18 April 2015

Lawyer Zhang Xuezhong: Gao Yu's Conviction is "Perversion of the Law"

The following is a translation of a commentary produced by Shanghai-based lawyer Zhang Xuezhong in response to yesterday's conviction of the 71-year-old senior journalist, Gao Yu.



This morning (17 April 2015), the Beijing Number Three Intermediate People’s Court sentenced Ms Gao Yu to seven years’ imprisonment, with subsequent deprivation of political rights for one year, for the crime of “illegally providing state secrets abroad.” It is understood that the so-called “state secret” in this case is probably the CCP Central Committee’s Document No. 9, entitled “Communiqué on the Current State of the Ideological Sphere.” But in fact, Ms Gao’s actions did not constitute a crime and the Beijing court’s guilty verdict is a perversion of the law.

My reasoning is as follows, based on the provisions of the Criminal Law and the Law on the Guarding of State Secrets:
  
1. The documents of a political party should not be considered state secrets. A party member has no legal obligation to safeguard secrets (only an organizational obligation), let alone a citizen who is not a member of the political party.

Treating political party documents as state secrets under state law is obviously a mistake based on the failure to separate between party and state or on the substitution of the party for the state. Furthermore, the ruling political party in a state ought to, as much as possible, make public its political program, policy positions, and governing principles so that they may by subjected to criticism and oversight by the full citizenry, who are the source of the state’s sovereignty. If the ruling party treats these things as secrets, it will lead people to have doubts that the interests of the party and state might be opposed to each other.

Even if a political party treats some of its documents as secrets, only party members should be expected to bear the obligation to protect these secrets and this obligation should only be a matter of party discipline. If a party member violates this obligation, at most he or she should receive party disciplinary sanctions, not the sanction of state law. Citizens who are not members of the party should not be under any obligation to protect political party documents that have been designated secret.

2. The document in this case also does not fall under the category of “state secret” as defined in the Law on the Guarding of State Secrets.

According to Article 2 and Article 8(3) of the Law on the Guarding of State Secrets, secrets of political parties may be classified as state secrets if they have “vital bearing on state security and national interests and, as specified by legal procedure, are entrusted to a limited number of people for a given period of time.”

In light of the analysis in point 1 above, these provisions of the Law on the Guarding of State Secrets clearly violate the political principle of separation between political parties and the state. But even if one sets aside this point and the text of the provisions literally, the political party document in this case does not constitute a state secret.

First, as this is a legal provision, the phrase “state security and national interests” must refer to specific and identifable state security and national interests. In other words, it must be the case that any disclosure of the given information would lead to actual, recognizable, and measurable damage to national interests or worsening of state security. Disclosure of information producing some empty or abstract “impact” should absolutely not be treated as damage to national interests or state security as these ideas are specified under law. Otherwise, the result would be for the scope of state secrets to become boundless, and any citizen could potentially be punished unreasonably.

Second, the state secrets in these provisions must be “specified by legal procedure [and] entrusted to a limited number of people for a given period of time.” Here, “legal procedure” must involve a designated state organ carrying out a process of “specification” in accordance with national law. No political party or any of its institutions has the power to act on its own to specify party documents as state secrets.

Based on the reasoning above, I maintain that Ms Gao Yu’s actions should not constitute the crime of illegally providing state secrets abroad.

17 April 2015

16 April 2015

Lawyers Protest Assault against Female Lawyer at Beijing Courthouse

(Original text here. More information here.)

Statement by Chinese Lawyers Regarding
Assault on a Female Lawyer by Judges and Police Officers at the
Tongzhou District (Beijing) Court


On 2 April 2015, lawyer Cui Hui from Beijing’s Hengqing Law Firm went to the Tongzhou District Court in Beijing, where she was physically assaulted twice by Yang Yu and Lai Xiulin, both of the court’s enforcement division, and a court police officer. The assault left her with minor injuries, including contusions on both eyes, bruises on her face, and multiple soft-tissue injuries on her limbs. Lawyer Cui is understood to have previously reported unlawful behavior by judges in the Tongzhou Court’s enforcement division to the Tongzhou District Procuratorate in connection with a case she was handling. This angered the judges, who found many ways of making things difficult for Cui, including this recent violent assault against her inside the court.

As legal professionals, we are concerned about our colleague, Lawyer Cui Hui, and are extremely shocked and angered by the hideous acts committed by judges and court police at the Tongzhou District Court.

With respect to this incident, we are issuing this statement and making the following demands:

1. The Tongzhou District Precinct of the Beijing PSB should investigate this case thoroughly and launch a criminal investigation for intentional injury against Yang Yu, Lai Xiulin, and the court police officer and strictly punish the perpetrators in accordance with the law.

2. The Tongzhou Procuratorate and Beijing Municipality Procuratorate should investigate Yang Yu and Lai Xiulin for unlawful dereliction of duty and severely punish any such wrongdoing they may discover in order to remove any malignant tumors among the ranks of judges.

3. The Tongzhou District People’s Congress Standing Committee should monitor the Tongzhou District Court to ensure that it deals strictly with the court personnel involved in this incident, up to stripping the judges of their adjudication duties.

4. The Tongzhou District Judicial Administration Bureau, the Beijing Municipal Judicial Administration Bureau, the Tongzhou District Lawyers Association, and the All-China Lawyers Association should immediately initiate rights-defense procedures and unite with other lawyers to help Lawyer Cui defend her rights.

5. The Beijing Municipality Women’s Federation and the All-China Women’s Federation should pay attention to Cui Hui’s situation and assist her in defending her rights.




[Signatures of more than 130 lawyers]

12 April 2015

cc: Ministry of Justice
Beijing Municipality Judicial Administration Bureau
Tongzhou District Judicial Administration Bureau
Beijing Public Security Bureau
Tongzhou District Precinct, Beijing PSB
All-China Lawyers Association
Beijing Municipality Lawyers Association
Tongzhou District Lawyers Association
Beijing Municipality Procuratorate
Tongzhou District Procuratorate
All-China Women’s Federation
Beijing Municipality Women’s Federation
Tongzhou District People’s Congress Standing Committee