China: Attorney Gao Zhicheng's Open Letter to the National People's Congress

On December 31, Beijing attorney Gao Zhicheng of Beijing's Chengzhi Law Office published a copy of the letter he sent to the National People's Congress. Mr. Gao addressed such questions as: Are Falun Gong practitioners treated as Chinese citizens? Should they be granted protection under the Chinese Constitution? Are they granted the rights of a Chinese citizen?

In his letter, Mr. Gao specifically stated, "Even until now, [imprisoned] Falun Gong practitioner Huang Wei's wife and child have not been granted visiting rights by the respective authorities. Their actions are in violation of established regulations. Moreover, these violations are committed by law enforcement staff, who should protect such rules. The law enforcement staff has established a precedent by which such regulations may be ignored. They do not consider enforcement and protection of such regulations their professional duty. Instead, they are bent on destroying the public official's code of conduct and are abusing the authority vested in them by breaching moral and procedural obligations. We wonder whose wishes are protected by such blatant disregard?"

The main points of the letter are excerpted below:

"Because of my position as an attorney, Falun Gong practitioners sentenced to jail and forced labour who have wanted to appeal have approached me, requesting my legal assistance. On December 26, another attorney and I travelled to Shijiazhuang City in Hebei Province to provide legal assistance to Huang Wei, a Falun Gong practitioner. He had been sentenced to forced labour. After I had researched the merits of Huang Wei's complaint, I contacted the relevant political and legal enforcement government officials. In the process, I discovered a legal quagmire in our country's legislative and judicial system, a situation that is untenable in today's modern society. As an attorney, a citizen, and a human being living today, I am extremely troubled and distressed by what I discovered.

"After frequent personal visits and consultations with the Shijazhuang City court and government authorities, I first thought to present the terrible and distressing situation to Mr. Wu Bangguo, Chairman of the Standing Committee of the National People's Congress. I sat down and worked diligently on this particular letter.

"In 2003 I prepared and sent three separate letters to the National People's Congress, requesting investigation of alleged constitutional violations concerning the "Urban Housing Demolition and Relocation Management Regulations," China's policy on housing rental, and related judicial rulings by the Supreme Court. The content of these regulations and policies is in clear violation of the Constitution of the People's Republic of China and the Law of the People's Republic of China. Once again, I received the same results as I did for these three letters: no response! After pondering deeply on the subject, I felt it best to submit my appeal in the form of an open letter.

"Mr. Huang Wei is a resident of Shijiazhuang City, Hebei Province. He was granted an associate degree. In 1999 Huang was sentenced to three years of forced labour. He was accused of 'using an evil cult organisation to harm the enforcement of state laws.' By the time he was released, half of his hair had turned grey and white. He was only 34 years old at that time. Wanting nothing more than a good life, Huang worked diligently and hard establishing a business. In time, Huang had re-established a good foundation for his business. Although his family was still poor, they were happy. Huang decided to forget about his past hard life and work diligently toward a respectable future.

"Then something unbelievable happened. On April 13, 2004, around 7:30 a.m., after Huang had sent his child to kindergarten and was ready to leave for work, four people whose identities were kept secret, arrested him and took him to the local State Security Office. There they did a body-search on Huang, confiscated all he had on him and with him, including his bike and some cash, and sent him to a detention centre. He was detained without a warrant or legal process. No one gave his or her name or identification number.

"Afterwards, an associated agency broke into Huang's home and ransacked it. After detaining Huang for 38 days, the police circumvented the lawful duration of forced detainment and transferred him to a temporary detention quarters. He was detained for another 15 days at that location. Huang was still kept in the dark about the reasons for his detention. Two police officers visited and interrogated him during the 15-day detention, recording the entire discussion. Again, no one provided identification. Huang asked for their work unit and names. They replied, 'We are interrogating you, you are not interrogating us.' Because the 'interrogation record' was different from the actual discussion, Huang refused to sign his name on the document. He could not believe his eyes when one of the two people, with no qualms at all, calmly signed 'Huang Wei' on the document and put his fingerprints next to the name. Huang thought about the 'interrogation record' afterwards and concluded that it was used as 'evidence' to sentence him to forced labour. On June 3, 2004, Huang was notified that he had been sentenced to three years of forced labour. The next day, he was transferred from the temporary detention quarters to a forced labour camp. After that, to appeal to the city government and be granted his lawful rights, which every citizen has under the Chinese Constitution and existing Chinese law, Huang had to go on a hunger strike several times. He was on hunger strikes for a total of 42 days. It is easy to see that Huang was treated miserably and one can understand that Huang was deeply anguished.

"On the morning of December 27, 2004, I went to the Shijiazhuang City Forced Labour Camp with one of my colleagues. We applied for legal visitation rights as Huang's attorneys. The Forced Labour Management staff told us that, whereas they could process regular visitation applications under existing law, they had no authority to grant applications related to cases of Falun Gong practitioners - only the 610 Office has such authority. As a result, we travelled back and forth between the 610 Office at the Forced Labour Management Office and the 610 Office at the Judiciary Bureau in ice-cold weather. In order to get visitation rights from officials in the two 610 Offices, we were on the road, including waiting time, for over three hours. After we finally were granted permission by the 610 Office, which was actually outside the law, it took the Forced Labour Management Office less than three minutes within the law to process and approve our application. (People at that office joked about the situation of 'three hours outside the law, and three minutes within the law.')

"During the afternoon of December 27, 2004, we two attorneys went the Shijiazhuang City Intermediate Court, submitted the relevant documentation, and filed the complaint -

Huang Wei's suit against the Shijiazhuang City Government for inaction, because the city government failed to respond to Huang's appeal. The court refused to place the case on the docket. At 8:30 a.m. the next day, December 28, 2004, we returned to the court and tried again to file the complaint. The court clerk refused again to put our case on the docket. A judge from the administrative court in the Shijiazhuang City Intermediate Court agreed to meet with us. He advised us to file the complaint in the Xinhua District Court.

"At 9:20 a.m. the same day, we arrived at the Xinhua District Court, where we met with a judge named Miao of the administrative court. After viewing the documents, the judge said, 'We are under orders from our superiors not to hear any case relating to Falun Gong. We cannot put the case on the docket and finalise the filing documentation.' After we explained the related existing laws and regulations to the judge, the judge told us that the 'orders' were from their superiors, and they were only following orders. The judge asked us to talk to judges at the pre-trial court. After viewing our materials, the two female staff members at the pre-trial court said emotionally, 'We have documents from our superiors that clearly state our direction: We do not accept any case relating to Falun Gong, and we do not follow pre-trial procedure.' We advised the two staff members that they should follow the country's laws when deciding whether to accept a case. Existing laws and regulations supersede any related 'documents' that were not based on a legal foundation. At that time, the younger staff member agitatedly told us, 'If you believe that existing laws supersede the documents from our superiors, then you should appeal to the National People's Congress to change the rules!' After she said that, a judge (the two staff members called him "court director") entered the room and told us, 'You are probably not Party members, so you probably have not studied the directions of the Party Member's Congress. Attorneys are not allowed to take these kinds of cases. Don't you know that? All courts belong to the Communist Party and the Communist Party also promulgates laws. If our superiors (the Communist Party) told us not to accept such cases, then we do not accept such cases. You may talk to anyone or appeal anywhere as you wish.' After that, we were given no further explanations.

"We enquired further. A judge told us to go to the Changan District Court. A judge of the administrative court met with us. While the judge looked through the documentation, we explained that the case was related to Falun Gong practitioners. Upon hearing that, the judge immediately returned the documentation to us and refused to accept the case, quoting the exact same aforementioned reasons. The judge also told us, 'You attorneys are doing something really dangerous. If you continue with your effort, we will write a judicial suggestion, asking that you receive punishment.' So far, efforts to file the complaint in three courts at two different levels in Shijiazhuang City have been a complete failure.

"While diligently trying to process the case concerning Huang Wei, I discovered a phenomenon that circumvents and undermines completely the dictum, 'rule the country by law,' which is espoused, upheld, advanced and implemented in all modern civilised systems. The most serious deadlock is within the judiciary field. Their intention to operate outside established laws makes one gasp in horror and puts one in despair. As an attorney and a Chinese citizen, I can no longer remain silent!

"Under the principles of existing laws, punishment of Falun Gong practitioners is completely against existing Chinese laws and the intent of 'ruling the country by law.'

"Specifically:

"1. Any country's criminal laws address concerns within a given scope, such as people, things and physical environment, and will be enacted and enforced in the time period during which these laws apply. In theory, enacted criminal laws by the People's Republic of China are no exception. One of the basic principles of criminal law is that these laws are not applicable retroactively. In other words, the laws do not apply to things that happened before they are enacted. On October 30, 1999, the National People's Congress passed 'The decision to ban evil cult organisations and to crackdown on evil cult activities.' ('The Decision') After that, punishment of Falun Gong practitioners was mostly based on their activities before 'The Decision' was approved. Huang Wei's case is such an example: he was sentenced to forced labour terms in November 1999. These cases (like Huang Wei's sentence) violated the basic principles of China's criminal law on an unprecedented scale over a long period of time. In other words, most Falun Gong practitioners (Chinese citizens) were imprisoned in violation of existing criminal laws.

"2. Criminal laws in all countries can only 'bear upon' (in China, it is 'attack') people's actions, not their minds or identities. The principle is based on observations of how such laws affect those in human society. Many Falun Gong practitioners were sentenced just because of their identity, and Huang's case is a good example. These actions are against the criminal law's intent. The aforementioned actions are the result of changing the intent of laws at will. Such actions produce immediate and long-term harm to the country and the principle of 'rule the society by law.'

"3. 'The Decision' did not define clearly 'evil cult organisations.' What are 'evil cult organisations?' What is the relationship of 'Falun Gong Organisations' to 'evil cult organisations?' What actions of Falun Gong practitioners and 'Falun Gong Organisations' falls in the category of 'crimes of evil cult?' None of the above questions were answered in 'The Decision,' which is ambiguous as it stands. As a result, during trials of Falun Gong practitioners, no precedent in law was available to which that sentence could be applied. Falun Gong practitioners were usually sentenced for 'using evil cult organisation to harm the enforcement of state laws.' Vital questions, including whether there is an evil cult organisation that could be used, whether the practitioners harmed the enforcement of laws, or how they have harmed the law's enforcement were not described in the sentence. The reason for Huang Wei's two sentences was no more than 'using evil cult organisation to harm the enforcement of state laws.' Under such application, actual and clear-cut punishment cannot be meted out, putting citizens in the middle of danger with no sense of security.

"4. In some geographic areas, Falun Gong practitioners' sentencing to forced labour terms at will is truly disturbing. As I write this letter, Ms. Du Wenli of Wuhan City, who just gave birth to a baby three months ago, wrote me a letter. In the letter, Ms. Du described in despair how her husband Ni Guobin had been detained for three years and recently released. Then, on July 13, 2004, some unknown people abducted him. Ten days later, he was sent back, on the verge of death. Later on, at the request of '110 Police,' Ms. Du learned that those who had abducted her husband were from the State Security Division. On December 3, Ni was abducted again, and his whereabouts remain unknown.

"Reasons for sentencing Falun Gong practitioners include 'refusing to change,' 'refusing to reform,' etc. In particular, the very existence of the forced labour system clearly violates Articles 5, 33, 37, and 38 of the Constitution; Article No. 10 of the 'Administrative Punishment Law of People's Republic of China' (Administrative rules can result in administrative punishment with the exception of restricting personal freedom); and Article No. 8 of the 'Legislative Law.'

"During trials and related sentencing, these citizens' personal freedoms are taken away for several years. The sentenced citizens are not given the opportunity to describe the situation, defend themselves, or call witnesses. As soon as the verdict to forced labour is handed down, the citizens are immediately whisked off to a forced labour camp. This is preposterous in a civilised society. After the citizens are held in labour camps, legal methods to rescue citizens are mere formalities. Huang Wei, after being sentenced to forced labour in 1999, was not allowed to defend himself. After he was in a forced labour camp a second time, Huang had to go on a hunger strike for several days at a time, at every step in the appealing process.

"Citizens, including the police, are fully aware that the forced labour system violates the Constitution, even the most basic laws, and is totally untenable in a modern society. China is paying an ever-greater price, given the present environment of anti-justice and anti-civilisation and as long as the forced system continues to exist.

"5. Tolerance and encouragement by the central and local governments in the form of rules and regulations addressing the aforementioned situation directly result in the deterioration of the moral character of those judiciary employees. In Huang Wei's case, the change of roles and moral deterioration of the judiciary workers has reached the point of total shamelessness. The fact that they don't think those actions are shameful is even more horrifying. In all civilised law systems, judges and court staff members are gatekeepers of lawful principles. Their morality is based in essence on their professional standards and professional integrity, as well as the effect of the civilised system, which keeps these people instinctively alert to anything that violates the principles of the law.

"The people I dealt with during our efforts to file a complaint on behalf of Huang Wei exhibited none of the behaviour such principles warrant. Just the opposite: They are still playing the role of 'gatekeeper,' except that they exhibit absolutely no sense of responsibility or morality towards the principles of the law and the spirit of 'rule the society by law.' They gang up like dogs on those who try to promote the principles of law. They have completely lost the respect and awe for the dignity of their career. Daily, their effort is geared towards implementing the country's authoritative system, which undermines justice and civilisation.

"When I was about to write this letter, people around me reminded me kindly: the issue of Falun Gong is a sensitive one, a political issue. As an attorney, I deeply understand the special social situation of our country. In a society where authoritative manoeuvres are normal, the existence of 'sensitive issues' is a joke. It shows the distortion, impropriety and lack of candidness of authoritative operations. Also, why are citizens not allowed to discuss political issues? Whose politics is it? Political issues that ordinary citizens are not allowed to talk about are absolutely invalid politics. When there is one voice left in a country, then what kind of situation has come about? During China's 'Cultural Revolution' and the current 'Federation of Evil' in North Korea, there is only one voice. Do we need that kind of situation in China?

"In recent years, our government has claimed to the international society that we are 'a big country that is willing to take on responsibility.' The most proper and valuable comments about that are from the country's own citizens. Yet citizens are horrified to talk about the problems of people in power, which clearly indicates that our country is far from 'a big country that is willing to take on responsibility.'

"I have no intention of 'waving the flag and shouting in support of' a group of people or 'being against the Party and government.' My deep love for my country is the only reason for my consternation. At the same time, trying to change Huang Wei's situation is only one of the purposes of this letter. From the beginning of human civilisation, regional cultures have been very different from each other. Yet without communicating with each other, people from different regions all adopted language and respected rules. In other words, respecting the authority of rules is the common and logical choice of all human civilisations. In the current world, countries that don't respect the authority of rules are all beleaguered by feudalism, backwardness, turbulence and savageness. The self-motivated enthusiasm of every citizen to seek stability is never less than those of people in power. An authoritative regime without rules that operates under the claim of 'Stability Takes Priority over Everything Else' is the source of most of the instability within society. In dealing with the Falun Gong issue, the government and judicial workers should first acknowledge Falun Gong practitioner's status as citizens. Judicial workers should also realise that they are representing the country and thus should follow the rules closely. If they don't follow the rules, whom are they representing? The judicial workers I saw refused to put the case on the docket, refused to follow any legal process, and did not allow attorneys to represent people.

"Huang Wei's wife and child have not been allowed to visit him. This alone is an open violation of existing regulations. Furthermore, the violations are committed by the law enforcement agencies and personnel, who should be upholding these rules. The law enforcement staff has established a precedent by which such regulations may be ignored. They do not consider enforcement and protection of such laws and regulations as their professional duty. Instead, they are bent on destroying the public official's code of conduct and are abusing the authority vested in them by breaching moral and procedural obligations. We wonder whose wishes are protected by such blatant disregard? It could only be the needs of uncivilised people, who are against modern society. Everyone should be extremely cautious about that."

December 31, 2004