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Watching the lawyer Chen Bulei argue his case, it was easy to forget that he was almost certain to lose. Pacing confidently before a packed courtroom in the northeastern Chinese city of Haicheng earlier this year, he scored rhetorical points so deftly that sympathetic onlookers pumped their fists like fans at a sporting event. Chen's client, a 56-year-old talc miner named Zhao Jitian, was on trial for "assembling a mob to disrupt social order"—a politically charged criminal offense often invoked to silence Chinese citizens who band together to air grievances against their employers or the government. Police in Haicheng had arrested Zhao five months earlier after he took part in a demonstration with about 100 other laid-off employees of the Aihai Talc Company to demand benefits they claim the firm had illegally withheld for nearly eight years. It is exceedingly rare for defendants charged with political crimes in China to escape conviction. But with Chen in his corner, brandishing a pocket-sized copy of China's criminal code as he punched hole after hole in the prosecution's charges, it seemed Zhao just might walk out of the courtroom a free man.
He did not. According to Chinese law, to convict Zhao the prosecutors would have to prove he had organized the protest and that it had caused substantial material harm. Chen argued compellingly that the prosecution's case rested on a report by an appraisal company that explicitly stated it had treated all the mining firm's claims as fact—instead of conducting an independent audit—and on an eyewitness account by someone who had been miles away from the scene of the protest. Chen also called a witness who testified under oath to having been coerced by police into signing an affidavit he had not read. But despite the presence of dozens of onlookers (including this TIME reporter), despite the rarity of a criminal trial in which witnesses are called and the defendant actually has a lawyer, two of the three presiding judges slept through Chen's closing argument. A few weeks later, Zhao was sentenced to three years in jail.
Chen was disappointed, but not surprised. Like a small but growing number of Chinese lawyers, he has made it a part of his career to argue cases he knows he probably won't win. Whether pleading the cases of criminal defendants pro bono or filing lawsuits against government agencies and other powerful entities, these lawyers—"rights defenders" as many now call themselves—share a belief that the law can be used to change the status quo. Though hardly a movement, they have become an increasingly significant force. In a country allergic to challenges to authority, they make noise about everything from illegal land seizures, pollution and sexual harassment, to the pricing of train tickets and discrimination against short people. Mostly, their work throws a harsh light on the chasm between China's law as it is written and the reality on the ground. But they may also prove instrumental in closing that chasm.
In a society haunted by decades of political turmoil and reeling from wild economic growth and rampant corruption, the concept of the law as a way to settle disputes or win justice remains a novelty. Still, over the past two decades, the law and the legal system have begun to take root. China's leaders, including President Hu Jintao, speak often of the importance of "administering the country according to law." The legal profession and legal education have mushroomed; China's government has enacted thousands of new laws; and major institutions like the legislatures and the courts have been strengthened and professionalized. But activist lawyers who try to take advantage of these developments still face enormous obstacles. Many courts simply refuse to take certain cases. "If the subject is sensitive or new, most judges will just decide they don't want the hassle," says Guo Jianmei, founder of the Peking University Center for Women's Law and Legal Services, one of China's first legal-aid NGOs. Even when they do take such cases, judges are often instructed how to rule by Communist Party-controlled supervisory organs called politics and law committees, or simply pressured by the local governments that pay their salaries.
In light of these hurdles, many lawyers rely heavily on the media to bolster their cases. At times, media scrutiny can pressure judges into ruling a certain way. It may also attract attention from more powerful government organs that pressure the institutions beneath them to comply with the law and settle out of court or even change laws and policies. In 2003, for example, a lawsuit by relatives of Sun Zhigang, a man beaten to death in police detention after being arrested for not carrying his ID card, provoked an intense public outcry, especially on Chinese Web sites. Three months after Sun's death, the State Council abolished the rules that had allowed police to detain the man in the first place. "The best lawyers have to be media savvy," says Phyllis Chang, an American expert on Chinese legal reform. "It's extremely rare for them to crack anything open without the media."
Of course, China's news media, which are still subject to Party control, are often unable to cover the most sensitive cases. One story that has been reported extensively in the foreign press but that has remained off limits to journalists in China is the case of Chen Guangcheng, a blind legal activist detained by police last year after he tried to help victims of a forced-abortion campaign sue their local government. Convicted in August of destroying property and "organizing a mob to block traffic," Chen was sentenced to four years in prison. A higher court ordered a retrial, but the conviction and sentence were upheld.
Among those rooting for Chen was Gao Zhisheng, a feisty lawyer who has represented underground Christians and members of the banned Falun Gong sect. Gao wore a "Free Chen Guangcheng" T shirt and spoke openly of his contempt for what he called "the gangster Communist Party" (even though he's a member). This fall, he was arrested on charges of inciting subversion. Arrests like these have sparked debate among lawyers about tactics. Teng Biao, a lecturer at the China University of Political Science and Law, says Gao's willingness to push the envelope has widened the space "for other more moderate lawyers to become more vocal." But Mo Shaoping, a veteran defense lawyer, says Gao's political activities—such as hunger striking and signing petitions—may have spooked the authorities into tightening restrictions. Like many in the field, Mo is both a philosophical and tactical gradualist. "If you want to cook a frog, you can't just throw it into boiling water," he says. "If you do that, it just flies out of the pot. You have to start with cold water and turn up the heat slowly." Despite their differences in approach, Mo quickly accepted a request by Gao's brother to serve as Gao's defense attorney. However, Mo says he has been denied access to his client on the premise that the case involves state secrets. Last week, he adds, the judges who will hear the case told him that Gao had refused representation: "I asked to see proof of this in writing, but they refused me."
Gao's arrest is just one example of the daunting obstacles these lawyers still face. Many say that as their visibility has increased, so have measures deployed to control them. Earlier this year the All China Lawyers Association, a national organization that attorneys are required to join, issued new guidelines stipulating that law firms should assign only "politically qualified" lawyers to handle cases involving joint litigation by 10 or more plaintiffs or issues related to safeguarding rights. Lawyers taking such cases were ordered to "accept supervision and guidance" or else be subject to punishment. According to a lawyer involved in the drafting of that document, "the original was intended to increase protection for lawyers, but then higher authorities intervened and made it do just the opposite." The authorities' strategy, says Nicholas Becquelin, Hong Kong representative of New York-based Human Rights Watch, is a "tightening of administrative controls over lawyers on the one hand and a crackdown on the most outspoken elements on the other hand."
Still, it's hard to find lawyers involved in public-interest work who aren't optimistic about the long term. They believe that even under the current system incremental progress toward the protection of rights is possible. "Sometimes I feel like I'm storming an impregnable fortress," says Guo, the women's advocate. "But we have had a few concrete victories." Last year, Guo and her colleagues successfully lobbied to eliminate a regulation forbidding female graduate students from becoming pregnant. "We can't change everything overnight," says scholar Teng Biao. "But even the leaders recognize they must reform the system if they want to resolve societal problems."
Chen Bulei believes there is room for China's leaders to be convinced that it serves their own long-term interests to safeguard the legal rights of people like the miner Zhao. Chen, a member of the Communist Party with a Ph.D. from a top law school, once worked as a policeman and later as a judge in a Beijing court. Both experiences, he says, strengthened his conviction that China needs more people who can "demonstrate to the leadership that the rule of law needs to be strengthened and that citizens' rights should expand." In the legal-theory classes that Chen teaches at the China Institute of Industrial Relations in Beijing, he requires his students to memorize and recite the United Nations Universal Declaration of Human Rights. "I call this forced enlightenment," he says. "If they can't memorize it, I tell them to read it out loud." One day, he hopes, such enlightenment will spread from the classroom to the courtroom.
- Susan Jakes / Haicheng
- A small but growing band of Chinese lawyers is pushing for reform in the country's courts. The political hurdles are huge, but their case is being heard