Not Guilty – Rights Lawyers Defending Falun Gong

Ten years ago, on July 20, 1999, the State’s Ministry of Civil Affairs declared Falun Gong and the Falun Dafa Research Society to be illegal, thus starting the persecution that has continued unabated to the present time. In spite of the State’s high-pressure tactics, a growing number of rights lawyers in China have stepped forward to provide a not-guilty defense in court.

The State: Only a Guilty Defense Allowed

According to a directive that the Beijing Bureau of Justice issued on July 29, 1999, “In no circumstances can a lawyer accept a retainer from any client involving Falun Gong issues without the bureau’s approval.

When prominent human rights attorney Gao Zhisheng tried to file a complaint with the Shijiazhuang Intermediate Court on behalf of a practitioner detained in a local labor camp, the presiding judge said to Gao, “Are you aware that lawyers aren’t allowed to take cases like this? The court belongs to the Chinese Communist Party, and so do the laws. There are currently orders from above to reject these cases, and that’s the end of it. Go talk to whomever you like and go file your case wherever you like. We don’t care.” [1]

According to various sources in China, lawyers in China were notified verbally of an internal mandate from the All China Lawyers Association under the Ministry of Justice that no lawyers in China may initiate lawsuits on behalf of Falun Gong and further, as defense lawyers, lawyers representing Falun Gong shall not prepare a not-guilty defense in criminal proceedings. Only a guilty defense is allowed. Violators may be subject to revocation of their license and a possible prison term.

In most cases, Falun Gong members have been charged with a Criminal Law Article 300 crime:

“Whoever forms or uses superstitious sects or secret societies or weird religious organizations or uses superstition to undermine the implementation of the laws and administrative rules and regulations of the State shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years; if the circumstances are especially serious, he shall be sentenced to fixed-term imprisonment of not less than seven years.”[2]

One of the earlier cases reported was Li Jianhui who was arrested in September 1999 for practicing Falun Gong and was to face trial on Jan 20, 2000, in the court of Futian District, Shenzhen. The two lawyers he retained were preparing a not-guilty defense. Two days before the trial, the authorities placed pressure on the lawyers to abandon the not-guilty defense. As a result the lawyers withdrew from the case. [3]

In the case of 22 Falun Gong practitioners who were tried in secret on January 28, 2000, in the People’s Court, Eastern District, Beijing, the authorities warned the defense lawyers not to discuss the objective and subjective elements of the charged crime, or a not-guilty defense argument or the nature of Falun Gong in their defense. The lawyers were asked not to withdraw so that the trial could proceed. Among the practitioners, Li Xiaobing and Li Xiaomei, the two sisters, were arrested before dawn on July 20, 1999, and have been detained ever since.[4]

In December 2004, prior to trial, the Chongqing Public Security Bureau in Sichuan Province pressured Wang Hairong, a lawyer known for her representation of rightists during the “Great Cultural Revolution.” Her client, Zhang Qiyong, was a 27-year-old Falun Gong practitioner arrested on the street on May 1, 2004, for practicing Falun Gong. Wang had visited him in the detention center and found he had been tortured. [5]

From 1999 to 2004, there was no public report of any not-guilty defense in court by defense lawyers in the State criminal proceedings against Falun Gong practitioners.

Rights Crusaders with Not-Guilty Defenses

Since 2004, many high-profile Falun Gong defenses have created political tremors and attracted attention from the global community.

1. The most prominent and outspoken rights lawyer advocating for the rights of Falun Gong is, perhaps, Gao Zhisheng, who in October 2005 wrote an open letter to Hu Jintao and Wen Jiabao detailing the torture suffered by practitioners and calling for an end to the persecution. Over the following months he traveled and conducted fact-finding investigations. His findings made public the existence of torture chambers and widespread sexual violence against Falun Gong. In retaliation, the authorities arrested Gao on charges of “subversion.” In 2006 they sentenced him to three years of imprisonment.

2. Lawyer Guo Guoting from Shanghai started to represent Falun Gong practitioners in July 2004, when he took a missing person case looking for Huang Xiong, who had disappeared almost two years earlier in Shanghai. His investigation ran into a dead end at the Putuo Public Security Bureau and Tilanqiao Prison, both in Shanghai. Later Guo represented Zhai Yanlai, a Falun Gong practitioner on a hunger strike in prison. By February 2005, Guo had requested four times to see his client Zhai, but the Shanghai prison authorities refused. He also represented and made a not-guilty defense for Chen Guohui, who became vegetative after being tortured in detention and also took three others cases on behalf of Falun Gong practitioners in criminal proceedings. Before long, lawyer Guo found himself detained and interrogated for not following the State directive on handling Falun Gong cases. In May 2005, Guo was finally exiled to Canada. [6]

3. Lawyer Yang Zaixing from Guoxi Province made a not-guilty argument for his Falun Gong client on December 8, 2005, at the People’s Court in Pingguo County, Guangxi Province. His client Nong Youyue had been arrested for distributing a CD on the persecution. In January 2006, Yang represented a young lawyer who had been sentenced to 15 months of forced labor for practicing Falun Gong. Earlier in May 2005, Yang represented an 80-year-old retiree who lost his pension because he practiced Falun Gong. [7]

4. Six lawyers from Beijing, Li Heping, Li Xiongbing, Zhang Lihui, Li Shunzhang, Teng Biao, and Wu Hongwei made an unprecedented not-guilty defense in the second trial on April 27, 2007, in Shijiazhuang on behalf of their clients charged with “using a cult organization to undermine the implementation of law.” Their clients were Wang Bo and her parents. Back in 2001, Wang Bo had been sent to a labor camp for holding a Falun Gong banner on Tiananmen Square. In 2002, the State’s China Central TV broadcast a program claiming that Wang Bo repented and decided not to practice Falun Gong. In 2005, Wang posted online a self-made video documenting how the State had brainwashed her against her will. Due to this posting, as well as various Falun Gong related materials found at her house, the Changan People’s Court sentenced her and her parents in the first trial to four and five years of imprisonment respectively, without any legal representation.[8]

5. Seven lawyers including Tang Jitian, Han GuanZhi, Xie Yanyi, and Li Fuchun argued in court on October 10, 2008, in Chengdu, Sichuan Province for eleven practitioners charged with “organizing and using a cult organization to undermine the implementation of law.” The Falun Gong practitioners were later sentenced to three to seven-years of imprisonment. [9]

6. Nine lawyers and one hundred twenty-seven supporters of these Falun Gong practitioners jointly filed a statement with the Hebei Province High Court against the Shijiazhuang Intermediate Court for judicial interference with the lower court. Their clients, Song Aichang and Wang Sanying were sentenced by a lower court at Qiaoxi District, Shijiazhuang, Hebei Province to three and four year of imprisonment. During the review of the lower court’s file when preparing for the appeal, lawyers discovered the instructions from the Intermediate Court on how the lower court should handle the case. [10]

7. On March 10, 2009, nine Lawyers representing thirteen Falun Gong practitioners walked out of the court of Bei District due to judicial impropriety. It was the third time that the State Procuratorate attempted to prosecute these practitioners for “using a cult organization to undermine the implementation of law.” The court dismissed the earlier attempts for lack of evidence. The State Procuratorate offered no new evidence but the court accepted the case and was to start the trial. [11]

8. Ten lawyers prepared a not-guilty defense for the February 6, 2009, trial on behalf of six Falun Gong practitioners in the court of Huanggu District, Shenyang City, Liaoning Province. These practitioners were charged with “using a cult organization to undermine the implementation of law.” Before the trial, the court requested the three lawyers from Beijing to provide personal information including their home addresses, while local counsels from Shenyang received orders from Shenyang Bureau of Justice to either withdraw or cooperate with the authorities, or their licenses might not be renewed. [12]

The Rights Lawyers’ Arguments

Rights lawyers argue that there has been no China law banning the practice of Falun Gong. The issues they have raised range from Constitutional issues to violations of criminal procedures. [13]

1. The persecution is unconstitutional and illegal.

The persecution is in violation of the right of religious freedom under China’s Constitution. Article 33 of the Constitution of the People’s Republic of China states, “The State respects and preserves human rights.” Article 36 states, “Citizens of the People’s Republic of China enjoy freedom of religious belief. No state organ, public organization or individual may compel citizens to believe in, or not to believe in, any religion; nor may they discriminate against citizens who believe in, or do not believe in, any religion.”[14]

The rights lawyers argued that the legal bases cited by the State in support of the persecution are in violation of China’s Legislative Law and the Constitution.

For example, on July 20, 1999, the State banned the practice of Falun Gong by issuing notices from the State’s Ministry of Civil Affairs and the Ministry of Public Security. Only on October 30, 1999, did the legislature, the National People’s Congress Standing Committee, ratify the ban and pass a resolution, “The Resolution To Guard Against and Punish Cult Organization Activities.” Lawyers argue that this resolution together with Criminal Law Article 300 is an unconstitutional provision because it is was established to punish what it calls “the crime of using a cult organization to undermine national laws,” which undermines Article 36 of the Constitution.

On October 8 and 9, 1999, and later again on June 11, 2001, the Supreme People’s Court and the Supreme People’s Procuratorate issued “Explanations…Concerning Laws Applicable to Handling Cases of Organizing and Employing Heretical Cult Organizations to Commit Crimes.” (Interpretation I and II). These judicial interpretations, according to lawyers representing Falun Gong practitioners, violate Legislative Law and the Constitution because they go beyond the scope of China’s Criminal Law. They deprive citizens of their civil and political rights and restrict freedom, which falls under legislation or legislative interpretation. Furthermore, the Two Supremes’ judicial interpretation that “Falun Gong is a cult organization” violates the Article on Religious Freedom in China’s Constitution.

2. Government cases lack the required elements of a crime.

In most cases, the evidence the State Procuratorate presents is primarily that Falun Gong practitioners prepare and distribute materials on what Falun Gong is and how the practitioners are being persecuted.

The judgment issued by the court usually states in its findings that the Falun Gong practitioners were dissatisfied with the authorities designating Falun Gong as a cult and banning it, and continued to produce Falun Gong materials for communication purposes, thus committing the crime of Article 300.

According to Chinese criminal law, the four elements of a crime are the object, the subject, the actus reus and the mens rea.

The rights lawyers believe that there is no object of the crime in these Article 300 cases, because there has been no China law banning the practice of Falun Gong and the documents cited as the legal authorities for persecution are in violation of China’s Legislative Law and the Constitution. Without any law banning the practice of Falun Gong (the object of the crime), how can one have the required criminal intent to violate the law (the mens rea)? Likewise, the distribution of Falun Gong materials does not constitute the actus reus. [15]

State Deems Not-Guilty Defense a Threat

Recently, a classified document issued by the 610 Office earlier this year was brought to light. The document entitled, “On the Prevention and Control of Enemy Tendencies” lays out detailed steps to prevent not-guilty pleas and potential not-guilty verdicts. [16] For example,

“The District 610 Office should dispatch people to court to audit proceedings of Falun Gong cases and help deal with any sudden situations.”

“The District 610 Office shall coordinate and remind the court to set up the court environment and better choose a court that accommodates fewer people so they can restrict the number of people who come to court.”

This 610 directive requires efforts to be made to learn the identities of out of town lawyers in the Falun Gong cases and the information about their law offices, “especially if they have a tendency to unusual opinions, and to report the information to the City 610 Office as soon as possible.”

“In view of possible unusual trends, the 610 Office shall work with police and domestic security units to dispatch police forces to investigate and collect evidence… and at the right time, prepare corresponding stand-by materials for propaganda… If necessary, we can adopt the method of secretly collecting evidence and handling it afterwards if there are any counter-revolutionary propaganda activities outside of the court.”

A High Risk Profession

When the lawyers have tried to take the law seriously and hold the State literally accountable to the law, such action has had a widespread impact. This in turn also makes the profession highly risky because of the state-sponsored retaliation.

According to Guo Guoting, there were ten rights lawyers in 2003. All have since lost their jobs. Four were tortured or kidnapped. Five were savagely beaten. Two were sent to prison without trial. [17]

Gao Zhisheng, a Nobel peace prize nominee, once said that every human rights lawyer ended up as a human rights case. After he published open letters to the State leaders calling for an end to the persecution of Falun Gong, he was imprisoned and tortured. He subsequently “disappeared.” No one has been able to contact him or learn of his whereabouts since the police took him from his home in February 4, 2009.

On February 28, 2009, the police arrested Heilongjiang lawyer Wei Liangyue while he represented his Falun Gong clients.

On April 12, 2009, the authorities savagely beat Beijing lawyer Cheng Hai while he was meeting with the mother of his client Tao in Chengdu, Sichuan. Cheng was retained to represent Tao, a Falun Gong practitioner, on a medical parole matter. Tao’s mother had been under heavy surveillance. [18]

On May 13, 2009, Beijing lawyers Zhang Kai and Li Chunfu were detained and beaten by policemen in Chongqing City, Sichuan Province while meeting with their client. They were retained by Jiang whose father died in a forced labor camp. In 2008, the father had been sentenced to a one year term of forced labor camp. [19]

As of June 1, 2009, at least seventeen rights defense lawyers had not received the new annual licenses they needed by the end of the previous month, in effect disbarring them. Three firms were also denied approval, affecting more lawyers.
“In fact, what the authorities are trying to achieve is to eliminate the firms and lawyers that fight for the public interest,” said rights lawyer Tang Jitian in Beijing. [20]

An Announcement in Regards to Falun Gong Issues

From the Regulation Section,
Judicial Bureau of Beijing City

To all Law Firms and District and County Judicial Departments:

All consultations and retainers in regards to Falun Gong issues must be reported promptly.

Particular requirements are:

1) In no circumstances a lawyer can accept a retainer involving Falun Gong issues. The case should be reported to the Regulation Section (Phone: 63408078). Decisions will be made only after reporting.

2) In any event when a client requests consultations involving Falun Gong issues, explanations from all law firms must conform to the law and be strictly in accordance with the tone of the Central Government.

3) All recent consultations and retainers on Falun Gong issues must be documented and faxed immediately to the Regulation Section on or before August 2, 1999. (Fax: 63408034)

Regulation Section,
Beijing Bureau of Justice

July 29, 1999

Not Guilty – Rights Lawyers Defending Falun Gong

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