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Lawyers Facing License Revocation Detail Irregular Courtroom Activities Permitted by Judge

April 20, 2010

On Thursday, April 22, 2010, the Beijing Municipal Bureau of Justice will decide in an administrative hearing whether it will revoke the licenses of two Beijing lawyers, Tang Jitian (唐吉田) and Liu Wei (刘巍), for “disrupting courtroom order and interfering with the regular litigation process.” The action resulted from a complaint filed with the Beijing Municipal Bureau of Justice by the Luzhou Municipal Intermediate People’s Court (泸州市中级人民法院) of Sichuan Province, where the two lawyers represented a Falun Gong practitioner in a second instance trial nearly a year ago, on April 27, 2009. The Bureau of Justice, in an April 12, 2010 notice to Tang and Liu separately, charged the lawyers with violating Article 49(6) of the Law of the People’s Republic of China on Lawyers, which stipulates that in serious cases of “disrupting the order of a court or arbitration tribunal, or interfering with the normal conduct of litigation or arbitration activities,” a lawyer’s license may be revoked.

The lawyers refute the court’s allegation. Liu Wei, one of the two lawyers, told Human Rights in China (HRIC) that during the April 2009 trial of the Falun Gong practitioner, while members of the public who were listening to the trial outside the window of the courtroom occasionally yelled “Injustice!” in support of the defendant, Liu and Tang did nothing that could be construed as disrupting the court proceedings. Liu said that, in fact, the presiding judge, Li Xudong (李旭东), interrupted her and Tang repeatedly and pounded the gavel loudly during their defense statements, seemingly on cue from a middle-aged man sitting in the front row of the courtroom who would cough and blink at the judge periodically.

In a recent statement released by Tang and Liu, which they intend to submit at the upcoming Beijing Municipal Bureau of Justice hearing (see below for English translation by HRIC), they say that on the morning of the trial of April 27, 2009, before the trial began, the judge asked the lawyers to comply with an order from personnel who refused to identify themselves that everyone must leave the courtroom to go through further security procedures. The lawyers stated that once they left the courtroom, they saw more unidentified personnel videotaping them and members of the public.

According to the statement, the lawyers were interrupted more than ten times by the judge when they were presenting their oral arguments, and the judge similarly interrupted the defendant during his self-defense statement. The lawyers stated that when they felt they could no longer continue to present the defense statement due to the repeated interruptions, they handed in the written defense statement and left the courtroom.

Jiang Tianyong (江天勇), a well-known Beijing rights defense lawyer, told HRIC that the action against Tang and Liu represented “a higher level of crackdown on rights defense lawyers than the Beijing Municipal Bureau of Justice’s refusal to renew the licenses of many lawyers, including Tang and Liu, in May 2009.”

In addition, Jiang said, “Revocation of a lawyer’s license ordinarily occurs only after a lawyer has been tried and convicted of intentional criminal activities.” Jiang feels that in revoking lawyers’ licenses in an administrative hearing, without judicial process, the Beijing Municipal Bureau of Justice is posing “an extreme threat to the remaining rights defense lawyers.”

He pointed out that the Measures for the Penalty of Unlawful Activities by Lawyers and Law Firms recently promulgated by the Ministry of Justice, which will take effect on June 1, 2010, basically allow the authorities to cast any action taken by a lawyer in the course of his or her practice – such as advising a client to petition to the authorities – as evidence of incitement and inducement (煽动教唆) to commit acts viewed as unlawful by the authorities.

Jiang sees an ominous trend. “The lawyers’ system in China is either becoming a tool of the authorities or heading toward death,” he said.

Sharon Hom, executive director of HRIC, said, “Instead of the progressive strangulation of rights defense work, the Chinese authorities need to demonstrate their commitment to respect the professionalism and independence of the legal profession, a critical requirement for a true rule of law.”

HRIC urges that Beijing Municipal Bureau of Justice conduct an impartial investigation into the Luzhou court’s allegation and resolve the case in strict compliance with relevant Chinese law and regulations and international standards for fair and effective legal process.  

Draft Statement by Tang Jitian and Liu Wei
for the Beijing Municipal Bureau of Justice Administrative Hearing, April 22, 2010
[English Translation by Human Rights in China]

Our Response to the Beijing Municipal Bureau of Justice’s
Revocation of Our Lawyer’s Licenses as a Penalty1

On April 12, 2010, we received a “Notice of a Party’s Right to Hearing of a Judicial Administrative Organ Administrative Penalty Case” from the Beijing Municipal Bureau of Justice. This penalty case concerns a criminal trial at the Luzhou Municipal Intermediate People’s Court [of Sichuan Province] on April 27, 2009. The presiding judge was Li Xudong; the defendant was Yang Ming, who was charged with “using heretical organizations to undermine implementation of the law.” The defense counsel were Liu Wei (of Beijing Shunhe Law Firm) and Tang Jitian (of Beijing Anhui Law Firm). The content of the penalty [notice] was: “You disrupted the order of the court and interfered with the regular litigation process. According to the stipulations of Article 49, paragraph 1, item 6 of the Law of the People’s Republic of China on Lawyers, we plan to revoke your lawyer’s licenses as administrative punishment.”

We believe that the Luzhou Municipal Intermediate People’s Court absolutely did not try the case according to the stipulated procedures in the Court Rules of the People’s Courts of the People’s Republic of China. On that day, it was very chaotic both inside and outside the courtroom; the judges were slow to enter the courtroom; the presiding judge did not stop those observing the trial in the courtroom from recording [the procedures]; and furthermore the presiding judge interrupted defense counsel’s statements over ten times, to the extent that counsel was unable to defend their client as per custom; the defendant’s procedural rights suffered grave violations.

At 9:30 a.m. on April 27, 2009, the second instance trial of Yang Ming, who was suspected of “using heretical organizations to undermine implementation of the law,” was heard at the Luzhou Municipal Intermediate People’s Court. At 9:30 a.m. sharp, around 50-60 observers sat in the public gallery, and dozens more stood outside the windows to observe as seating was limited. The two defense counsel took their seats promptly at the defense bench to prepare for the start of the trial, but for a long time they did not see the presiding judge enter the courtroom. Fifteen minutes later, several unidentified individuals entered the courtroom and demanded without giving any reasons that all observers leave the courtroom to undergo security inspection. The observers, questioning whether these individuals were court personnel, requested that they show their employee ID cards. But they refused. At the same time, these several unidentified individuals also sharply demanded that the two defense counsel leave the courtroom, without giving any reason and refusing the counsel’s request that they show their work IDs, even flying into a rage and yelling at the counsel. Because of the illegal actions of these unidentified individuals, not promptly stopped by the presiding judge and bailiffs, the courtroom became the turf of these unidentified men, where they could threaten the counsel and drive out the trial observers as they pleased, without giving any reason.

Afterwards, Presiding Judge Li Xudong brought several bailiffs before the defense counsel, demanding the defense counsel cooperate with the arrangements of these unidentified individuals. Li Xudong also refused to identify these individuals and refused to provide a reason for the request that the defense counsel leave the courtroom. After leaving the courtroom, the defense counsel discovered several people in the corner of the staircase and on the floor above secretly filming them and filming the observers. This secret filming in the court is prohibited, but the bailiffs and judges ignored the activity.

During the trial, when defense counsel were speaking, an unidentified young man sitting in the public gallery got up and moved around the courtroom many times, and pointed a camera at the defense counsel and started filming. His attitude was disrespectful and preposterous, even provocative. The two defense counsel asked the presiding judge to explain this illegal behavior and asked that he stop the young man from filming, but the presiding judge gave no response whatsoever. Article 9, paragraph 1 of the Court Rules of the People’s Courts of the People’s Republic of China stipulates: “Observers must observe the following disciplines: Must not make audio or visual recordings or take photographs.” The presiding judge did not stop these clear violations of court rules, and allowed them to take place.

The presiding judge interrupted counsel’s statement and the defendant’s self-defense and final statements more than ten times throughout the trial, so that the defense was extremely difficult to carry out. We were not permitted to question the evidence, analyze what constituted the crime, analyze the nature of the defendant’s actions, analyze the applicability of the law.... We were only permitted to audit the amount of evidence submitted by the procuratorate, and the defendant was only permitted to answer “yes” or “no.” Article 36 of the Law of the People’s Republic of China on Lawyers stipulates: “Where a lawyer serves as legal counsel or defender, his right to debate or defense shall be protected according to the law.” Article 37 stipulates: “The personal rights of a lawyer during the course of his practice shall not be infringed upon. The representation or defense opinions that a lawyer presents during a hearing shall be immune from legal prosecution, except in cases where such speech endangers state security, maliciously slanders others, or seriously disrupts the order of the court.”

The presiding judge attempted to reduce defense counsel’s time to speak; the beating of his gavel was deafening. Having been interrupted several times, the defense counsel continued to speak, in order to protect the rights of the defendant and uphold the justice of the law. At the time that counsel was to finish speaking, the presiding judge again interrupted the defense counsel and lashed out at them. In order to protect the defense counsel’s right to speak, uphold the authority of the law, and show the judges that the law does not permit this kind of abuse, the defense counsel chose to leave the court peacefully and presented their defense opinion in writing as they left the court.

As an organ with public power, the Luzhou Municipal Intermediate People’s Court should examine its own unlawful acts. But the court has not only not corrected its actions, it has also issued a complaint against the lawyers to the Beijing Municipal Bureau of Justice in contradiction of the facts. This was clearly a retaliatory attack against the lawyers.

To summarize, we make the following conclusions of our actions in court:

  1. According to the law, we as professional lawyers did not cooperate with the arrangement of the unidentified men to leave the court out of respect for the law and respect for an independent trial by court (Article 2, Court Rules of the People’s Courts of the People’s Republic of China).
  2. We as professional lawyers asked that the judge stop observers from making audio and video recordings in order to uphold the order of the court (Article 9, Court Rules of the People’s Courts of the People’s Republic of China).
  3. Our right as professional lawyers to speak in court is protected by law (Article 36, Law of the People’s Republic of China on Lawyers).
  4. The presiding judge seriously infringed upon the lawyers’ right to defend, and lawyers have the right to leave the court in order to show the court’s violation of the law (Article 36, Law of the People’s Republic of China on Lawyers).

The Beijing Municipal Bureau of Justice believes that we have “disrupted the order of the court and interfered with the regular litigation process; the circumstances were severe.” This has no legal basis. According to Article 12 of the Court Rules of the People’s Courts of the People’s Republic of China, actions that “seriously disrupt the order of the court” include: “making a lot of noise or assaulting the courtroom, insulting, slandering, threatening, or striking judges.” We clearly have not done any of the above-listed actions. Therefore the decision to “plan to revoke our lawyer’s licenses” made by the Beijing Municipal Bureau of Justice is obviously factually unsound and lacks legal basis.

 

To:
Beijing Municipal Bureau of Justice

Respondents: Tang Jitian, Liu Wei
April 22, 2010

1. Translator’s note: This version incorporates changes the lawyers directed to HRIC on April 20, 2010. ^


For more information on Tang Jitian and Liu Wei, see: