of ‘leniency and severity existing together’ is implemented in earnest. The Supreme People’s Court attaches a high level of importance to Chongqing’s campaign of ‘striking the black and purging the malefactors,’ giving it vigorous support, and seeing to it that trial and review work proceeds in an orderly and smooth manner. The municipal high court integrates Chongqing’s actual situation while also pursuing procedural justice and fairness, and guaranteeing real justice. Much of their work is at the forefront of the national court system. Many of the experiences in Chongqing’s ‘striking the black and purging the malefactors’ work is worthy of being digested and promulgated.
Yet within a year of your saying those words, a series of events took place, making your remarks at Chongqing particularly myopic and laughable.
On February 6, 2012, Wang Lijun (王立军), the leader of Chongqing’s ‘striking the black and purging the malefactors’ campaign and chief of the Chongqing Public Security Bureau, fled to the U.S. consulate in Chengdu.
On March 14, 2012, after the closing of the 5th meeting of the 11th National People’s Congress, Premier Wen Jiabao held a press conference with journalists in the Great Hall of the People. During his remarks, he addressed political system reform, and said: “After the smashing of the ‘Gang of Four’, though our Party made resolutions on a number of historical questions and implemented reform and opening up, yet the error of the Cultural Revolution, and the impact of feudalism, have not been completely eliminated.”
On April 10, 2012, it was announced that Bo Xilai had been put under investigation by the Central Commission for Discipline Inspection, for grave violations of Party discipline.
On September 22, 2013, the Jinan Municipal Intermediate People’s Court declared Bo Xilai guilty of bribery, corruption, and abuse of power, and sentenced him to life imprisonment and the lifelong deprivation of political rights.
As Minister of Justice, you declared that “lawyers are the friends of the public security bureau, the procuratorate, and the court.” You said that although it’s the job of lawyers to present opposing opinions in court that fall beyond what judges expect, thus bringing a certain degree of pressure upon the hearing of cases, “it’s precisely these lawyers exerting such impact that promotes justice in the judicial system.”
You said that in the early years, China was in a fix for having a lack of lawyers, but now you are concerned with how to provide better services for lawyers and how to create better conditions for lawyers to conduct their profession. This, you said, itself shows how rapidly the project of the rule of law in China has developed.
And again, for example, you made the new proposal that “lawyers associations should be at the forefront,” and you said that the treatment of lawyers should combine “strict discipline” with “deep love.” Thus, lawyers associations should establish two “centers” — one for defending lawyers’ rights, the other for issuing reprimands. You said that in order for lawyers associations to amply play the role of defending the rights of lawyers, the current system — whereby law firms and individual lawyers suffer professional harm for their activities, and are only able to be their own advocates, with limited results — should be changed.
Yet the fact is that merely a few days after you uttered these warm words, you put out a hit on lawyers: all across China, public security bureaus, procuratorates, courts, and judicial bureaus at every level began lodging cases and issuing complaints against lawyers. Upon your orders, judicial bureaus at every level have worked hand-in-glove with lawyers associations to wield a big stick: calling lawyers in for chats, issuing warnings, conducting secret investigations, filing cases against them, and dealing out punishments. The controls levied against lawyers are becoming more severe by the day, and they are faulted for whatever they do. Meanwhile, there has been no substantial change whatsoever in protecting their rights.
Judicial bureaus and lawyers associations at every level have been investigating the normal speech of lawyers, even subjecting them, at will, to administrative punishment on the slightest pretext. The Shandong lawyer Zhu Shengwu, or Zhejiang lawyer Wu Youshui, for instance, posted remarks on Weibo that had nothing to do with their vocation as lawyers, and which were clearly within the scope of normal comments authorized in the constitution for public supervision of state organs and employees — yet Zhu was disbarred and Wu was suspended.
When Shandong lawyer Li Jinxing, Guangdong lawyer Sui Muqing, and Hunan lawyer Wen Donghaitook on so-called “sensitive” cases, and in court put up a stiff resistance to the judges’ flagrantly illegal behavior, by your standard they ought to have been helping the judges administer justice according to the law, and safeguarding the true prestige of the court and impartiality of the justice system. Yet all the same, they were slandered as having disrupted court order, punished, and investigated.
The Yunnan lawyers Wang Liqian and Wang Longde, as well as the Shanghai lawyer Peng Yonghe, publicly withdrew their membership from their respective lawyers associations because those organizations could not truly protect their rights, and instead assisted in their repression. Judicial bureaus later sought out the lawyers for retaliation: Wang Liqian and Wang Longde were disbarred, and Peng Yonghe was sacked from his firm. The new firm he had been admitted into didn’t dare hire him after being intimidated by the local judicial bureau. To this day he still cannot practice.
Within the last six months, over 10 honest, reputable rights defense lawyers who dared to speak out were punished, harassed, or prevented from practicing, on completely unreasonable grounds. Numerous law firms and other lawyers have also been harassed, punished, “rectified,” or had their licenses cancelled.
We have seen the “strict discipline” part. Where is the “great love”? Before we were punished, our rights were seriously violated by the public security organs, the procuratorate, and the court. Our attempts to defend our rights via lawyers associations and judicial bureaus went nowhere. Hunan lawyer Wen Donghai, while handling a religious freedom case in Xinfu district, Xinzhou, Shanxi Province, was never given a copy of the case files. This persisted from police investigation, to indictment by the prosecutors, even to the day of trial where lawyer Wen and his client were not allowed to look at the case file to verify facts. In response to this flagrant violation of the Criminal Procedure Law, Wen Donghai hoped for the intervention of the Hunan Provincial Lawyers Association, and wrote to them demanding that they report the situation to the relevant judicial bureau, and also asked them to inform the All China Lawyers Association. Yet to this day Wen has not received a response from the Hunan Lawyers Association.
There has been an explosion of cases of lawyers having their rights trampled on by judicial organs. The “strict discipline” of lawyers has resulted in their being too intimidated to resist, while the abuses on the part of the judicial organs are only becoming more wanton and reckless. For example, lawyer Chi Susheng was expelled from a court in Shenyang, while lawyers Lu Tingge and Li Xiongbing, among others, were beaten at the Huili Municipal Court in Sichuan Province. There have been numerous instances of lawyers being illegally prevented from meeting clients, such as in the case of Yu Wensheng, or prevented from accessing case files, and so on.
Over the course of the ongoing 709 Crackdown directly against human rights lawyers, numerous parties and their defense lawyers have had their rights ignored. Wang Quanzhang has been detained for nearly 1,000 days and to this day has not seen a lawyer.
The “rectification” of lawyers today is similarly being conducted in the Party’s campaign mode, a continued illegal suppression following the 709 Crackdown. As vice president of the Supreme People’s Court, your inability or unwillingness to correct the lawless crackdown of Bo Xilai in Chongqing presaged the current movement-style rectification campaign currently roiling China.
The Scope and Character of the Current Campaign
A number of points are relevant for considering the scope and character of the present campaign.
Firstly, the campaign was a manipulated outcome after secretly investigating and establishing cases against, primarily, human rights lawyers. Lawyers are a product of the modern rule of law. In a market economy, those most suited to rendering judgement on lawyers are their own clients. Yet, of all the instances of human rights lawyers being accused of violating regulations since the second half of 2017, not a single one is a result of a client filing a complaint. To the contrary, the majority of these lawyers are of excellent repute in the legal community and they’re appreciated by their clients. Some of the investigations against them were launched by judicial bureaus, and the matters under investigation were not within the remit of their vocations, but related to their speech acts in other contexts. These include the cases of Zhu Shengwu in Shandong, Wu Youshui in Zhejiang, and Cheng Hai in Beijing. Some of the investigations were launched due to complaints or the so-called “judicial opinions” by police, prosecutors, or the courts, such as the case of Li Jinxing in Shandong or Wen Donghai and Yang Jinzhu in Hunan. Some were about settling old scores, such as the cases of Wang Liqian and Wang Longde in Yunnan, or Sui Muqing in Guangdong.
Secondly, public security bureaus, procuratorates, courts, and judicial bureaus have acted in a highly coordinated manner to suppress and degrade rights lawyers. Many lawyers, prior to cases being filed against them, were secretly investigated for a long period. But as soon as the investigation was officially registered, they were required to answer questions in a formal hearing. Particularly preposterous was the fact that in many cases, the authorities simply ignored all reasonable and lawful explanations by lawyers or their representatives, issuing punishments merely a few days after the hearings. In some cases the penalty notice had been prepared for the very next day. For instance, after Yu Wensheng was disbarred by the Beijing judicial bureau, he made a recommendation for an amendment to the constitution, for which he was promptly taken into custody by Beijing police and charged with a fictitious crime. Beijing lawyer Li Yuhan was similarly taken into custody because she took on a 709 case and had been in an old dispute with Shenyang police. Some law firms, under immense pressure from local judicial bureaus, forced lawyers to transfer to other firms — and while this was in progress, the judicial bureaus then sought out the new firms and stopped them from taking them on. If a lawyer can’t find a place of work for six months, his license is cancelled. This is what happened in lawyer Yu Wensheng, among others.
Thirdly, the signs that these punishments were retaliatory in nature is everywhere in evidence. Lawyers conducting their profession according to the law should be accorded legal protection, but in the punishments and investigations currently known of, a number of rights lawyers were representing relatively “sensitive” cases and had aroused the ire of the public security organs. The reason they’re being punished is often because, in their earnest pursuit of the law, they’ve violated some of the internal “hidden rules” of the public security authorities. The manner in which they’re punished is also extremely crude and brutish, and is often paired with slanderous propaganda widely disseminated in state media. The same lawyers are then denied legal or administrative relief. Some of the lawyers decided to lodge legal complaints against the judicial organs themselves. In such cases the court either refuses to receive their materials, or after receiving them quickly rules against accepting the case.
This was exemplified after Wen Donghai sued the Yunnan Lawyers Association for defamation. The trial date had already been set, but one day before trial the court informed Wen that the “superiors” have given an order that the case must not proceed to trial, and so they simply ruled that they would not accept his complaint. When lawyer Wen later sued for defamation the judge Bai Weiliang of Yunnan’s Eshan Yizu autonomous county court, the court first received the materials, and then sent them back. To this day Wen has yet to receive any kind of formal response. Recently, after Zhu Shengwu was disbarred by the Shandong judicial bureau, he lodged a suit with the court but the court refused to accept his filing.
The Difference Between Campaign-style Crackdowns and Normal Regulation
- Campaign-style suppression involves opening investigations and handing down administrative punishments against a large number of lawyers within a short period of time. According to preliminary statistics from the Ministry of Justice, in the latter half of 2017, over 40 lawyers were penalized under all manner of pretexts. Putting aside the question of whether there was substantive basis for the punishments — given that so many lawyers were penalized in such a short piece of time, in the vast majority of cases related to things that had happened long ago — what was the Ministry of Justice doing before? Did they deliberately indulge in the rule violations previously? And if so should they not be held responsible for dereliction of duty?
- The reasons provided for investigating some of the lawyers are simply baseless, and would count for nothing if not for this anti-lawyer campaign. Because of the illegitimacy of the reasons for the penalties, they wouldn’t be able to stand the test of time or due process, and if the penalties were not levied in rapid succession, their shock and intimidation value would be lost. Indeed, in that case the illegitimacy of the claims would be continually laid bare. That’s why the campaign-style suppression must be executed within a short period: the disbarments and firm closures in the cases of Zhu Shengwu, Wu Youshui, Wang Liqian, Wang Longde and Sui Muqing exemplify this. Moreover, the authorities were sure to mix together these political punishments with a number of penalties against lawyers who indeed should have been penalized, a deliberate attempt to conceal the fact that this was a targeted political action against a specific group.
- Police and judicial organs have worked fist-in-glove with neighborhood committees to effect 360° control over human rights lawyers. Their close cooperation is shown by:
Firstly, the concentration of complaints against lawyers by public security bureaus, procuratorates, and courts;
Secondly, their close cooperation in secret investigations, where in some cases they even fabricate or exaggerate facts, and refuse at any point to provide the lawyers so targeted with the evidence being levied against them;
Thirdly, the manner in which they have severed the targeted lawyers’ access to legal support. This is particularly harmful given that as lawyers, the only thing they have to rely on is the law. But in this campaign-style attack, legal relief has been denied. In most cases this takes the form of rejecting lawyers’ appeals for reconsideration (复议) within a fixed period of time, regardless of the strength of the argument. In some particularly egregious cases the court refuses to even receive the appeal documents, denying lawyers he opportunity to present their views, and granting them no trial;
Fourthly, the fact that a number of the law firms that have employed human rights lawyers have been forced to participate in the rectification campaign against them. Most commonly this takes the form of threatening to sack the lawyers, or actually sacking them, and then ensuring that they cannot find new work. Also, neighborhood committees and police stations, among other work units, closely surveil every step a lawyer takes, ensuring that everything they do is within the control of the authorities.
An example of how these policies play out can be found in the case of Shi Ping, a trainee lawyer who was on an internship in Guangzhou. During that period, simply because he had been placed under criminal detention (and later released) — despite there being no grounds for the detention — both the Henan and Guangdong provincial ministries of justice refused to process his internship paperwork. To this day he has not been able to secure work. According to the judicial interpretation of the Law of the People’s Republic of China on State Compensation, Shi Ping bears no criminal responsibility — yet the Guangzhou Lawyers Association still uses the pretext that he was once under investigation to indefinitely hold his legal credentials in a state of “postponed registration.”
The most important element of modernity is the rule of law. Putting the rule of law into practice requires, firstly, ending the use of political campaigns as a tool and instead integrating social management into everyday legal procedures. Regulating lawyers’ practice is legitimate and necessary, but it must proceed on the basis of the law itself. If political movement-style methods are used instead, the rule of law will be undermined and Chinese society will be dragged into chaos.
Perhaps you, Minister Zhang, believe that high-handed tactics against lawyers will enable overall social control. This may be how you dress it up when reporting to officials up the chain of command. The claim may fool people for a while, but it will be impossible to fool thinking people over the long term. It is obvious that, as a wielder of power, you can force lawyers to shut up, but you can’t force everyone in China to shut up and stop thinking. Citizens, ordinary or otherwise, can indeed be deprived of lawyers — but how will their rights be upheld when repressed? Absent the guidance of modern rule of law, the law of the jungle will take over. How many more cases of extreme travesty of justice do you think will occur, in that case?
The fact is that it’s precisely those responsible, law-abiding rights lawyers who have become your target of suppression and elimination. You don a mask and claim to the world that you’re about justice, while you quietly take up the butcher’s knife and slash at the sacred scales of the law — a repeat of your performance in Chongqing years ago.
If lawyers can bring anything to China’s modernization program, it’s their rational and pragmatic spirit, and their respect for the norms of modern civilization. Without the determined and widespread engagement of lawyers, everyone will face uncertainty, without exception. With the scales of law destroyed, all of us — including you, Minister — will lose control of our fates.
Perhaps the suppression of lawyers brings momentary satisfaction to your ego, Minister, and helps pave the path for your promotion through the Communist Party ranks. We’re merely the child who dares to point out that the emperor has no clothes. Even though we’ve already been disbarred or had our law licenses cancelled by the judicial bureaus you control, it’s us who are the real lawyers of China, because we act with the courage of conviction that being a lawyer demands.
We hereby cry out in earnest: The political campaign against lawyers in China must stop!
This is an important test as to whether our nation can conform to the norms of modern civilization, and it is the most important criterion for whether our country can truly establish freedom, democracy, the rule of law, equality, and other core values. Please think twice about your choices.
Shi Ping (施平)
Wang Liqian (王理乾)
Peng Yonghe (彭永和)
Chen Jiahong (陈家鸿)
Zhu Shengwu (祝圣武)