Xie Yanyi | China Change
This article was first published on China Change website on May 21, 2018
Xie Yanyi, who turned 43 this year, is a lawyer in Beijing who has taken on numerous human rights cases over his career. In April 2015 Xie led a small group of rights lawyers seeking restitution after the police shooting of passenger Xu Chunhe at the Qing’an railway station in Heilongjiang, and later published a legal investigation of the incident. This case is believed to be one of the fuses leading to the 709 (July 9, 2015) mass arrest of lawyers, and Xie Yanyi was one of the scores of lawyers arrested during that crackdown. He was accused of inciting subversion of state power and detained for 553 days, until being released on probationary bail. Last year Xie published ‘A Record of 709 and 100 Questions About Peaceful Democracy’ , in which he described the torture he suffered while in custody. Since his release, he has continued his involvement in human rights cases, representing among other clients the Canadian citizen of Chinese origin and Falun Gong practitioner Sun Qian.
The Chinese authorities view rights lawyers as a threat, and following the “709” crackdown, they have been targeting lawyers by canceling their law licenses, prevented them from finding employment, and using a variety of other illegal and extralegal tactics in an attempt to destroy the rights defense community. Xie Yanyi has again become a target. The following is Xie’s account of the Beijing Lawyers’ Association’s hearing on May 16 about his alleged ‘violations,’ a step toward disbarring him. It has been edited for length and clarity with the author’s permission. — The Editors
How It All Began
In late January 2018, my law firm received a ‘Notice of Case Filing’ from the Beijing Lawyers’ Association (BLA). It said that the Beijing Municipal Justice Bureau had recently received a complaint from the Yinchuan Municipal Intermediate Court and Municipal Procuratorate in Ningxia, accusing me of violating regulations while handling a case in the city. The notice announced that the BLA had begun an investigation.
On July 27, 2017, I was the defense counsel in the hearing of second instance in the prosecution of Falun Gong practitioner Xie Yiqiang at the Yinchuan Intermediate People’s Court. At the hearing, I demanded that the court, per the law, produce the audiovisual evidence that formed the basis of the charges, and that I be able to cross-examine the defendant. These protestations were met with crude interruptions by the judge, He Wenbo. The judge refused to play the audiovisual evidence. His refusal was a violation of China’s Criminal Procedure Law, and in the end, I was forcibly removed from the courtroom, thus depriving me of my right to defend my client.
After being ejected from the court, I submitted a formal request — again, according to both China’s Criminal Procedure Law and relevant provisions of the Supreme People’s Court — that the court provides me with the recording of the hearing. I also repeatedly engaged in the disciplinary inspection commission and other departments of the court, submitted a complaint, and tried to make an appointment to meet with the court’s leadership. All of them appeared to know that they were in the wrong and refused to meet me, proffering all manner of excuses. During one phone conversation He Wenbo, the presiding judge on the case, demanded to speak with me, which I refused. Afterward, I lodged complaints with the Yinchuan court’s disciplinary commission against the public security bureau, procuratorate, and judicial officials responsible in the first instance for the wrongful imprisonment of Xie Yiqiang.
After I learned of the alleged ‘violations’ being investigated by the BLA, on February 13 I requested a hearing on the investigation and demanded of both the BLA and the Beijing Bureau of Justice that they provide the evidence on which the complaint against me was based. This request was ignored. On May 4 the BLA informed me that the hearing was set for May 16. In an attempt to establish my defense, I again demanded they provide the recording from the Yinchuan courtroom and any other related evidence — and again, this was refused (illegally). At this point, I submitted Freedom of Information (FOI) requests as well as an administrative complaint with the Beijing Bureau of Justice as well as the Beijing No. 2 Intermediate People’s Court. Both accepted my requests and were in the process of filing them. I, therefore, submitted a request with the BLA that the hearing should be postponed until all relevant administrative and judicial proceedings were completed. Yet the BLA ignored my request and continued with the May 16 hearing.
Before the Hearing: Police Barricades, Journalist Beaten, and My Arrest
In the early morning of May 16, myself and my attorneys Song Yusheng and Wen Donghai arrived at the BLA building in the Dongcheng District of Beijing. Police vehicles and numerous unidentified people — presumably undercover officers — had been deployed, with guards at the door preventing journalists, lawyers, and regular citizens from entering and observing the proceedings. Even my relatives were denied admittance. As I stood on the sidewalk getting ready to speak with journalists, including from Hong Kong’s Now TV and Japan’s NHK, a group of men calling themselves police rushed over and began separating us. They used the excuse of ‘verifying IDs’ and ‘maintaining order’ to clear everyone out. I demanded that they show their IDs and explain which laws they were supposedly acting under. I said that police power is bounded, that they can’t abuse it, and that they need to respect freedom of the press and the Beijing Lawyer’s Association itself. They ignored all this and confiscated the ID card of Now TV’s video journalist Chui Chun-ming. The journalist was extremely anxious to get it back, so I tried to help. But as soon as he had his ID in hand, a group of unidentified men rushed over, surrounded him, and snatched it away as they punched and stomped him. I tried to step in and stop them but was myself attacked, grappled around the neck and arms, and my clothes ripped. They shoved me into a car and rammed me down between the front and back seats. I started yelling at them: “Everyone here is a slave — it’s just that you’re slaves in charge of other slaves, and you don’t need to do this!”
When the car got out onto the road, one of the police officials in the front got a phone call; he turned around and asked me: “Do you want to be locked up, or go back to your hearing?” I said that I couldn’t care less, and if the hearing didn’t go ahead that’d be even better. In the end, they drove around the block and dropped me off at the back of the BLA building. They, along with the BLA officials (secretary-general Xiao Lizhu and disciplinary committee member Mr. Chen) then told me to go directly to the hearing room. I told them I needed to see my wife and two-year-old daughter, who had been crying out ‘dad’ behind me as the policeman hauled me away. A group of the officers had me hemmed in and prevented me from going outside to see my child. I said to them that even if you had no regard for the law, you should at least act humanely. I forced my way to the exit, saw my wife and daughter, and greeted the many strangers and friends who had turned out in support. And I once again tried to negotiate with the officials, to allow people to enter and observe the hearing.
They ignored me and didn’t let me linger at the entrance, instead forcibly escorting me back into the building and the hearing room.
The Hearing Itself
At the beginning of the hearing, I stated that because my rights to review evidence had been denied, procedures violated, observers banned, and everything was being controlled by domestic security police, the hearing had no independence or legitimacy, was neither fair nor impartial, and that BLA was willingly being used as a tool for the persecution of lawyers. I said that my primary reason for attending the hearing was to witness with everyone present the violations of the law taking place, and to make an account for history.
After that, the moderator of the hearing introduced to us the members of the hearing panel: Wen Jin, Sun Hongyan, Hu Shuichun, and investigator Lu Li (they were members of the BLA’s ‘professional disciplinary and meditation committee’, on which Wen Jin and Hu Shuichun served as vice-directors). I and my two counsel asked the members of the panel in turn whether they were aware that I had submitted an FOI request and had begun legal proceedings. We also raised the fact that I had been denied my right to review evidence. Finally, we pointed out that the hearing’s procedures did not conform to Article 58 of the All China Lawyers’ Association’s ‘Rules of Discipline for Lawyer Association Members’ Violation of Regulations’, which stipulates that “if facts or matters of dispute directly related to the case are brought into a lawsuit, arbitration proceedings, or there are circumstances that prevent the investigation from proceeding, then with the approval of the head of the disciplinary committee and president of the board of directors, the investigation may be suspended. When the relevant procedures have completed or relevant circumstances no longer present, a decision can be made as to whether or not to resume the investigation. The period of suspension is not counted toward the time limit of the investigation.”
Given their professional ability and questions about potential conflict of interests, we requested that all of the panel members recuse themselves.
There was a ten-minute adjournment. When the hearing resumed, our request for the panel’s recusal was rejected, and the hearing proceeded to hear the evidence that prompted the investigation. The investigators had almost no such evidence — they had neither the recording from the Yinchuan courtroom, and nor had they shown any judicial opinions or explanations. They merely showed us a blurry, two-page facsimile of the supposed court transcript that wasn’t even stamped with an official chop. I know why this was the case — everyone involved in the case knows perfectly well that Falun Gong cases are false and unjust prosecutions in the first place, and no one wants to publicly endorse this willful miscarriage of the law.
Despite repeated interruptions, I finished reading through my 5,000-6,000 word ‘Defense and Rebuttal’, and my two counsel then stated their own legal opinions in my defense.
I asked the panel: Had the Beijing Bureau of Justice and the BLA seen the full (i.e., unedited) recording of the hearing in the Xie Yiqiang case, and had they seen the case files and materials? I asked their thoughts or reflections regarding this abuse of power involving a judgment that circumvented the law, trampled on the Criminal Procedure Law, and flagrantly deprived a lawyer of his right to defend his client. I asked: Have the Beijing Bureau of Justice and the BLA got a few words to say about a lawyer’s rights to practice, and the dignity of the law, given that these are the organizations’ statutory duties? I added: The opposite appears to be the case, with you here illegally stripping a lawyer of his professional rights.
In conclusion, I said: “If myself, Wang Quanzhang , Yu Wensheng and other 709 lawyers were really guilty of any crime, it would be ‘the crime of taking the law seriously,’ ‘the crime of speaking the truth,’ and ‘the crime of diligently defending the client.’ Today, whether I’m outside fighting for the rights of journalists, the rights of observers, or everything I’ve said and done in this hearing room, all of it is to fight for the rights and dignity of every individual, and for the welfare of our future generations, including the future generations of those in power right now. Only if we respect the rule of law will this society escape chaos and turmoil. I believe that the vast majority of Chinese people, whether in or outside the official system, want the best for this society, and hope that it will progress toward human rights, peaceful democracy, and the rule of law. Every one of us has a responsibility. As long as all of us is willing to lean just a little bit in this direction, we’ll be able to see it realized. Of this I am confident!”
After the Hearing
As soon as the hearing finished, secretary-general Xiao Lizhu took me aside into a large conference room. Inside was my elder brother Xie Wei, a friend from our hometown, and a domestic security agent identified as Sun Di. It seemed they had already talked matters over. Sun said that my brother would accompany me as they took down some simple notes. Then, four or five uniformed police officers came in with official recording equipment. The first came in and, in a show of following the rules, presented his police identification badge, identified himself as Wang Lei (the one who questioned me later was officer Wang Xin, and handed me a notice of summons which said that I was suspected of obstructing the work of official organs in the lawful exercise of their duties. Given that they were now playing by procedure, I signed it and went along with them to the Hepingli police station and sat down in the third-floor interrogation room. They didn’t forget to ask whether I was hungry or thirsty; I said I wasn’t for the time being.
Then, several batches of people came to talk with me. I told them that I’m happy to chat with them, but that if it’s an interrogation, I refuse to answer all questions in protest of the illegal summons. So, I spoke with each of them in turn, with discussions often turning into debates. Without exception they insisted that their right to enforce the law must not be violated; I, in turn, emphasized that law enforcers cannot themselves violate and abuse their power, nor enforce the law with malice aforethought.
After going at it like this back and forth for five or six hours, I found that the young policeman who’d been violent earlier on was now much less irascible. He was now avoiding eye contact, as though he was worried I’d hold him accountable later on. I told his bosses and colleagues that he’s still a young fellow, and I’m not going to go after him or any individual.
At around 6:00 p.m. one of the domestic security agents told me I could leave, and asked me to talk to my wife. After my wife Yuan Shanshan heard that I had been taken away, she went to the Hepingli police station and demanded all the paperwork about my case. In the course of this, she got into an argument with one of the police officers, and in the end was herself apprehended, handcuffed, and detained. Thus, within one day my daughter had witnessed her father be violently dragged away by police, then seen her mother also taken away, on both occasions crying out for her mom and dad.
In the days leading up to the hearing, my wife had taken my daughter to the BLA to get a copy of the evidence, keeping vigil there for over 30 hours. I tried to convince her not to do that, but she wouldn’t listen and said it wasn’t for me alone, but for the rights of all families. Indeed, when the Hong Kong journalist was arrested and beaten, she dropped everything and tried to help him and cursed out the police. Most of the videos of the scene were shot by her. My wife hasn’t stopped fighting back!
The actions of Dongcheng police outside the BLA building were all for the illegal purpose of preventing me from speaking with the press. Similarly, forcing the journalist to write a ‘repentance statement’ and serving me an illegal summons after the hearing, was also intended to stop me from talking to the press, or exposing their illegal conduct.
In a normal society, the duty of police officers is to protect the rights and dignity of citizens, and to put a stop to illegal conduct and orders, no matter their pretext. Safeguarding some imagined notions of ‘state security’ and ‘social stability’ is not the legal duty of the police.
I hereby thank all friends who attended the hearing and traveled to the police station to express support, including (among many others): Liu Juefan, Zhang Baocheng, lawyer Bao Longjun, lawyer Lu Tingge, lawyer Ma Wei, lawyer Sui Muqing, Li Yanjun, Sun Dongsheng, Wei Huasong, Li Yue, Li Wei, and lawyer Tang Jitian.
May 19, 2018