The Unwinnable Position of Lawyers, Especially Criminal Defense Lawyers, in China’s Judicial System – A Brief Review

The Unwinnable Position of Lawyers, Especially Criminal Defense Lawyers, in China’s Judicial System – A Brief Review

Yaxue Cao, September 30, 2024

Note: These are the remarks I made at the Columbus School of Law, Catholic University of America in Washington, DC on September 19, in conjunction with a screening of the documentary “The Defenders: 20 Years of Human Rights Lawyers in China”, organized by the Center for Human Rights, the Center for Law & Human Person, and the Center for Religious Liberty of the university. – Yaxue Cao

(Listen to the audio recording in browser)

Friends, ladies and gentlemen,

Thank you all for this occasion and thank you for giving me the opportunity to speak. Thank you for coming.

Eleven years ago, when I started the ChinaChange.org website, I went through an intense learning period. At the time, I had already lived in the U.S. for twenty years. Among the first things I read was the story of a human rights lawyer, whose name is Gao Zhisheng. In an article titled “Dark Night, Dark Hood, Kidnapped to a Dark Underworld,” he detailed how secret police snatched him away and the horrific torture he was subjected to. It was a surreal reading for me, even though I grew up in Communist China and had lived long enough to know a thing or two about its atrocities. I can still recall that sensation of being catapulted into a realm that I didn’t know existed. Then I was hit by a pang of guilt: I was ashamed of my blithe ignorance and moral failure. Gao Zhisheng’s essay was written in 2007, on my visits around that time, I saw gleaming new skyscrapers and highways, bustling construction sites for the 2008 Olympics; I enjoyed friends and family, fine food, and made excursions to remote Great Wall sites. But I had no idea that somewhere in a basement, a brave lawyer was being beaten, urinated on, his genitals being pricked by toothpicks for speaking up against the persecution of Falun Gong practitioners.

He is a Christian, defending the religious freedom of a Buddhist group.

Rights defense lawyers emerged in China in the early 2000s. They are the first generation of human rights lawyers. Gao Zhisheng is one of them. They were a small band of lawyers who had taken it upon themselves to defend dissidents, journalists, believers, private entrepreneurs, farmers whose homes and land had been forcefully expropriated to make way for government backed developers, victims of poisoned infant milk powder, women’s rights, workers’ rights, victims of workplace and other forms of discrimination. They fought, often for years on end with little pay, to correct wrongful convictions. In some cases, they even defended communist party officials who found themselves in desperate need of due process. In Beijing, they sought to directly elect the Beijing Lawyers Association with no avail.

The communist regime doesn’t like them. Punishment has followed on the heels of these lawyers, as in the case of Gao Zhisheng and many others, in many forms.

But before we get to that, I think a brief orientation regarding the Chinese lawyers’ unique position in China’s judicial system is called for. 

Did you know that, from 1949 when the Communists took power, up to 1979, China didn’t have a criminal code? The only civil law was the Marriage Law. No laws. But there was a “People’s Court” in every town and city, and the court judgment would list the offense and the sentence without citing any law. Periodically, the court would post its judgements, printed on a large poster, on a bulletin board in the town square. The ones receiving the death sentence had a red “X” over their names. One of my childhood memories was stopping by the bulletin on my way home from school, reading court announcements with a frozen morbidness. Each verdict had only two or three lines: crime and punishment. That was all.

To its credit, the communist regime did attempt to draft and pass a criminal code in those decades. But the draft never passed muster under the Party’s ideology. For example, the idea of “innocent until proven guilty” was deemed “capitalist legal theory” and therefore objectionable. The idea that certain elements must be established beyond a reasonable doubt for an act to be a crime, was held to be regressive. So, despite going through 33 drafts prior to 1979, China didn’t manage to promulgate a Criminal code until 1979, after Mao Zedong’s death, when the country embarked on Reform and Opening up. 

In short, in the first 30 years of its 75 years of history, the People’s Republic of China had no laws except for a few makeshift ordinances on this or that matter when they were needed at the moment. It had police, known as public security; for a few years at the beginning, it established a procuratorate system, but the regime could find no use for it between public security and the courts. As for lawyers? There was no place for them.

However, during Mao Zedong’s era, a massive number of people were penalized through the Chinese court system. Still more people were penalized without even a semblance of a verdict. Chairman Mao was the law. The party was the law. The party dictated crime and punishment, and the court was merely a functionary of the Party, an auxiliary organ that did little more than producing, posting, and filing away verdicts.

As China began Reform and Opening up in 1978, it quickly set up a proper-looking judicial system. It reinstated the procuratorate system to supposedly “supervise trials and litigations.” It went through a frantic period of lawmaking through its National Congress of People’s Representatives. The Ministry of Justice was newly created.

What was missing? Lawyers. Lawyers were missing. So the Party said, let there be lawyers.

The earliest lawyers in the 1980s were government employees, and their office was called “Legal Advisory Office,” subordinate to the Justice Departments. There were about 200 such lawyers, mainly in Beijing and a handful of other major cities.

The Chinese public first saw lawyers on TV during the trial of the Gang of Four in 1980. The four and some of their underlings were accused of perpetrating atrocities during the Cultural Revolution. Among other features of the trial which I will speak about later, I want to point out that eighteen lawyers were appointed by the state to defend the accused, but as Zhang Sizhi, leader of the defense team, wrote years later, “When this defense team was put together, the Ministry of Justice set rules for us: one, we were prohibited to argue against the predetermined criminal charges; and two, we were not allowed to question the facts put together by the government.” He went on to say that “I did what I was told to do and played the role of an obedient tool.”

In the years since, the lawyer profession in China has gone through a lot of changes and seen tremendous growth. By the mid-1990s, lawyers ceased to be state employees and became independent. Law firms popped up everywhere, the number of lawyers increased from 200 to 650,000 and counting by today.

But one thing has remained the same: The regime has never trusted lawyers; it has never meant to allow lawyers to become a player equal to the three other arms of the Party-controlled judiciary, namely, the police, the prosecution, and the court. Justice Bureaus at all levels conduct annual review of law firms and lawyers to make sure lawyers are toeing the line; lawyers associations are controlled by the authorities; laws and regulations have grown more and more stringent to limit lawyers’ legitimate work and expressions about the judicial abuses they experience. In recent years, law firms have been required to host a communist party branch. In other words, there are multiple leashes on lawyers as they do their jobs.

A well-respected lawyer named Si Weijiang once described it this way: China’s judicial system is like three people trying to play Mahjong – the police, the prosecution and the court. They need a fourth player to play, so the defense lawyer is called in. The lawyer is only allowed to dispense the tiles the other three parties need to win, but he himself is not allowed to win. If he dares to defy this understanding and actually wins, the three other players would flip the table over and beat him to the ground. Sometimes quite literally.

In the decade following China’s accession to the WTO and the advent of the Internet around the turn of the century, the economy grew rapidly, and civil rights awareness also quickly developed among the Chinese people with the explosion of information and dramatically improved living standards. Though this awareness often didn’t express itself as open demands for political change, the regime felt increasingly threatened. The day-to-day struggle for rights and justice was often fought in court and associated with one group: lawyers.

Not all lawyers though. Most lawyers in China do toe the line and play safe, focusing on making money. But a small number of them emerged with a strong passion for justice, for professional dignity, and they believed in the direction of the rule of law. They insisted on the sanctity of the law, and fought bravely and tenaciously every step of the way in the judicial process to seek fair and just application of the law. They were drawn to cases where the law was abused the most. 

Having studied them for several years, I’ve noticed a phenomenon worth pondering: Most of them came from very humble backgrounds; and a significant percentage of them have been drawn to the Christian faith.

They were working against all odds, fighting an upward battle. They quickly learned to mobilize public opinion and support through the internet, knowing that, without exposing the injustice suffered by their clients and the abusive legal process, they had little chance of deterring judicial wrongdoings.

Rights defense lawyers drew the ire of the government on many levels. Punishment came swiftly. For example, of the fourteen lawyers and legal activists that were featured as the Persons of the Year by Asia Weekly in Hong Kong in 2006, thirteen suffered torture, physical beating, imprisonment, and/or were disbarred in the years afterwards. Gao Zhisheng had served three years in prison, and in 2017, he was disappeared and nobody has heard from him since. It’s been seven years. We don’t know where he is, or whether he’s still alive.

In July 2012, a think tank under the aegis of the Ministry of State Security published an article in the overseas edition of People’s Daily, the Communist Party’s mouthpiece, titled “China’s Real Challenge Lies in the Next 5-10 Years.” It identified five groups of people who “attempt to change China from the bottom up in the name of internet freedom and liberal democracy: rights defense lawyers, underground religious believers, dissidents, internet opinion leaders, and vulnerable groups.”

That the rights defense lawyers are singled out as the first of the five groups reflected the Party’s deep-seated worries about these lawyers: though their number is disproportionately smaller compared to the other four categories, rights lawyers are the connecting nodes of all persecuted and marginalized groups in China.

In the years between 2006 and 2014, while the number of rights defense lawyers expanded, they were constantly targeted and suppressed. But the biggest shock came in 2015, known as the 709 Crackdown. 

The arrests began on July 9, 2015, and continued throughout the next few days in Beijing, Changsha, Guangzhou, Guilin, and elsewhere. Wang Yu, whom you will see in the film, was dragged away in pajamas from her home in the dead of night. Zhou Shifeng, the director of Beijing Fengrui Law Firm, was asleep in a hotel room when unidentified men kicked the door open early in the morning, sealed his mouth with duct tape, and whisked him away. Li Heping was accosted by several men in his office parking lot at noon as he stepped out of his car. Wang Quanzhang was swimming in a spring when he was surrounded by scores of officers and several police cars..… All the arrests were carried out by plainclothes police acting without warrant.

The 709 crackdown rounded up more than 20 lawyers and staffers, while over 300 lawyers and rights activists nationwide were summoned or visited by police warning them not to speak out or rally support for the arrested. They claimed that the arrested lawyers had “committed serious crimes.”

In the course of hundreds of interrogations of the 709 lawyers, an interrogator once said that the aim of the 709 case was to create a “hot stove effect” for the lawyers across China: once they realize the “stove” — that is, sensitive legal cases — is burning hot, they should avoid touching it for their own good.

Ironically, that interrogator had revealed the truth about the whole affair. That is, the 709 Crackdown was an act of terror.

To make the lawyers admit guilt for crimes that they didn’t commit, police employed horrendous torture, unthinkable in the 21st century. They forged evidence. They obstructed defense attorneys engaged by the 709 detainees’ relatives, and forced them to accept attorneys appointed by the government. Sham trials were conducted to complete the process, but not a single trial and its verdict can stand the slightest scrutiny.

The court’s “Criminal Judgments” present nearly identical words against the 709 defendants. These include “dissatisfaction with the national political system and judicial system and engaging in criminal activities to subvert state power and overthrow the socialist system.” However, the court fails to make its cases against these lawyers with their so-called “facts” and evidence, because they don’t hold water. None of them amounts to anything, let alone the crime of subversion of state power.

The suppression of lawyers has been systematic. Since 2015, the Chinese judicial authorities have revoked the licenses of at least 40 human rights lawyers. As I mentioned earlier, new regulations have been enacted in recent years to further restrict lawyers’ work and expression.

You know what has changed for the better in the Chinese judiciary? The court buildings. They are new, stately, and huge, not only in major cities, but in small towns and districts everywhere.

What hasn’t changed is how justice is dispensed. Preparing this speech, I looked up the trial of the Gang of Four in 1980. I noticed the following features:  

• Lengthy secret detention without trial;
• Use torture to force submission;
• Defense lawyers were picked by the state to give the appearance that the defendants were afforded the right to counsel;
• Witnesses were trained to collaborate with the prosecutors;
• The trial was rehearsed;
• The courtroom audience was carefully selected;
• Convictions and sentences were pre-determined before the trial;
• Only state media reporters were allowed in the courtroom;
• State media coverage was carefully edited to reflect and enhance the official narrative.

Thirty-five years later, the trials of 709 lawyers in those splendid new buildings bear exactly the same features. In some respects, things are far worse now. That is to say, to this day, the Chinese judiciary is still very much a cosplay.

Finally, let me say a few words about the documentary. It was made in 2022, and I am not a professional filmmaker. It’s a very imperfect work. In terms of the content, there are many important omissions either because there was no historical footage to use, or lawyers were in prison, not available for interview. In terms of the video quality, half of the footage was from other sources (with permission) with not-so-great resolution. But as imperfect as it is, I do hope that, when you leave here today, your idea of China will be somewhat altered, if not radically.

Enjoy the film. Thank you.

Yaxue Cao is the editor of this site. Follow her on X @yaxuecao

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