From November 13-24, 2006, the business channel of China’s state-run media Chinese Central Television (CCTV) broadcast a 12-episode documentary series called The Rise of Great Nations. The film analyzed the rise and fall of nine strong countries during the past 500 years, including Portugal, Spain, the Netherlands, England, France, Germany, Japan, Russia, and the United States. To complement the program, the station concurrently published a series of eight books on the topic.

According to About.com, a state-owned television crew (all television stations in China are owned by the government) produced the film. Guided by Qian Chengdan, a history professor at Beijing University, and Wang Jisi, chairman of the International Strategy Institute of the Chinese Communist Central Government’s Party School, the crew spent three years making the series.

Xinhuanewsnet, Beijing’s mouthpiece, used a quote from Mr. Qian to explain the reason to produce the film: It was based on Hu Jintao’s speech about learning from the advanced experience of others and probing our own path of development.

According to an article from CCTV’s website, the inspiration for making the film came when a few selected scholars gave a lecture series about investigating the development of major countries since the 15th century. The central government’s Political Bureau first organized this collective study session on November 24, 2003.

Beijing claims that the film emphasizes thinking about reality from a historic perspective. To promote the program, the authorities arranged a series of activities around the film. CCTV aired the series a second time, three days after the first showing. Special guests were invited to participate in live interactive discussion. On November 22-23, Sina.com and People.com, two of the biggest official websites in China, invited the author and the producer of the film as well as some specialists to conduct online interaction with the readers.

Not only was the film made available to the general public, but top-level officials were also strongly encouraged to watch it. According to the overseas pro-CCP media China Press, The nine members of the Politburo started to study The Rise of Great Nations while CCTV was airing the film, suggesting that China is facing the reality of the ‘rise,’ and is repositioning itself.

The film quickly became a hot topic on the Internet. According to Voice of America, a Google search revealed that more than 1.55 million websites were found to have contents related to The Rise of Great Nations.

On December 8, for example, the Wall Street Journal published an article entitled The Rise of Great Nations by Hong Kong University researcher David Bandurski. The article criticized the film as a flashy series, ordered by Hu Jintao, whose purpose was to echo the ideology of China’s peaceful rise and to eulogize the Party.{mospagebreak}

It was pointed out that, during the 90-minute section about the United States’ rise, the word democracy was mentioned only once on the occasion of talking about the Democratic Party. During the total 9-hour program, democracy was mentioned a total of 12 times.

Many also criticized the film for avoiding the real reason for these countries’ rise—focusing instead on the economy, the military, and the government—thus giving a distorted picture of the reason for their rise.

For example, the film made no mention of the importance of the spirit of the U.S. Constitution, and the constitutional protection of freedom. Rather, it emphasized science and technology, including patents in the United States. One analyst commented that the film conveyed the message that the rise of the United States resulted from the protection of patents.

In the section on Russia’s rise, the film eulogized the communist revolution as an example of great success in leading the Soviet Union from an agricultural country to an industrial one. There was not a single word mentioned about Stalin’s repression in the late 1930s, as if the episode never occurred.

A BBC commentary expressed that the film proposed the following logic for China: The development of the world is based on fortune. Fortune can be achieved through power, technology, and war.

EastSouthWestNorth quoted a viewer as saying: The intent of this film ‘to learn from the West’ is obvious. But what does it suggest that we should learn? To make your nation strong, do you get it? Getting rich, universal suffrage, human rights, constitutional governance and all that are only means that serve to make the nation strong. There is one and only one true goal: to be a strong nation.

As Chinese journalist Li Datong points out: The true ingredients of national greatness are very far from those imagined by the official Chinese mind.

A prominent documentary series, The Rise of Great Nations, is being broadcast during prime time on state-run China Central Television (CCTV). The series is fueling a fresh round of discussion and debate on the already hot topic of China’s own rise. In recent years, China’s torrid pace of economic advancement and military buildup has certainly drawn its share of attention and concern from Western countries. Such a high profile film aired by the state’s flagship TV station is certain to receive scrutiny. So indeed, what kind of message is Beijing trying to send?

The Rise of Great Nations is a 12-part documentary series that analyzes the rise and fall of nine Western powers during the last 500 years. Rumor has it that the idea for the film was born during a collective study session of the Central Politburo in 2003, when elite scholars briefed top Chinese communist leaders on their research into the development of major powers since the 15th century. According to the government-owned Xinhuanet website, the original idea came from Chinese President Hu Jintao, who wanted to guide China’s development using lessons learned from the past.

At first glance, the film has a mostly scholarly slant, with refreshingly few communist buzzwords that infest most productions from the Propaganda Department. However, it is telling that the film was mostly focused on the subject countries’ scientific progress, military strength, diplomatic relations, and government activities, whereas very little was said about the importance of human rights, democracy, rule of law, and religious freedom as factors in the countries’ rise. The viewer is likely to get the impression that a nation’s rise is primarily due to a powerful economy and military.

Such a sentiment is consistent with the Chinese regime’s mantras that backwardness will inevitably be exploited and attacked and China’s prosperity requires a strong army as a guarantee. During former Chinese leader Deng Xiaoping’s reign, Deng established the internal diplomatic policy of hiding our intentions, buying time, and striking when ready to avoid potential confrontation. However, Hu does not have the same level of authority in the leadership as Deng and needs to establish his own legacy. Since coming to power, Hu has adopted the policy of playing a prominent role at times in international affairs. On one hand, Hu wants to bolster his image as the leader of a great nation. On the other hand, he continues to sell the peaceful rise theory to mitigate international criticism and concern. In that regard, the film may have elements of both approaches.

Domestically, the film could serve as a call for nationalism and a temporary salve for the severe social problems associated with China’s rapid, but at times reckless, economic development. As the nation is facing unprecedented official corruption, an ever-widening gap of wealth distribution, and alarming amounts of social unrest, the current regime is left with few choices.

INTRODUCTION

The myth of Chinese legal reform, with accompanying claims that the Beijing regime is committed to implementing the "Rule of Law", constitutes one of the most assiduously cultivated scams in recent political memory. The governments of both Jean Chrétien and Paul Martin were deeply committed to portraying the Beijing regime in the most glowing terms and the Chinese "legal" system, or more correctly the lack of a legal system, was initially an impediment.

During China’s "Warring States" period, centuries Before Christ, a philosopher of the day was known for the aphorism, "A White Horse is not a Horse." We shall not explore the reasoning behind that statement here; the expression is significant for our purposes only because it is still familiar to every literate Chinese. Today, if the topic is the Chinese "judiciary," we might alter this ancient sentence to "A Chinese ‘Court’ is not a Court." The truth of this statement is fundamental to any real understanding of how the Chinese "judiciary" functions, whether the Beijing regime is in¬deed committed to implementing the "Rule of Law," whether a Canadian investor could successfully sue a Chinese party in a Chinese "court" (or defend against a Chinese lawsuit), or whether a Chinese fugitive deported to China from Canada could receive a fair trial.

The nature and quality of Chinese "courts" was back on stage recently when it became the focus in a Judicial Review of the Pre-Removal Risk Assessment ("PRRA") finding in the case of Chinese fugitive Lai Changxing. Lai’s lawyer argued in the Federal Court of Canada what is simply "trite law" to every lawyer or legal scholar having even the most minimal knowledge of the Chinese "judicial" system: that there is no semblance of due process, that there is no such thing as a fair trial in any Chinese criminal "court" (or for that matter any "court" hearing a lawsuit pitting a foreign party against a Chinese party), and that Mr. Lai would be unable to obtain counsel or mount a meaningful defense.

Esta Resnick, a trial lawyer from the Department of Justice who has represented Citizenship and Immigration Canada ("CIC") throughout its seven year crusade to help the Chinese Gestapo take Mr. Lai into custody, continued her long-standing efforts to clothe the farcical and fraudulent Chinese "judicial" system with respectability, asserting that defendants have the right to legal counsel and to present evidence, that trials are public, and that the "courts," rather than the Chinese Communist Party, decide cases.

With the single exception of the fact that Chinese defendants do technically have the right to defense counsel, a right which in reality is of little benefit, [1] each and every one of Ms. Resnick’s statements is demonstrably and patently false. Only Ms. Resnick, of course, knows for certain whether those statements flow from a failure on her part to read as widely as does the general public, or whether they are simply necessary because the reality of the Chinese "judicial" system is not conducive to her goal of delivering Mr. Lai into the hands of the Chinese Gestapo.
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Under the sub-headline "Defense of Chinese justice is pure fantasy", Rod Mickleburgh commented in the Toronto Globe and Mail of January 18, 2007 that:

"At times, it felt like Alice in Wonderland in Federal Court this week, as government lawyer Esta Resnick argued the merits of China’s criminal justice system…. Defendants who are tortured merely have to complain to the authorities and action will be taken, according to Ms. Resnick…. The reality, of course is quite different."

Mickleburgh spent four years as the Globe correspondent in China and has a much deeper understanding of Chinese realities than does the gullible Ms. Resnick. Mickelburgh quotes at length from testimony of Jerome Cohen before the US Congress in 2005, substantially the same evidence he gave before the Immigration and Refugee Board ("IRB") when Ms. Resnick called him in 2001, ostensibly to make CIC’s case that the Chinese "judicial" system is a model for the world! [2] Cohen said in part:

""The protections afforded by the Criminal Procedure Law are too few, ineffectual, and riddled with exceptions to permit meaningful defense… reticent suspects are frequently subjected to torture…. The outstanding feature of [China’s] criminal investigation is the inability of the suspect, his lawyer, family or friends to challenge the legality of any official actions before an independent tribunal…. Political realities preclude this."

Ms. Resnick has, in the course of past court appearances in the Lai case, actually implied that the Chinese "judicial" system is superior to Canada’s. When Lai counsel David Matas cited expert evidence previously given before the IRB that there is a 100 percent conviction rate in the Chinese criminal "courts", Resnick replied that this is because the Chinese police and prosecutors are so careful and thorough that they just don’t make mistakes! Obviously, in the Chinese system According To Resnick, there could be no Donald Marshalls, David Milgaards, or Guy-Paul Morins. [3]

We have to this point largely focused on what the Chinese "judicial" system is not. Essentially, it is not a "judicial" system at all. A Chinese "court" is simply a very low level administrative organ of the Chinese Communist Party. That said, I turn now to a discussion of what the system is in reality, how the "courts" are structured and organized, what happens in a Chinese "court," and what faces Chinese trial lawyers when they attempt against all odds to achieve results based on some semblance of the Rule of Law.

ORGANIZATION OF THE CHINESE "COURTS"

National hierarchy
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Throughout the country, the "courts" are organized to precisely parallel the hierarchical structure of the government and the Chinese Communist Party. The governmental structure is composed of "People’s Congresses" at each level. The local People’s Congress is "elected" at the local level; it in turn elects the members of the Provincial People’s Congress and the Provincial Congresses elect delegates to the National People’s Congress, which passes for the national parliament, but has no power and sits only when the Communist Party summons it to rubber stamp Party decisions.

This structure precisely parallels the structure of the Party, and at every level it is the Party official who holds real power, while the state functionary defers to him. For example, the "mayor" of Shanghai, who is not elected but is appointed by the Chinese Communist Party at the central level, is not really the power holder in Shanghai politics. He must always defer to the Secretary-General of the Shanghai Communist Party.

Theoretically, "judges" are appointed by the People’s Congresses at each level. This means that the local People’s Congresses appoint district "judges," the Provincial governments appoint the "judges" to the Higher People’s "Courts," and the "judges" of the Supreme People’s "Court" in Beijing are appointed by the National People’s Congress. In practice, however, the Chinese Communist Party exercises total control over all the People’s Congresses at every level and in reality it is therefore the Party which ap¬points all "judges" to all Chinese "courts." Moreover, with extremely rare exceptions, all "judges" are required to be Communist Party members. They may be removed immediately by the Party at whichever level they were appointed. And those who resist Party directives are indeed removed quickly.

At the top of the "court" system, of course, is the Supreme People’s "Court" in Beijing. It is comprised of more than six hundred "judges", the majority of whom live together in two large dormitory style residences in the capital city. This huge number reflects the fact that these "judges" do not really "hear" cases; rather they "handle" them in an administrative fashion, according to Party instructions.

Directly under the Supreme "Court" are the Higher People’s "Courts" of each province. Under the provincial "courts" come the Intermediate People’s "Courts," and under them the District People’s "Courts." Directly under the Provincial "Courts" also, and having status equal to that of the Intermediate "Courts" are the specialized "Courts:" the Maritime "Courts," Railway "Courts," Military "Courts," and the Forestry "Courts."
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One appeal is allowed and that appeal is to the next level above that of the "court" of first instance. The single exception to this rule is that in theory, no death sentence may be carried out until it has been reviewed and approved by the Supreme "Court." In practice, executions are often carried out immediately after sentence. This is because in 1983 the Supreme "Court" delegated its review powers to the provincial level and allowed the provincial "courts" to review their own death sentences. It has for this reason been commonplace in China over many years to have a death sentence read out by the provincial Higher People’s "Court," and then to immediately have the review and approval read out by the same "court," with execution following immediately thereafter. (In response to embarrassing publicity, the government and Supreme Court recently announced new regulations to correct this, but for reasons which will not be canvassed here, there is little ground for expecting any change to flow from these regulations)

In the Lai case, one of the uncounted mistakes and misstatements to be found in the Reasons of the IRB panel was the conclusion that the criminal "courts" are distinct from other Chinese "courts" and assumptions should not be made about standards in the criminal "courts," based on what happens in the civil and economic "courts." In fact, the procedures, practices and characteristics to which I shall now turn apply across the board to all China’s so-called "courts."

One of the most immediately noticeable aspects of the Chinese "bench" is the youth of its "judges." Just a few years ago, many were retired army officers who had never had a day of legal training in their lives. Today, all new "judges" are required to have a law degree and they are very young, some as young as 23. The average age of a Chinese "judge" today is some¬where between 30 and 35.

We shall shortly see that as a matter of practice, the ranking Communist Party official within each "court" is the ultimate decision maker. But even as a matter of statutory theory, aside from the apochryphal promise of judicial independence found in Article 126 of the Chinese Constitution it is manifestly clear that the "courts" have no independence whatever. The Organic Law of the People’s Procuratorate (the prosecution arm of government) states clearly that the "courts" are under the supervision of the prosecutors. So to apply that to the Lai case and the claims that Mr. Lai could receive a fair trial, Mr. Lai’s "judges" would be subject to the supervision and correction of the prosecutors who would be presenting the case against him. Moreover, the same Constitution which purports to guarantee judicial independence also states that the "courts" are under the "leadership" of the Chinese Communist Party.
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The "trial" process and the participating actors

In June of 2000, at the invitation of Canada’s ambassador to China, I and three other Canadian lawyers gave an evaluation of the progress of the Chinese legal system, or lack of same, to Madame Justice Beverley MacLachlin and several of her colleagues on the Supreme Court of Canada. The other presenters’ practices had exclusively involved the drafting and negotiation of investment contracts and they had had no contact with the Chinese "courts". Their presentations therefore focused on the development of statute law and regulations. My focus was on how my clients were routinely fleeced and extorted by Chinese "courts" acting in concert (and usually for a percentage of the "judgment" proceeds [4] ) with Chinese claimants. I stated, truthfully and accurately, that there was no due process whatsoever in the Chinese "judicial" system, that it was fraudulent and corrupt from top to bottom, and most importantly that the trend was in the wrong direction. That is to say that the "courts" were markedly worse than they had been 10 or 15 years earlier, despite the claims of huge progress flowing from Jean Chrétien at the time.

The next day I found myself at a luncheon in Shanghai, sitting next to one of the Canadian Supreme Court Justices to whom I had presented in Beijing the previous day. He informed me that the Chinese had that morning taken the group to witness a criminal trial. He referred to my description of the process the previous day and remarked that he had been quite surprised at what he had witnessed during the morning’s trial. He said, "Of course none of us knows Chinese, so we couldn’t really follow what was being said, but it certainly seemed that everyone was taking the proceedings very seriously. The accused had a defense counsel and the counsel was questioning witnesses. Certainly, the judges appeared very serious and involved." (I wish he had had a chance to observe Chinese "judges" in a trial not attended by foreign dignitaries.)

I told him that the "trial" he had witnessed would almost certainly have been staged, complete with professional actors playing the parts of judges, accused, prosecutor, and defense counsel. Moreover, they would have rehearsed for days before the arrival of the Canadian jurists. This is something Beijing routinely arranges for the benefit of foreign lawyers, judges, and legal scholars.

But more importantly, even a real "trial" in China is in fact nothing more than theatre. A foreign observer, videotaping the process, could be forgiven for looking around and concluding that the proceedings were genuine. Gone are the days when Chinese "courts" were just dirty rented rooms in crumbling tenement buildings. Today, a Chinese "courtroom" looks exactly like a real courtroom in countries with real judicial systems. They are bright, shiny, well furnished; they have counsel table for each party, witness stands and a raised and impressive "bench" for the three presiding "judges". Beijing has also become sufficiently sophisticated to realize that blue military style uniforms with visored caps do not really project a sense of judicial majesty. Therefore, for some years now, Chinese "judges" have been clad in black judicial robes and they look for all the world like real judges.
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The three robed "judges" sit above the court¬room behind the raised bench looking suitably solemn (when foreign visitors or the media are present, but looking bored otherwise and in fact absenting themselves from time to time as the evidence unfolds in cases which do not attract public scrutiny). Witnesses are called for each side in civil cases; no witnesses for the accused are ever called in a criminal "trial." Lawyers for each side cross examine the other party’s witnesses.

Documents are from time to time passed up to the "judges," who appear to gravely consider them. However, there is no Discovery at any point in the Chinese "judicial" process. It is common for one party to produce at "trial" a huge written opinion from a purported expert, which opinion has not previously been provided to the other side. It may run to a couple of hundred pages. At this point the "judges" may ask the other side for a response to this thick document. The document then goes into evidence. The author is not in court and the other party has no time to examine the contents of the document. If those contents support the "judgment" the Party Secretary within the "court" has determined should issue in the case, then they may be cited in the Reasons; but not otherwise. In any event, in a civil case involving a dispute between a Chinese and foreign party, any expert report put forward by the Chinese party will be accepted and any such report proffered on behalf of the foreign party will be rejected as a matter of course. [5]

But when the hearing is concluded, the role of the "judges" is effectively over. It is at this point that anyone with knowledge of what happens next fully appreciates the validity of the statement that the hearing itself is strictly theater.

I turn now to the single most important factor in demonstrating the fraudulent nature of the Chinese "courts," and the one which limits them to the role of theater. There is a current saying amongst Chinese lawyers and judges who truly believe in the Rule of Law and this saying, familiar throughout all legal circles in China, vividly illustrates the futility of Canadian attempts to "assist China in improving its legal system" by training judges. It is "Those who hear the case do not make the judgment; those who make the judgment have not heard the case."

This saying reflects the function of the "Judicial Committee," the most important body within each "court." The "Judicial Committee" is a standing committee composed of between five and seven "judges," depending on the size of the "court." It meets regularly, usually once a week. It is here, behind closed doors, completely away from public view and scrutiny, that most cases are decided. Nothing which has transpired in the "courtroom" has any impact on the "judgment." In one afternoon, a Judicial Committee may decree the "judgments" in up to 25 pending cases. In virtually all instances, the Judicial Committee rules on these "judgments" without having heard any of the witnesses or, indeed, having attended the hearing. Moreover, I have often been informed by personal friends who sit on judicial committees that the members have not even consulted the file on the case, before ruling on the "judgments." The key to disposition by the Judicial Committee is the input of the Communist Party spokesman on the committee.
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In a case involving a substantial claim by a Chinese party against a foreign party, or, for that matter, a substantial claim by a Shanghai party against a Chinese party from elsewhere, the discussion within the committee usually centers on the economic health of the Plaintiff and on how quickly the plaintiff needs the money.

In a criminal case, the verdict will have been decided before the trial and the deliberations of the Judicial Committee are largely limited to the content of the Reasons to be drafted.

Whether the case be civil or criminal, the circle of fraud is closed by the fact that the Judicial Committee does not sign the "judgment" it has decreed. Ensuring that the committee remains faceless and invisible, it instructs the "judge" who presided over the hearing to draft the Reasons and the Reasons then are issued over the signatures of all three "judges" on the tribunal which heard the case. So the public has no clue that the "judgment" was decided behind closed doors by individuals with no knowledge of the facts and no interest in the law.

One would think that the Judicial Committee’s function would be sufficient to ensure that all "judgments" of Chinese "courts" would be politically driven, rather than judicially driven. Not so. As a final precaution, the architects of the "judicial system" have ensured that the most powerful person at any level of the hierarchy is not the Chief Justice of the "court" at that level. Indeed, the most powerful person is not a "judge" at all, and has no legal training. He is the Chairman of the Political Legal Committee in the People’s Congress at every level. In the almost unimaginable event that a "court" at any level were to render a "judgment" in defiance of the Communist Party, the Chairman of the Political Legal Committee has the power to simply overturn the decision of the "court" and substitute his own.

Throughout my years in China, one of my closest friends was a Judge and first rate legal scholar who eventually was elevated to the Supreme "Court" as head of the Transportation Division. He divulged to me many of the inner workings of that "court", but for many years I could not cite him as a source. His untimely death in 1997 released me from this constraint. CIC argues that Lai Changxing would receive a fair trial if sent back to China, notwithstanding that the former Chinese Premier had publicly opined that Lai should be executed "10 times over." But my friend on the Supreme Court related to me on several occasions how President Jiang Zemin would regularly call up the Chief Justice of China, inform him that a given case would soon come before the Supreme Court, and then give instructions concerning the "Judgment" which would be required. The Chief Justice would then appoint a group of "judges" to handle the case according to the presidential instructions.
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In closing, I turn to a final peculiar aspect of the Chinese criminal "justice" system which speaks to the Lai case, but also to the system in general. Anyone researching the disposition of criminal cases in China will be struck by two curious facts. First, the vast majority of Chinese criminal cases result in confessions by the accused. The "trial," therefore usually is about mitigation and sentencing. The second curiosity flows directly from the first. Most Chinese defense lawyers have seldom ever had a client enter a plea of "Not Guilty."

It is literally true that a "Not Guilty" plea is considered a gross insult to the "court," the police, and the prosecutors. It necessarily implies that they are wrong, and/or negligent and they jealously guard the fiction espoused by Esta Resnick in the Lai case that "they are so thorough and careful that they just do not make mistakes." So unusual is a guilty plea that most local "Justice" bureaux have issued standing instructions to all members of the defense bar on what to do in the unfortunate event that a client insists on pleading "not guilty." The three most important of these require the lawyer to first notify the "Justice" Bureau of this unexpected turn of events, and then to notify the senior partner in the lawyer’s law firm; thereafter the matter must be handled by the senior partner and an outline of the defense must be presented to the "Justice" Bureau before trial.

A slogan appearing on the wall of all police interrogation rooms reads "Confess and receive leniency; deny your guilt and be punished harshly."

For these reasons, defense counsels are almost always limited at "trial" to speaking to sentence, in hopes that a mitigation argument might save their client from execution and result in mere imprisonment. This was driven home to me in discussion with one noted defense lawyer. I interviewed a number of criminal defense lawyers during my time in China and until this particular occasion all reported that they had never won a case. Now, when I asked the same question, the lawyer responded that he had been successful in approximately 40 percent of his cases. I was astounded. But when I pressed for details, I found that this lawyer measured "success" in terms of sentence reduction; he had in fact never obtained an acquittal for a client.

I shall close this article with a brief discussion about the current deplorable plight of Chinese defense counsel. CIC, in the Lai case, assures the Federal Court of Canada that Lai would enjoy the right to counsel. The fact is that it would be very difficult to find counsel who would take this case, given the media crusade against him over a seven year period by the Chinese Government and the Chinese Communist Party. Indeed, Chinese lawyers are forbidden by "Justice" Bureau edicts to accept "sensitive" cases, without Bureau approval. And often this approval is withheld; the Bureau appoints its own defense counsel in place of counsel chosen by the accused.
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Second, any lawyer with the courage to take on the case would, judging by recent precedent, have his license to practice law suspended at best, and face imprisonment at worst. Some years ago, the Chinese government decreed that Falun Gong practitioners did not enjoy the right to defense counsel; it prohibited all Chinese lawyers from defending practitioners and it prohibited all Chinese "courts" from accepting lawsuits brought by practitioners. Over the last three years, scores of Chinese lawyers have been disbarred, imprisoned and tortured for bravely insisting on defending Falun Gong practitioners and political dissidents. Moreover, more than two hundred defense lawyers have been sentenced to prison terms under Article 306 of the Chinese Criminal Code.

Article 306 appears totally innocuous on its face. Essentially, it makes it a criminal offence for defense lawyers (though apparently not prosecutors) to suborn perjury or otherwise facilitate the introduction of false evidence to the "court." The problem is not with the wording, but with the way in which the "courts" have been instructed to interpret that wording. Defense lawyers run afoul of Article 306 in two ways, each of which leads directly to prison. Both involve those difficult clients who refuse to plead guilty.

The first involves an interesting "logical" analysis by the "court." The reasoning is: The accused says he did not commit the crime (perhaps offering an alibi); but the "court" has found him guilty (as is inevitably the case); therefore, by definition the accused was lying; since the accused was lying, it must have been his counsel who put him up to it. Hence counsel and client are sent off to prison hand in hand.

The second scenario is not entirely dissimilar. Under Chinese law, not only police practice, defense counsel may not meet with the accused until the police and prosecutors have completed their investigation. By this time the accused has confessed, normally encouraged by torture. Then when client and counsel eventually meet, client tells counsel a story which differs in material aspects from what he has told his police interrogators. But since defense counsel is given no access to the prosecution file, he will not know the details of his client’s confession. If he argues a theory which differs from what the prosecution has in its file, then the lawyer is found to be lying to the "court" and is sentenced to prison.

The second scenario occurs much less frequently than the first. This is because normal procedure requires a police officer to be present during all conversations between client and defense lawyer and the lawyer is forbidden to ask his client any particulars about the incident which resulted in the client’s arrest. He is restricted to explaining the section of the Criminal Code under which his client is charged, his client’s health and state of mind and presumably the weather. These restrictions conflict with provisions of the CPL, but unfortunately neither police, nor prosecutors nor "courts" normally evince any discernible interest in the subject of law.
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In future articles, I shall discuss the Rule of Law in China, the actual trial process (with examples drawn from my own cases), the political rationale underlying the court system, and the determined efforts by previous Canadian governments to "whitewash" the Chinese "judicial" system.

The article was previously published in Trial Lawyers Association of British Columbia’s quarterly journal, the Verdict, Issue 112, March 2007. Reprinted with permission.

Footnotes: 

1. This issue will be the subject of a future article. Suffice it to say here that the Chinese defense bar is a demoralized, intimidated, and threatened group. Defense lawyers are in practice, though not according to the provisions of the Chinese Code of Criminal Procedure ("CPL"), denied access to the prosecution’s file on their client. The case, though again this is forbidden by the CPL, is in practice usually prepared by the judges, prosecutors, and police acting in concert. There is no meaningful discovery of any sort. Defense counsel who insist too vigorously on their legal right to visit clients in the lockup frequently experience serious beatings at the hands of the police. And finally, many lawyers end a criminal trial by being sent to prison along with their clients, sentenced under a provision of the Criminal Code which applies exclusively to defense lawyers. We estimate that there are between two and three hundred defense lawyers now serving prison sentences for simply attempting to represent their clients as they are ethically bound to do. Moreover, at this very moment there is a full-scale campaign in China to intimidate and emasculate Chinese human rights lawyers. Lawyers Rights’ Watch Canada lists close to a hundred human rights lawyers and other human rights advocates who are now in prison, or who face "criminal" charges, or who have had their practice licenses illegally confiscated.

2. This bizarre event will also be the subject of a future article. Cohen did not give conflicting evidence on these two occasions. He is an eminent and highly respected scholar. Ms. Resnick and CIC apparently called him as a witness, not for what he would actually say, but for the weight his very presence would lend CIe. Cohen’s evidence largely supported Mr. Lai’s case that he could not receive a fair trial. But the IRB panel facilitated CIe’s strategy and, in its Reasons, set Cohen up against other defense witnesses, stating that they "preferred the evidence of Cohen" to that of Lai’s witnesses. That of course appears perfectly reasonable on its face, to anyone who reads the Reasons without having read the transcripts of evidence. The problem is that there is virtually no significant contradiction between the opinions of Lai’s expert witnesses and the opinion of Cohen, who was called by CIC against Lai. The result is a kind of sleight of hand which allowed CIC and the IRB to convey the impression that Cohen had given his "Certificate of Good Housekeeping" to the Chinese "judicial" system, which he most assuredly had not.
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3 Other fascinating open court observations by Ms. Resnick include the statement that the Chinese courts are independent because Article 126 of the Chinese Constitution says so. We would note that Articles 35 and 36 of that same Constitution guarantee Chinese citizens freedom of speech, freedom of assembly, and freedom of religion. The savage beatings by Chinese police of those who seek to exercise these constitutional freedoms have thus far apparently escaped Ms. Resnick’s notice.

5. In one very major case I handled in the Shanghai Maritime Court, the "judgment" was at least partially based on "evidence" in the form of an oral statement made to the "judges" by an engineer they had met by accident. The "judges" could remember neither the kind of engineer they had encountered, nor his name. And of course, he was not available at "trial." But they nevertheless incorporated his opinion into their Reasons.

On May 5, 2007, Xinhua, the Chinese communist official news agency, issued a statement accusing Voice of America of maliciously distorting the facts about Xinhua’s September 10, 2006, regulation, "Measures for Administering the Release of News and Information in China by Foreign News Agencies." In an article published on May 1, 2007, Voice of America reported on this regulation and commented, according to Xinhua, that the regulation "restricts foreign media’s development."

Here are some excepts from Xinhua’s May 5, 2007, rebuttal [1]: "A spokesman for the Foreign Information Administration Center of Xinhua today renounced the Voice of America, noting that a VOA report used ill intentions to distort the facts.

"The spokesman reiterated that while handling the business of releasing news and information in China, foreign news agencies are free from obstacles, as long as they abide by Chinese laws and regulations.

"He added that not a single case can prove that the legitimate interests of foreign news agencies have been damaged because of Xinhua’s administration. On the contrary, a host of facts have proven that following the implementation of the Measures, services provided by Xinhua in all areas have promoted the rapid development of the business of foreign news agencies in China, including Reuters and Bloomberg.

The spokesman said that the Measures do not cover news interviews conducted by foreign reporters in China."

Comments from Chinese Viewers at Xinhua

Xinhua has a comment section which its webmaster closely monitors and censors. He has the absolute authority to remove or delete any posted comments [2]. Those who post comments can easily be tracked down since their IP addresses display right next to their comments.

There are 13 comments on the comment page for the above Xinhua rebuttal. Here are some examples [3]. There are no pro-American comments.

2007-05-07 08:46:59 "Voice of America is a wolf in sheep’s clothing. We Chinese must watch out for this wolf!" IP： 125.90.89

2007-05-06 19:06:37 "Voice of America usually broadcasts comparative news between 6 pm and 7pm or after 10pm at night. Everyone, do not listen to it. If you do, you will definitely be poisoned, because it contains confusing comparisons." IP：219.137.143
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2007-05-06 10:54:45 "On issues related to our national interests, including the important issue of ideology, any Chinese with integrity must be unequivocally against any external malicious forces and opinions so as to safeguard our international status and image. All people of justice will oppose and repudiate any dark and evil forces that attempt to take Chinese people as their enemy. Their outwardly strong but inwardly weak countenance will be completely unmasked." IP：59.61.109

2007-05-05 16:08:43 "As known to all peace loving people in the whole world, "Voice of America" is a slander machine that is dedicated to fabricating lies against China. It has been slandering China for over half a century. Extremely disgusting!" IP：221.10.19

The latest statement from Voice of America: "We Report Truthfully" [4].

On May 11, 2007, VOA issued a reply in Chinese. Translated excerpts as follows:

"We reported this news event that occurred in China to our Chinese audience with fairness and objectivity.

"In doing so, Voice of America, not only reported messages from Xinhua but also provided summaries of reports on this event from U.S. media and international media, in our effort to provide balanced and complete reporting of responsible discussions and ideals from overseas, including reports from U.S. mainstream media such as The Washington Post and The Wall Street Journal, both of which are highly reputable in the international media community.

"What we now would like to explain to our Chinese audience is that western journalism emphasizes truthfulness—taking truth as the first fiber of life in journalism. Therefore, be it good news or bad news in China, we report truthfully."

VOA concluded its reply with Article 19 of the Universal Declaration of Human Rights, "Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers."

References:

[1] Xinhua, May 5, 2007 http://news.xinhuanet.com/politics/2007-05/05/content_6060006.htm
[2] See Xinhua rules on posting comments http://news.xinhuanet.com/newscenter/2006-06/13/content_4688542.htm
[3] Comments. http://comments.people.com.cn/bbs_new/filepool/htdoc/html/266f6de728258f0dfb0955b103ba35739ca39c6b/b4027090/l_4027090_1.html
[4] Voice of America, May 11, 2007. http://www.voanews.com/chinese/w2007-05-11-voa40.cfm

Joshua Li is a correspondent for Chinascope.

On April 27, 2007, at an appeal hearing at the Intermediate Court, Shijiazhuang, Hebei Province, China, six attorneys from Beijing presented oral argument on behalf of a family of three Falun Gong practitioners. The three Falun Gong practitioners had been tried and sentenced for "sabotaging the administration of law" by practicing Falun Gong. Attorneys representing the Falun Gong practitioners appealed the judgment and the sentence.

The case was unusual in that Falun Gong practitioners are prohibited from having legal representation.

According to the Falun Gong website Minghui.net, the hearing at the courtroom started at 8:30 a.m. and ended at approximately 1:40 p.m. Mr. Li Heping, an attorney from the Gao Bo Long Hua Law Firm made oral argument on behalf of the defense team representing the family.

The three family members, Wang Bo (daughter), Liu Shuqing (mother), and Wang Xinzhong (father) are Falun Gong practitioners. They were imprisoned at a forced labor camp for three years and finally reunited in 2005. On the evening of July 27, 2006, Wang Bo (a graduate of a conservatory) and her mother were arrested in Dalian City. The father was arrested the next day. They were tried on November 10, 2006, at the Shijiazhuang Changan District Court, where they were allowed no legal representation. On February 2, 2007, Wang Bo was sentenced to five years in prison; her mother and father each received a sentence of four years in prison.

Falun Gong is a traditional Chinese spiritual discipline that includes physical exercise and meditation, and is based on the principle of Truth, Compassion, and Tolerance. The Chinese communist regime banned the practice in July 1999 and launched a systematic persecution that is still going on today. The Chinese authorities had always prohibited attorneys from representing Falun Gong. Whenever an attorney took Falun Gong cases and pled "not guilty," his license was suspended. For example, Guo Guoting, an international maritime law attorney in Shanghai, represented Zhai Yanlai, a 26-year-old young man who was sentenced to five years on charges of being a Faun Gong practitioner. Guo was arrested and later exiled to Canada. Gao Zhisheng, a prominent Beijing attorney, who wrote open letters to Chinese communist leaders urging an end to the persecution of Falun Gong, was later arrested, tortured, sentenced to five years in prison, and is now under house arrest where he is kept virtually incommunicado.

For the first time, attorneys representing Falun Gong practitioners broke the government’s ban and presented a not-guilty argument in court. As reported by Minghui.net, at the April 27 hearing the defense team argued that the court erred in finding their clients guilty. The defense argued that the law that the trial court applied is not applicable to the case at hand. Further, the defense argued that the trial court judgment was made based on ambiguous facts, insufficient evidence, and procedural errors.
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Attorney Li reiterated that exercising the right of freedom of belief does not constitute a crime.

The presiding Judge, Liu Ping, asked if practicing Falun Gong is covered by the freedom of religion provisions of the law. Attorney Li answered, "Yes." In response, Judge Liu commented that Attorney Li had "a problem in ideology."

Yue Kunlun from the Shijiazhuang Intermediate Procurator Office introduced the evidence against the defendants. It consisted of a CD showing a prominent Chinese historian lecturing on Chinese history, the Great Wall, and the Yangtze River. No actual evidence against Falun Gong or against these three defendants was ever introduced.

When the family of Falun Gong practitioners read their statements, the court staff repeatedly interrupted them. Their statements revealed details about the police brutality inflicted upon them and about the lower court’s abuse of the justice system.

According to The Epoch Times, while the court hearing was going on, the court and the neighboring streets were heavily guarded. At times there were up to 600 policemen on the scene.

The hearing was open to anyone who obtained a pass the day before the hearing. Twenty-seven passes were issued. However, the day before the hearing, the police threatened and arrested some of those who had obtained a pass. Right before the hearing, a judge in the audience instructed the police to reduce the number of people who were in the audience. The police then dragged three Falun Gong women out of the courtroom and arrested them. Attorneys protested to the presiding judge, who ignored their protest.

It was reported that there were all together eight people in the audience who did not work for the government. The rest were judges, government officials, the police, and the government TV crew.

At the close of the hearing, Teng Biao, a prominent legal scholar and attorney representing the Falun Gong practitioners, was removed from the courtroom, kicked, beaten, and thrown into the street.

According to Radio Free Asia, the attorneys representing Wang Bo (daughter) are Li Heping and Li Xionbing from the Gao Bo Long Hua Law Firm. Teng Biao from the Hua Yi Law Firm and Hu Hongbin from the Hai Ming Law Firm represent Liu Shuqing (mother). Zhang Huili and Li Shunzhang from Guo Gang Law Firm represent Wang Xinzhong (father).

Xiao Tian is a correspondent for Chinascope. 

Most Chinese festivals are based on generations-old legends that are passed on. We still celebrate those festivals, not just for enjoyment, but more for the preservation of traditions and heritage.

The Duan Wu Festival (Dragon Boat Festival), which falls on the fifth day of the fifth lunar month is one of the most important festivals for Chinese besides the Chinese New Year and Mid-Autumn Festival.

Another name for Duan Wu is "Tien Zhong." Ancient people called the fifth month "the vicious month" or "the month of poison," as the weather got extremely hot and insects of all kinds bred rapidly and easily transmitted diseases. To counter such conditions they used "tien zhong wu rui," five plants known as calamus, Chinese mugwort, pomegranate blossoms, garlic, and the morning star lily for detoxification. The Dragon Boat Festival promoted a kind of hygiene observance in ancient times.

To commemorate the ancient poet Qu Yuan, some named it the "Poet Festival." It is also known as the "Calamus Festival," as every household will hang calamus to ward off evil. Another more well-known name is the "Dragon Boat Festival," named for the ritual of boat races that are held on the day.

That festival originated during the Warring States period in China over 2,000 years ago. There are quite a few versions of its origin.

(A) To commemorate the patriotic poet Qu Yuan

Qu Yuan was a resident of the Chu state during the warring period. According to the annals of Shi Ji, he was a minister for Emperor Huai. He served the nation whole-heartedly and advocated an alliance with other states to counter the Qin state, but was bad-mouthed and set up by Zi Lan’s gang of the aristocratic tribe. He was exiled to the region of Yuan and Xiang. During his exile, Qu Yuan composed some heart-felt and influential poems on the stability of the nation and the livelihood of the people. The Qin later conquered the Chu. Qu Yuan was heart-broken and despaired. With his last verse written on the fifth of May, he drowned himself by holding onto a big boulder in the Yu Luo River, demonstrating his patriotic heart with his own life.

The Chu people were saddened and all ran to the river to pay their respects to Qu Yuan. Fishermen tried to find his body but could not. In order not to let the fish eat the body, one of the fishermen threw the rice and eggs into the river that he had offered to Qu Yuan’s spirit. Others followed. A doctor poured strong wine into the river to toxicate all monsters and habitants of the river. Being afraid that a monster might eat the rice, people threw in rice wrapped in chinaberry leaves with colorful strings, which later symbolized the rice dumplings with which we celebrate the festival today.
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(B) To commemorate the dutiful daughter Cao E, of the Eastern Han dynasty

Cao E was a resident of Shang Yu from the Eastern Han dynasty. Her father drowned in a river but the body was nowhere to be found. Cao E was only 14. She cried all day and night along the river. Seventeen days had passed; it was the fifth of May. Cao E jumped into the river. Five days later she came up with her father’s body. This story became a legend.

The county officials ordered a stele to be made to record and praise her. People built a Cao E temple at the spot where she jumped into the river in memory of her virtuous duty. They renamed the village where she lived Cao E Village and the river in which her father drowned the Cao E River.

(C) Story origin from the ceremonial totem of the ancient Yue Tribe

Recent archaeological finds have unearthed earthenware along the middle to lower Chang Jiang stream. These pieces of pottery were decorated with geometric patterns, suggesting the existence of a cultural heritage dating from the New Stone Age. It was deduced that it was a site occupied by a tribe that worshipped the dragon totems, namely the historical Bai Yue tribe.

The Bai Yue tribe lived along the river. They saw themselves as the offspring of the dragon. They used a lot of chololithic tools made of stone and copper, the most unusual piece being the three-legged geometric-patterned earthen cooking vessel that was unique to the Bei Yue tribe. The tribe survived to the Qin and Han dynasties. Duan Wu was a festival they set up to pay their respects to their ancestors.

In the historic thousand years most of the Bai Yue people had assimilated into the Han tribe. The remainder became the southern minority groups. Since then, Duan Wu has become a festival for all Chinese.