Foundation News and Article Release Issue: A21-C1
Release Date: July 14, 2003
Topic: Attorney Zhang SiZhi: "Notes from the Wei Jingsheng Case"
Original Language Version: Chinese
(English at beginning, Chinese version at the end)
Please visit our website if you have problem to read Chinese in this issue
In the spring of 1998, I was detained by the secret police in China,
a harrowing experience that I surely hoped would never happened to
me and will not happen to anyone. When my sister found out about it,
she went to the top lawyer who was well respected in our city, Hefei,
a metropolitan area of several hundred thousand inhabitants. She
did not know much of the reason for my detention besides my support
for the 1989 democracy movement in China and my involvement in
transferring a lot of humanitarian donations to the June 4 massacre
victims and families over the years. The lawyer was very sympathetic
to me and the 1989 movement, but told her that there is no way for
him to get involved, for "there is no way to defend yourself against
the Chinese government, and I do not want to get into trouble myself
Knowing that I could be charged with the crime of "damaging the
national security" with the prospect of anywhere from 3 years to
life or even the death penalty, I had the most horrifying days in my
life for refusing to cooperate, including signing a confession. I
have been "punished" ever since as promised by the Chinese government.
Knowing how tough it was, I would never blame the many who had to
sign the confessions, for I could only blame the Chinese Communists
for the brutality without humanitarian consideration. And I would
not blame most lawyers who would refuse the case, for the Chinese
government made their state power over the legal system.
So, when I read Attorney Zhang SiZhi's note about his defense for Wei
Jingsheng, I recalled my own case and found great respect for this man.
Nevertheless, I found out I have been living in a free world for so
long that I just could not write in the same fashion as he did; for
example, "in the city that suffered the huge earthquake 20 years ago"
(relative to the year of 1996) instead of a direct reference to
"Tang Shan". And I remember the beautiful yet sad poem that was
quoted by Zhang SiZhi in the middle of his note. It was written by
Lu You a millennium ago to describe the tragic separation of life
and death. Attorney Zhang quoted the end of one paragraph as "No!
No! No!" but not the end of the other paragraph in parallel:
"(It is) wrong! wrong! wrong!"
In 1998, I had a tough time to accept that I was facing the possibility
of a death penalty, so I have great admiration for those people who
faced it without surrendering themselves such as Wei Jingsheng. Nevertheless, Attorney Zhang surely won another layer of my admiration for his determination
to defend a person that is not defendable in Communist China. He
surely has won for these cases that surely would be lost. He struggled
his way for the rights of the human rights defenders. He represents
the conscience of the Chinese lawyers. On the way toward Chinese
democracy, they are the essential elements.
-- Ciping Huang
This editor recommends the following article to our readers, although its contents do not represent either Mr. WEI Jingsheng or the Wei Jingsheng Foundation's opinion or stand.
"Notes from the Wei Jingsheng Case"
-- Attorney with Conscience at the Court of the Communist Party
Note: In communist China anyone who defends a dissident must have intellectual
quality and courage. According one such lawyer in private, they do not fear a Mafia-type reprisal, but fear a systematic machine that disregards the spirit and procedure of the law.
A lawyer who defended June 4, 1989 dissidents expresses the opinion to reporters that older defense lawyers have weathered the political upheavals, so they have a different outlook. In short, they emphasize more the relationship of human dignity and the law.
Zhang Sizhi is an esteemed figure in Chinese law. He has defended the infamous "Gang of Four". He also defended Wei Jingsheng and Bao Tan. After this fiercely independent lawyer defended Bao Tan, the Justice Department revoked the license that he needs to practice law - his livelihood. Then, when a judiciary group planed to visit the USA, it was known that the Americans would ask about Zhang's license. Zhang was asked if the Americans do ask about his license, could they
reply that he has the license? Zhang insisted that they tell the truth. Otherwise he would issue a rebuttal. So Zhang's license was reinstated.
There is another irony. After Zhang's defense of Wei Jingsheng ended in conviction, the government wanted to honor Zhang with a commendation. Zhang refused.
Zhang is the Chair of the Beijing Law Consultancy, Vice-chair and Secretary General of the Beijing Bar Association, professor of the Chinese Politics and Law University, professor of Central Broadcasting University, Chief editor of "Chinese Lawyer" Journal, and Researcher of the Taiwan Legal Research Institute.
ZHANG SIZHI: "NOTES FROM THE WEI JINGSHENG CASE"
Rumor has it that Wei Jingsheng would again be indicted. There is no confirmation. Not sure if it involves politics.
Shortly after Wei's release, Mr. S, an old friend from the law consultancy, called that Wei wanted to appeal the injustice. I replied that Wei was on parole, not release. The reason for parole is to give an opportunity to repent. Appeal is a right. It is not too late to appeal after serving the sentence.
I don't know much about Wei - I only know about him on the Democracy Wall. I don't know why he did not take my advice. Unfortunately I anticipated what happened to Wei.
Foreign news reported that the former head of the French Department of Justice and others were forming a law group to come to China to defend Wei. It is pointless to assess the motive. As everyone knows there are matters that transcend international boundaries. Some don't. Even though these people are experts in their field, it is questionable whether they are permitted to practice law in China. It is just a publicity gesture. Their hypocrisy has hurt the feelings of the 80,000 Chinese lawyers.
Professor P called, conveying the sincere wish of Wei's family for me to defend him. At the same time, One of Wei's family members came to my residence with a woman friend. There was no way out. I stressed two points:
1. if the case has not been filed, lawyer can't get involved;
2. I need a younger lawyer, Mr. Li to work with me. His consent must be obtained immediately.
The next day they found out that the case was filed. We formalized the representation on December 7.
I had previously scheduled to fly to the Northeast on another case. That provoked some anxiety. I explained that when the court receives a representation authorization, it arranges to make the case files available and a meeting with the defendant, and then sets the date for the trial.
There should not be any 'action' with 8 days. Yet something unexpected occurred.
The afternoon of the 9th, while in Dalian I heard that Wei's case was scheduled in 3 days. After phoning Mr. Li, I got to Sheng Yang city airport as fast as I could, worrying about a case that we knew nothing of as yet.
I Called after I landed to find out the court date was the morning of the 13th. The court has instructed that before the court date we could not meet the defendant and the files would not be available. The next day, in conference, the court demanded:
1. no innocent plea;
2. complete black out.
The schedule can't be changed. The Wei family previously engaged attorney Q who had read the files and met with Wei. Now the change of lawyers made it hard for scheduling. The court can't be blamed for that.
I responded that it was hard for us to fulfill our duties and that I would persuade the family not to change lawyers, or the trial can proceed with no lawyer.
The Justice Department official said: it might not look good if Wei has no lawyer. That according to Attorney Q, Wei admitted most charges. So it might not take too much time. We need to consider the appearance.
My reaction was: what does it mean by "appearance"? Does it mean that it affects the image of the Chinese legal system? China is a sovereign state. No one can interfere with China's internal affairs.
I concluded that these decisions were set by higher up and could not be changed. So Mr. Li and I immediately went to the Intermediate Court in the western suburbs and accepted the case. The time was December 11, 11:45 am.
After a hasty lunch we went to meet Wei, accompanied by a Justice Department woman as "recorder". I urgently wanted to know the details of what charges Wei had admitted.
At 2:20 pm we met Wei, who, with a slight smile said that he had waited for us for 2 days. After he signed the representation authorization, Wei calmly, clearly and thoroughly denied item by item the charges in the indictment. All through this process, he was calm, had great grasp of the issues in depth. He left no doubt of his innocence. All charges in the indictment had no factual credibility.
We had no opportunity to read his files. So we advised him to be very careful in court testimony. I did not explain that article 103 in his indictment was a trap to punish him severely, fearing that would put too much pressure, making him nervous and tense. In less than 40 hours I realized that I underestimate my client! I should not have to worry.
Our meeting lasted less than 2 hours. Wei told us that he wrote a defense outline for Attorney Q for his advise. Wei hoped that we could have that outline as reference with his revision. The woman who accompanied us immediately called and requested the return of that outline.
At 4:15 pm our meeting was over. When we said goodbye, Wei said: I love to smoke. Please bring some cigarettes next time you come. There was a slight smile on his face. We were certain that we had built a strong bond between us, with some degree of trust.
I reached 3 conclusions at this meeting. Wei is an intellectual type person. He pursues the democratic ideal that every human longs for. For that he suffered inordinate punishment and sacrifices. He accepted his fate with equanimity, without caring of himself. This naturally gave me a good impression of him.
Leaving the prison we went to the courthouse. For "security" cases like this one, we had to rent a room to read the files. There was only about half a year between Wei's release and re-arrest. What we did not expect was that there were 12 files and 1900 plus pages - some in tiny characters.
We had only about 24 hours to read them. We also had another appointment to meet the officials in the Justice Department tomorrow (the 12th) before dinner. Even speed-reading could not do. We could only selectively read the major points. In the cold, heatless room, we just had to do the best we could.
At 5 pm the next day we asked to copy some of the important material. It was approved with quite high cost. However, we neglected to check the copies. Later we found that the important pages were not copied.
Some of the less important pages were copies several times to make up the thickness volume. It was already very late at night. We've learned another trick.
At 6 pm on the 12th we conferred with officials of the Justice Department on the next day's court procedure, not having completed the review of all the files. I was asked to present a summary of strategy. I replied that before complete review of the files, I couldn't make such a presentation.
The conversation focused on one point. The official insisted that there was no doubt about the charges. Why then do we need a defense? We asked if Wei's thoughts under detention could be considered Counter-Revolutionary? No response.
The president of the Bar Association opined: it is not permissible to use lawyers as the "second prosecutor"; and that "we must be responsible to history". I whole-heartedly agree. During dinner, I publicly declared: In court first thing I must constantly remember I am a lawyer.
Our problem focused on the instruction we received from the court: "do not plea innocent".
We had been running without pause for several days. Finally my partner and I had a few hours before we had to go to court.
First we discussed the discovery process. Then we reviewed the evidence sections. Then we formulated the defense strategy. Regrettably, the omissions on the copy made it difficult to review the whole picture.
That we could only remedy on appeal. At dawn we reported to the Justice Department and the court on our reparation and our difficulties. They also were under orders and pressure from their superiors. Hopefully there would be improvement in the future.
On the morning of December 13 it was snowing. As we approached the court, we saw a heavy presence of police. We must present our credentials before being let through. I'll never understand so much security just for one Wei Jingsheng.
There were about 24 seats for an audience in a small courtroom. About 20 people were present. Besides Wei's brother and sister, there were representatives from "related departments" who had double duty to "pay attention" and "monitor".
There was closed circuit TV where the important officials were watching from outside.
The trial started at 9am; there were very strict rules for the attendees: no talking and watching here and there. I did not know how this affected Wei who still had a relaxed smile. He appeared to be clam and truthful, even under sharp questioning. What surprised me was that he fully understood that the application of Article 103 was to sentence him to the death penalty. At one point he asked the prosecutor: just because of these things, are you planning to sentence me to death? There was no response. The smile remained on his face. The conviction was deemed "sufficient evidence, correct application of facts and correct application of law (charges)". That Wei's action stimulated sufficient seditious actions to overthrow the government".
Wei's defense arguments were eloquent and to the point. The request for defendant's witness was denied. The "clear and serious" 4 points were:
1. Since the sentence of 1979, Wei has not repented, insisting on his counter-revolutionary ideas.
2. Using "struggle for human rights" as an excuse to further a hidden agenda.
3. Published articles overseas, deliberately defamed the government, creating bad image for China.
4. Wei repeatedly committed the same crimes.
Not only did these points lack common sense, they lacked legality. Wei testified to his mental state during the parole period. He also testified to his promotion of democratic ideals, his hope of raising the cultural and social understanding. He thought that the error of the prosecution is to misinterpret the evidence and his actions.
His 10 points of defense:
1. There was no "action plan". Prosecution misinterprets the evidence.
2. Prosecution interpreted economic, social, and non-political activities as plans to overthrow the government.
3. To call labor organizing as plans to "overthrow the government" is laughable.
4. Compiling the victim list as a humanitarian act. It has nothing to with "overthrowing the government".
5. The bank account was to deposit funds for the benefit of the victims - no political motive.
6. Must accurately understand my motive. I have no illegal motive to overthrow the government.
7. Accusing Wang Dan and I of secretly "appealing to the US government to apply pressure" is not correct. To appeal for the withdrawal of the "Most Favored Nation" status was not my idea. That can be verified.
8. "Promoted Tibet as 'a sovereign nation' thus splitting the motherland" is not true. The purpose of my writing to Deng Xiaoping in 1992 on Tibet was to avoid the separation, exactly opposite to the charge.
9. Publishing articles overseas was officially approved. It was emphasized that there would be no interference. How can that be a "crime"?
10. The main point is that the prosecutor confused "democracy" and "overthrow of the government". The two terms were interchanged.
I am for democracy.
I presented the summation. Under this condition, the lawyer could not say what needed to be said. The only points we can argue were the facts, and that some of Wei's writings were quoted out of context to convict him.
Let's quote the judgment:
China's "culture (educated) class" numbers several millions. Adding to it their supporters would reach 100 millions. The defendant's writings manifest a tendency to erode faith in government rule". I just could not believe Wei's writings were childish ideas that can erode the rule of government. By then I realized that all the allegation could not stand for truth.
The court was interrupted for 40 some minutes because Wei got ill. Wei was convicted at 1:45pm that afternoon. There was no doubt that Wei was found guilty before the beginning of the trial. The verdict was set beforehand. Such a rush proved my suspicions that there was a direct order from the superior that it will be conducted and finished really quick, including any upcoming appeal.
Wei did not show any emotion on learning of the verdict. His brother and sister were more emotional. When he past his siblings, he nodded his head slightly. His sister was in tears.
To avoid the media and the suspicion of leaking "state secrets" we hid in a nameless hotel and continued to work for 50 some hours. This case was a world renown one. We were not able to make any difference. The Wei siblings thanked us and asked us to consider an appeal. We felt helpless and the futility of appeal. How could we solve the dilemma?
To such a case, I can not say (what in this one thousand year old ancient Chinese poem): "No! No! No!". Then, I would not worry to say "difficult! Difficult! Difficult!"
We knew that the overseas media clamored to interview us, the lawyers. We ignored requests for interviews. We did not do that to avoid "leaking State Secrets". Three days later the prosecution called a press conference for the overseas media. So there was no "secret" to leak.
What I worried was the media bias due to their own concept, ignorant of our culture and social conditions.
I was in the capital of the Southern province that first started the reform. I read the headline of December 16 "Dai Kung Bao". The title: "The Legal Basis of Wei Jingsheng's Conviction" - in big, red characters. It was a Q and A report of the prosecutor and the judge. I seldom read this paper, so I don't know their fairness in reporting. It was reported that the lawyers waited until the 10th to read files and meet Wei. The excuse was the Wei family changed lawyers and the family had unexplained reasons for the delay that resulted in insufficient time for preparing a defense.
There was an overseas reporter asking if there was sufficient time for defense preparation. I would like to respond: what do you think? But I did not have the luxury of facing the reporter.
At the meantime, there have been many concerns and support from friends, near and far, filled with sincerity and deep feeling. Besides from friends in San Jose and Taiwan, a 92-year old, a teacher and the mother of a close friend, called saying "people will remember your work". I cried. Another respectable law expert also at his 90's, held my hands and told me that I need to learn to protect myself. To receive such valuable trust and encouragement after 50 hours of hard work was so comforting.
It gave to my life a new excitement, reinforcing my professional integrity. The day after the first trial, the already typed court verdict was sent to Wei's hands. While he expressed his willingness to "appeal", he also demanded to meet with his attorney. On the next day, the clerk of the collegiate bench transmitted his request.
During our second meeting, he started to smokee from the beginning until we said good bye.
During our conversation, according to the standard procedure, I asked him about his opinion on the attorney's work. However, he didn't want to touch this subject but said: "this is expected, if it did not happen in this way, how it could end? However," Then he changed the topic. "According to my observation, when I was speaking, the public prosecutor was shocked.
He used what I wrote for attorney Q to deal with me, but he did not expect that I had made lots of changes." He slyly winked his eyes and said "so he missed his target."
He was a bit complacent, explaining that he does not care how the final verdict is going to be.
About appealing, we reached some common understandings at first: even if it is just a standard procedure, we have to be serious, conscientiously exercising every right that the law entrusts. Put out the evidence; make the truth clear. I have proposed two suggestions for him.
One was to insist to call the witnesses to the court, especially those who had a direct importance with details of the case. Another one is, though the second trial will not take place, it can't erase the defendant's essential right to give a statement. In addition, before exercising this right, it is important to listen and understand prosecutor's accusation.
According to the material that was seen later, he adopted these suggestions. Before we separated, I explained to him that in order to avoid the media, I will be leaving Beijing for a while, but will be back for the second trial.
I got back to Beijing at dusk on December 23rd, ahead of time according to legal appeal time limits. Soon, two judges for the second trail came and asked me earnestly and repeatedly to see the court presiding judge as soon as possible. So I asked whether he would open the court for the trial. He answered that "I can not speak about it, it seems that it may not be fixed yet." Now I understood it was just a show, the lawyer must be kept away from the decision. It was very clear in fact, that there will be no second trial at all. Who will agree to give again one more chance for Wei to express his opinion?
Late at night, I met with all participants of the second trial. The presiding judge went straight forward; she said the timing is too tight, and hoped to receive my cooperation. She frankly delivered the bottom line; there will be no court session for the second trial. Therefore hoped to receive the lawyer's written defense text on the 27th. She used a very serious tongue to tell me that she would consider earnestly a lawyer's opinion. I agreed to give to her a draft by the 27th, and the formal text right after.
I met with Wei on the afternoon of the 25th for the third time and explained to him what he should expect. I finished the defending text over night on the 26th according to the request, and delivered it on the 27th.
As I delivered the final text, I received at the same time the notice of verdict for the next day at 9 am. "This is the real plan". I should expect that. However, I understood that as I pictured, the trial will conclude before the end of the year. The case is under the second instance, all the texts are at the court, but the judgment will not be made by the second instance. Having no approval from the authority at the highest level, who can make the Wei case? Who dares to make the Wei case?
Afterward, I learned that Wei's final statement was delivered to the court on the 27th too, and can only be there waiting quietly for history to inspect. A person who is taking the safeguarding of human rights as his own duty, could not even protect his own legal rights. Is it an irony or tragedy?
The statement made during the second instance had only taken about ten minutes. The judge read out the already drawn up verdict. The judgment remains. Wei is still that calm. The only difference with the previous hearing is: he seemed eagerly to see his family members this time!
After the final verdict, at the office of attorney Li, I discussed with Wei's brother and sister about the issue of "appeal". We concluded that it is the right thing to do. As far as how to do it, Wei's opinion shall be listened to.
January 3rd, 1996, we met for the fourth time with Wei Jingsheng. Regarding the appeal, it appeared that he had planed it, he asked us to take full charge of it.
During the conversation, I also discussed with him about the future 14 prison years. I don't doubt any more that this case contains densely political factors. He might be a kind of political bargaining chip.
Because of this fact, I have asked him if it is possible one day he will be forced to leave the country as Wang Juntao was? He did not answer the question directly, but rather told a story. "After June 4, 1989, the government expressly abdicated a way to let a professor find shelter in the American embassy, and then settled the condition and let him leave to the US. I do not praise the attitude and method that he took. The worst that can happen is to lose one's head; someone who organizes pro-democratic movements needn't afraid of it. We lost a flagship due to this exit."
I appreciate the point of his story. I asked him further, "if your health condition worsens, and a possibility for out side treatment exists, would you consider it"? Wei answered, "This kind of situation is a little complicated; I can only act according to circumstances. I know once I leave, it would be difficult to come back"!
At that time, we could not know that at the supreme level of the leadership, someone had said "some think Wei's level is high and wants him to go out, but we just don't"!
July 11th, 1996, the appeal from Wei's brother and sister was rejected by the Beijing High Court. The fate of Wei's ownn appeal could be expected to be parallel.
This spring, Wei's family members sent me an article, with a very striking topic: it is "I, Wei Jingsheng, an exhibition of China, Japan and S. Korea fine arts". It was authored by Huang Yue, and published in Hong Kong's "1990's" in February 1996. This exhibition is one of Wei's crimes, though it is totally irrelevant, and such a conviction would be the first in the history.
In Huang's article, several sentences show the truth. "At the end of 1993, a Tokyo based gallery organized the "Star 15 Years" exhibition. The organizer was a friend to me and other Chinese artists. At the end of 94, I went back to Beijing with the original plan. I contacted Wei because I know he wants to do something in the Art world. And, I want him to be involved in the Arts in order to escape from political risks. He liked it, and told me do not use his name until the opening of the exhibition. Wei drafted the Chinese version for the purpose of the exhibition and did not get involved since.
In March, I had lost contact with him; one day however, he called me from a hotel to tell me to continue with the exhibition, although there were police around him".
This is the story about the exhibition, the alleged crime. After having read Huang's article, everything is lucid. Where is the crime?
Due to our inability to investigate, we failed to bring the full and accurate materials in court, thus were unable to make the case against the persecutor's false accusation. This is unpardonable. To summarizing the lesson, during a trial, it is essential to give the defendant's attorney abundant time. Now that Wei's trial is over, my job as the attorney ends too, and he is at a labor camp in the city that suffered the huge earthquake 20 years ago, where the quiet patch of life appears different than his personal character.
I am not a scholar, I am not a historian, I just want to be a qualified lawyer. I must practice according to the noble quotation by Hu ShiZhi: "To keep the right, to correct the wrong. To defend the wrongfully accused. To expose the faked and untruthful." Although the affair has ended, yet more time to discuss it will come, so this is only the first part.
August 1, 1996
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