Posts tagged: weiquan lawyers

Codifying Illegality? The Case of Jiang Tianyong

By , January 20, 2017

Jiang Tianyong

For the Chinese state, human rights lawyer Jiang Tianyong (pronounced Gee-ang Tee-an Young) never seems to learn his lesson.  In 2009, after taking on a slew of politically sensitive cases such as representing Falun Gong practitioners and ethnic Tibetans prosecuted following the 2008 Tibet riots, the Beijing Bureau of Justice declined to renew Jiang’s lawyers license.

But lack of a law license did not stop Jiang from continuing to advocate for some of China’s most vulnerable. Instead, Jiang played an active role in ensuring that blind activist Chen Guangcheng‘s cruel house arrest remained in the public eye. Again the Chinese state came for Jiang.  In February 2011, after meeting with fellow advocates to discuss Chen Guangcheng’s case, Jiang was abducted by local police, beaten, psychologically tortured and held incommunicado for two months.  (For Jiang’s own description of his two month ordeal, click here). Jiang was released, but only after he promised to give up his advocacy work, stop associating with his current friends, cut off ties with foreigners and refrain from making comments on social media disparaging the Chinese Communist Party (CCP).

Jiang, on the left, with other human rights attorneys and advocates, protesting in Heilongjiang

But even in light of these guarantees, Jiang’s advocacy did not cease. Nor did the Chinese state’s reprisals, which became increasingly violent. In May 2012, Jiang attempted to visit Chen Guangcheng in a Beijing hospital.  After Jiang was denied entry, state security officers took him away, beat him and then placed him under surveillance. In 2013, when Jiang exposed Sichuan province’s largest “black jail,” a secret and unlawful detention center, he was again beaten by local police.  When, in 2014, Jiang went to Heilongjiang province to protest the detention of Falun Gong practitioners in a “legal education base,” Jiang was administratively detained for 15 days and subject to various beatings while in police custody.

Not surprisingly, Jiang, who has yet to give up his advocacy, is back on the Chinese government’s radar, this time with much more serious charges that could land this civil rights attorney in prison for life.  But there is one thing that should make this time different from Jiang’s prior detentions: the implementation of China’s new Criminal Procedure Law (“CPL”), amended in 2012.  When these amendments passed, they were herald as more protective of criminal suspects’ rights, much needed in a system with a 99.9% conviction rate. In October 2016, the Supreme People’s Court (“SPC”), Supreme People’s Procuratorate (“SPP”), and the Ministry of Public Security (“MPS”) doubled down on the 2012 amendments, issuing a joint opinion, reaffirming each agency’s commitment to a more fair criminal justice system.

But as Jiang’s case highlights, these are just  paper promises.  For Jiang, some of the provisions of the CPL are outright ignored.  But more dangerously, the Chinese police have placed Jiang under “residential surveillance at a designated location,” a form of detention that was added to the CPL with the 2012 amendment.  In the case of Jiang, this amendment is being used to keep him away from his lawyers and, with his precise whereabouts unknown to the outside world, in a situation where torture while in custody is highly likely.  So much for better protecting criminal suspects’ rights.

Why Is Jiang Under Residential Surveillance at a Designated Place?

On November 21, 2016, Jiang went missing.  According to the Legal Daily, Jiang was picked up by the Changsha police after using someone else’s identity card to purchase a train ticket home to Beijing. After being taken into custody, Jiang is now suspected of harboring state secrets, a crime that carries a three to seven year prison sentence depending how serious (Crim. Law Art. 282) and of providing those state secrets abroad, a crime that results in a sentence anywhere between five years to life depending on the severity (Crim. Law Art. 111).

However, according to an advocate close to the investigation, the police notice eventually issued to Jiang’s family also lists suspicion of inciting subversion of state power, a national security crime that the Chinese government has increasingly used to silence its civil rights lawyers.  That charge can carry a sentence of anywhere between three years to life (Crim. Law Art. 105), and where inciting subversion involves foreign entities, the punishment shall be heavier (Crim. Law Art. 106).

Jiang Tianyong’s wife, Jin Bianling, calling on the Chinese government to inform her of her husband’s whereabouts. Photo courtesy of Hong Kong Free Press

For close to a month, Jiang’s whereabouts were unknown; unknown to his lawyers and to his family.  And while this might seem illegal, China’s amended Criminal Procedure Law (“CPL”) forgoes many of the protections intended to make the system more fair when the crime of endangering national security is potentially involved. When a suspect is taken into custody, Article 83 of the CPL requires that the police inform the suspect’s family within 24 hours except for those crimes that endanger national security or involve terrorism.  Here, Jiang is suspected of subverting state power and passing state secrets abroad, two crimes that certainly endanger national security.  And as a result, the police did not inform Jiang’s family that he had been taken into custody.

In what is increasingly necessary when a civil rights lawyer lands in the exclusive control of the police and his whereabouts are unknown, Jiang’s family and friends resorted to the one tool they had left: pressuring the foreign press to repot that Jiang had gone missing.  With the story of Jiang’s abduction splashed across the international press, on December 16, 2016, the Chinese government, through the government-controlled Legal Daily newspaper informed the world that Jiang not only had been taken into custody but that he was placed in “residential surveillance in a designated place.”

Residential Surveillance in a Designated Place – likely not here.

One of the major amendments to the CPL included what China terms  a “compulsory measure” but in reality is a new form of detention: “residential surveillance” (Articles 72 through 77 of the amended CPL).  Residential surveillance might sound like a more mellow form of detention but when applied, it provides carte blanche for police to interrogate – and usually torture – a suspect without any interference from the outside world.

For any residential surveillance that occurs outside of the suspect’s hometown, or if the suspect is being investigated for crimes of “endangering state security,” “terrorism” or “serious crimes of bribery,” residential surveillance does not occur at one’s home. (CPL, Art. 73) Instead, it occurs at an undisclosed location and while the family is required to be informed that their relative is under residential surveillance at a designated place (CPL, Art. 73), the family is not necessarily informed as to the precise location of the place.

And this is why Jiang shouldn’t be expecting any care packages in the near future from his family; they have no idea where he is.  In fact, according to a source close to the investigation, Jiang’s family first learned about his residential surveillance through the Legal Daily article on December 16, 15 days after he was placed in that form of detention.  True that the amended CPL  does a great job at severely circumscribing suspects rights once they are under residential surveillance, but the one thing that the Chinese government still gives these suspects is reuiring the  police to provide a written notice to the suspect’s family within 24 hours of placing the suspect under residential surveillance, regardless of the type of crime involved, national security or not. (CPL, Art. 73; see also Ministry of Public Security Implementing Regulations of the CPL Art. 109)  But here, according to an advocate close to Jiang’s case, Jiang’s family was not provided official notification until December 23, 2016, 22 days later.

Under the residential surveillance provisions of the amended CPL, the police are given so much power over the suspect, power that is largely illegal in other forms of detention and for other crimes. But even with this power, the police still feel the need to violate the clear language of CPL Article 73 and withhold notice to Jiang’s family.

Jiang Can Be Held for Up To Six Months and Without Access to a Lawyer

Empty chairs at empty tables – No lawyer for Jiang anytime soon

Jiang should also not be expecting any visits from a lawyer for the six months that residential surveillance at a designated place is permitted. (CPL, Art. 77)  And that’s another way that, by slapping a national security charge on a suspect, the Chinese government is able to circumscribe rights otherwise enshrined in the amended Criminal Procedure Law.

Because “residential surveillance in a designated place” usually presupposes a possible state security, terrorist, or serious bribery charge, the requirement that a meeting with the lawyer take place within 48 hours (CPL, Art. 37) is suspended for those possible charges.  (CPL, Art. 37).  Instead, any meeting must be approved by the police. (CPL, Art. 37).   Which fits with the rules that the suspect must follow when in residential surveillance: only with permission of the public security agency can the suspect meet or correspond with someone else. (CPL, Art.75(2)).  That permission must be granted unless the investigation would be obstructed or national secrets may be leaked (Ministry of Public Security Implementing Regulations of the CPL Art. 49)

Changsha police notice informing Jiang Tianyong’s lawyer that he cannot meet with Jiang due to crimes endangering national security (click for bigger image)

Although the regulations strongly favor meeting with a lawyer, in practice, civil rights attorneys held on charges that involve endangering national security are rarely given approval to meet their attorney.  Jiang is no exception.  According to an advocate with close ties to Jiang’s case, on December 27, 2016, Jiang’s lawyer requested permission to meet with his client.  On December 29, 2016, Changsha police denied this request, stating  that  “Jiang Tianyong was accused of crimes of endangering state security, and a meeting with lawyers would obstruct the investigation or possibly divulge state secrets.”

Codifying Illegality?

Jiang’s case makes clear that the 2012 CPL amendments have done little to curb the power of the police and that the Chinese government’s recent pronouncements that it needs to do better to protect suspects’ rights, is nothing more than window dressing. As long as the police unilaterally, and without due process, decide to investigate the suspect for crimes involving national security, all rights are essentially lost: the suspect can be held incommunicado for up to six months without access to a lawyer.  That kind of situation – with no one watching – all but guarantees torture and abuse.  Ironically, it is potential charges of endangering national security where these protections are needed most.

But, starting with the 2015 crackdown on lawyers and now continuing with Jiang Tianyong, the Chinese government has demonstrated that it will use the label of “endangering national security” to forgo the rights that it says it is committed to providing criminal suspects.  In late 2015 and early 2016, the Supreme People’s Procuratorate issued two sets of rules ostensibly to curb the police’s abuse of residential surveillance in a designated location.  But, as others have noted, the new rules seem to be designed more to ensure that everything looks good on paper than to guarantee criminal suspect’s rights and access to due process.  The case of Jiang Tianyong appears to prove that even those new regulations have had no effect.

As the rest of the world marks the seventh annual Day of the Endangered Lawyer next Tuesday, Jiang Tianyong, one of China’s great civil rights attorneys, languishes in an unknown place, likely subject to constant interrogation and torture, and without any access to a lawyer.  His rights deprived all because the Chinese police are able to claim that it is investigating him for endangering national security.  But the only thing that is being endangered by making a mockery of the protections of the amended Criminal Procedure Law is the actual rule of law.

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Thank you to China Law Translate for providing free of charge most of the translations of China’s laws used in this article. 

I Pledge Allegiance to the CCP….Chinese Lawyers’ New Oath Requirements

By , March 22, 2012

I Pledge Allegiance....

In its ongoing efforts to tie the Chinese legal profession as tight as possible to the Chinese Communist Party (CCP), China’s Ministry of Justice (MOJ), the government agency that oversees the legal profession, announced its new initiative on Wednesday: every new lawyer in China must pledge allegiance to the CCP.

Lawyers’ oaths are not unique to China: almost every state in the United States requires newly-admitted attorneys to recite an oath to uphold the Constitution and the laws of the state.  And this is not the first time that a lawyers’ oath has been required in China.  In 2000, the All China Lawyer’s Association (ACLA), the national bar association that all lawyers must be members of, first instituted an oath of office for all lawyers.  But in a Wednesday Legal Daily interview with an unnamed MOJ official, the MOJ determined that the ACLA oath was too general and ineffective.  As a result, the MOJ issued a new oath that must be sworn to in a formal ceremony (translation courtesy of Siweiluozi Blog):

I volunteer to become a practicing lawyer of the People’s Republic of China and promise to faithfully perform the sacred duties of a socialist-with-Chinese-characteristics legal worker (中国特色社会主义法律工作者); to be faithful to the motherland and the people; to uphold the leadership of the Chinese Communist Party and the socialist system; to safeguard the dignity of the constitution and the law; to practice on behalf of the people; to be diligent, professional honest, and corruption-free; to protect the legitimate rights and interests of clients, the correct implementation of the law, and social fairness and justice; and diligently strive for the cause of socialism with Chinese characteristics!

Compare this with the New York State oath taken by newly-admitted lawyers:

I do solemnly swear that I will support the Constitution of the United States, and the New York Constitution, and that I will faithfully discharge the duties of the office of attorney and counselor at law of the Supreme Court of the state of New York according to the best of my ability.”

There are aspects of the Chinese oath that are laudable: to be professionally honest, to be corruption-free, to serve the people, and to properly implement the law.  All of these requirements are ostensibly value-neutral and are good for the profession.  But what is decidedly different between the New York oath and the China one is that allegiance to the CCP is required.  According to the MOJ official, this was intentional.  One of the major reasons that the MOJ issued the new oath was to increase the quality of lawyers’ political thought as well as their professionalism.

That alone would not necessarily be problematic in a country where the Party is the State and let’s face it, people take oaths all the time and rarely listen to or abide by their words.  But this new oath comes in the midst of a major crackdown on China’s public interest lawyers and presumably will be used as a warning signal to this portion of the profession.

The CCP’s Increased Use of Socialist Rhetoric to Police Lawyers

Last fall, I published a law review article discussing the use of increased socialist rhetoric to step up the CCP’s control of China’s growing public

The Three Supremes

interest lawyers (China’s Rule of Law Mirage: The Regression of the Legal Profession Since the Adoption of the 2007 Lawyers Law).  The beefed-up socialist rhetoric began quietly with a speech given by President Hu Jintao at a Chinese Communist Party conference in December 2007.  In his speech, Hu announced the doctrine of “the Three Supremes:” “always regard as supreme the Party’s cause, the people’s interest, and the Constitution and laws.”

Although initially unclear if the Three Supremes were listed in hierarchical order and if the doctrine was even applicable to lawyers, Justice Minister Wu Aiying addressed the issue in August 2009.  Calling upon lawyers to “above all obey the Communist Party and help foster a harmonious society”(emphasis added),Wu stressed the need for lawyers to “pay attention to politics, take into consideration the big picture, and observe proper discipline.” Absent is any mention of “law” or the need to develop the institutions—such as an independent judiciary or a competent legal profession—integral to a rule of law society.

Further confirmation of this shift in rhetoric is found in the October 2008 MOJ pronouncement opening the new government-sponsored campaign of lawyers as “Chinese-style socialist legal professionals.”  In 2010, the MOJ went further with its rhetoric by directly stating the need for greater Party leadership of the legal profession.  In an interview with an unnamed MOJ official, the Legal Daily reported the forthcoming pronouncement of MOJ “Opinion Regarding the Further Strengthening and Improvement of Lawyers’ Work.” Like prior pronouncements, the 2010 MOJ Opinion contains flowery language detailing the need for lawyers to “always hold high the banner of socialism” and to “strengthen [their] political thought.”  But unlike previous statements, the 2010 MOJ Opinion candidly states the role that the Party will play in leading the legal profession.

Through the Party and the MOJ, the 2010 MOJ Opinion states the need for daily supervision and management of the profession, the need for standardization in how cases are handled, and the need to consider “political quality,” “professional quality,” and “ethical quality” in the yearly license renewal procedures

The CCP Re-institutes Party Cells

Party Cells in Law Firms....How Retro!

Finally, the CCP – as reported in a Legal Daily article – has successfully infiltrated most law firms, instituting Party cells in a throwback to the Cultural Revolution days when loyal party members set up “cells” within each work unit to guarantee the proper political ideology of the workers and to report any infractions in thought to the local Party.  While the 1980s saw a decline in Party cells, a 1995 Party Opinion called for the creation of more Party organizations within law firms.   In 2002, President Hu Jintao stressed that the legal profession could only become strong through Party leadership.  But in general, such efforts were met with strong resistance from the profession and law firms largely ignored the directives. However, all of that changed in 2008.

In March 2008, the CCP’s Organization Department and the MOJ’s corresponding Party organization issued a joint opinion announcing the need to improve and strengthen the Party apparatus in the legal profession. As if to indicate to the legal profession that this time the Party was serious about a greater Party presence in law firm life, Justice Minister Wu Aiying declared in July 2008 that more Party cells needed to be created within law firms as a way to better indoctrinate the profession.  This effort has largely succeeded.  Between April 2008 and April 2009, the number of Party cells found in law firms more than doubled.  Today, over 90 percent of all law firms in China maintain a Party cell.(all information can be found in the Legal Daily article).

The Oath Fits the Pattern of Greater CCP Control Over the Legal Profession

In 2007, China amended its Law on Lawyers, ostensibly to give greater independence to the profession.  As my article China’s Rule of Law Mirage points out, on paper, the amendments did in fact give the profession greater control and reduced the supervision of the MOJ.  However, as the article goes on to demonstrate, as public interest lawyers have had more success in their cases, the CCP has exerted greater control of the profession, undermining whatever promises of greater professional independence that is found in the 2007 Law on Lawyers.

Ironically, and as if to give the new oath requirement some sort of semblance of legality, the unnamed MOJ official in Wednesday’s Legal Daily interview attempts to argue that the new oath requirement is in-line with the edicts of the 2007’s amended Law on Lawyers.

Nothing could be further from the truth.  Compared to recent CCP pronouncements, the 2007 Law on Layers is largely devoid of Party allegiance.  Article 1 does require a commitment to a “building of a socialist legal system” but that is sort of like requiring U.S. lawyers to assist in building a democratic legal system.  Additionally, the new structure of law firms and the establishment of solo practitioners were both perceived as an effort of MOJ to relinquish some of its supervisory role in exchange for greater supervision by the bar associations (see China’s Rule of Law Mirage for a more detailed explanation of these provisions).

But MOJ’s new oath, which overrides ACLA’s oath, reflects its effort to maintain control of the profession.  And its requirement that lawyers pledge allegiance to the CCP is eerily reminiscent of Nazi Germany where lawyers took a similar Party allegiance oath: “I swear to remain loyal to the Fuehrer of the German Reich and people, Adolf Hitler, and to fulfill conscientiously the duties of a German attorney, so help me God” (See Matthew Lippman, Law, Lawyers, and Legality in the Third Reich: The Perversion of Principle and Professionalism, 11 Temp. Int’l & Comp. L.J. 199, 218 n. 185 (1997)).

Ultimately, the oath won’t impact the daily work of most of China’s lawyers.  In fact, it is only applicable to new lawyers or those who are re-applying for their licenses (首次取 得或者重新申请取得律师执业证书的人员); MOJ’s announcement makes no mention of its applicability to current lawyers at their yearly re-registration (年度注册); presumably current lawyers will not be subject to the oath.  But in a society where rhetoric has served as important signaling device as to what behavior is politically acceptable, the new oath could potentially have a chilling effect on current public interest lawyer’s work and could discourage new lawyers from representing individuals and issues that are perceived as politically dangerous.  It’s this chilling effect of the new oath that is the greatest threat to a rule of law in China.

Don Clarke & Li Tiantian: Two Takes on the Jasmine Revolution in China

China's Jasmine Revolution?

In February 2011, the Chinese government began a quick and widespread crackdown on Chinese rights-defending (“weiquan”) lawyers and activists, abducting many for days to months on end, some subject to torture while in government custody.  The general narrative that has emerged to explain this recent crackdown is the Chinese government’s fear that an Egypt-like democratic revolution could occur in China, overturning the Chinese Communist Party’s one-party rule.

Make no mistake these extrajudicial abductions are not permissible under Chinese criminal law and like other countries, there are laws in China that restrict the government.  Under Chinese Criminal Procedure Law (“CPL”), a detention warrant issued by a public security organ must be presented when an individual is taken into custody (CPL Art. 64); either the family members or the employer of the detained individual must be informed of the reasons for the detention within 24 hours (CPL Art. 64); the first interrogation of the detained person must be conducted within the first 24 hours (CPL Art. 65); after the first interrogation, the detained person has the right to retain a lawyer and the lawyer has a right to meet with his or her client (CPL Art. 96 – note that this provision makes it legal for the first interrogation to be conducted without a lawyer present); and after 37 days in custody, the detained individual must either be arrested or released (CPL Art. 69).  Additionally, Article 238 of the Chinese Criminal Law criminalizes any unlawful detention or deprivation of personal liberty, imposing a harsher criminal sanction on state functionaries.

So the question remains, if the Chinese government just flouts these laws, why does it bother?

Rule of Law in China?

And what does this say about its progression toward a rule of law, a progression the Chinese government maintains is its goal?

Prof. Donald Clarke of George Washington University Law School came out with a rather thought-provoking essay last Thursday, seeking to answer some of these questions, and put China’s ‘rule of law’ development in some sort of perspective.  In “China’s Jasmine Crackdown and the Legal System,” Prof. Clarke dispenses with the conventional idea that China was ever on the path toward a rule of law.  Defining a rule of law as a system “where there are meaningful restraints on the powers of government” and that “those in power cannot do simply as they please,” Prof. Clarke maintains that the Chinese government never had the intention to be held accountable; its quest toward a “rule of law” for the past 30-odd years has just been about creating government efficiencies.  In 1978, to become a successful market economy, the Chinese leadership had to create some legal system since Mao had all but dispensed with law by the end of the Cultural Revolution (1966-1976).  But while these developments in the economic-legal sphere might have the looks of a rule of law, scholars are wrong to think that it was ever the government’s intention to be held accountable under a true rule of law system.  Many of the Chinese government’s recent actions, including the crackdown on rights-defending lawyers, exemplify the leadership’s anti-commitment to a rule of law.

Rights-defending Lawyer Li Tiantian

There is something to be said for Prof. Clarke’s assessment and in many ways it is accurate: the leadership appears unwilling to allow anything it deems “political” to be handled by the legal system and this appears to explain its harsh assault the past few years on rights-defending lawyers.  It’s commitment to a “rule of law,” a commitment it repeatedly states in various US-China dialogues, seems specious if it does not allow a space for rights-defending lawyers.  But Prof. Clarke’s analysis is very top-down and doesn’t take into effect the rights-defending lawyers themselves.  And this is where the other fascinating essay from last Thursday comes into play, Li Tiantian’s blog post “I was Discharged from the Hospital” (translation courtesy of Siweiliozi’s Blog).  Li Tiantian is a Shanghai-based rights-defending lawyer, taken into custody on February 19, 2011 and held incommunicado for three months, finally released on May 24, 2011.  In a highly allegorical essay, Li Tiantian recounts her captivity:

It’s been a while since I’ve been in touch. First, let me tell you a story.

One day, a hornet worried unreasonably that a little bird would stir up its nest. (As it happened, some distant hornet nests had recently been stirred up.) The hornet grabbed the little bird and began stinging it frenziedly. Unable to bear the hornet’s stings and thinking there was no point to suffering this ordeal, the bird realized that no one would gain anything and that there was no way to change the hornet’s ways. So, the bird kneeled down to the hornet and kowtowed in order to extricate itself. The hornet, knowing that the force of justice was on the increase in the animal world, didn’t dare do anything rash to the bird and came up with a plan that would satisfy everyone. It agreed to release the little bird, but only if the bird promised: (1) not to speak of the past few months; (2) not to damage the hornet’s reputation; and (3) not to urge other animals to stir up the hornet’s nest. Finally the bird was free. (…read more here…)

Li Tiantian’s publication of this blog post soon after her release belies her commitment to any kind of silence concerning her unlawful detention.  The fact that her blog post was pulled – likely by the Chinese government – a few days later is not surprising.  But her brazenness is.  After three months in custody, unable to communicate to the outside world, and subject to heaven’s knows what, Li still feels the need to speak; still feels the need to give push back to the government.

Prof. Clarke presents a government that doesn’t want to give people like Li Tiantian any space; but Li Tiantian has no plans to give up that easily.  True that since many of the lawyers’ release, most have kept out of the spotlight, but will they continue to do so?  And how can the Chinese government expect them to?

Prof. Clarke is right to contend that the Chinese Communist Party is not interested in a “rule of law” if it means that it will contain the Party.  But after 30 years of constantly reiterating – both domestically and abroad – the idea of a rule of law, sending lawyers, judges, and academics abroad to study Western countries’ legal systems, and inviting various foreign legal NGOs to establish offices in China and work with Chinese layers, some belief in a rule of law must have permeated  society, especially for academics and rights-defending lawyers, the beneficiaries of much of China’s rule of law programs.

Prof. Clarke compares the Chinese government to a well organized army: sure there are lots of bureaucratic rules that must be followed, but those rules are not intended to be followed by the commander.  For Prof. Clarke, an army, with all the rules that help it function, is in no way a rule of law society.

But running a society is different from running an army; unquestionable allegiance to hierarchy is not naturally found in society like it is among foot soldiers in an army.  Ultimately, Prof. Clarke’s essay raises another question: while the Chinese government has little interest in rule of law, will these rights-defending lawyers succumb and just disappear?  Li Tiantian’s essay upon her release heavily implies that the answer is no and that among some in China, there is a true commitment to a greater rule of law, even if not found within the ruling party.

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