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发表于 2004-12-31 12:35:01
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In China, Turning the Law Into the People's Protector
By Philip P. Pan
Washington Post Foreign Service
Tuesday, December 28, 2004; Page A01
FUYANG, China -- Attorney Pu Zhiqiang sat with the two authors on trial, listening intently and taking notes, his broad shoulders hunched over a small table. Facing him on the other side of the courtroom, Zhang Xide, a short, slightly pudgy Communist Party boss, leaned back and smiled as the first witness took the stand.
Zhang had sued the authors for defamation, accusing them of libeling him in a best-selling book on rural China that portrayed him as a local tyrant. In a country where the courts are controlled by the party, he held the upper hand.
But then Pu, 39, a tall, brawny man with a crew cut, began grilling the witness, an official who had worked for Zhang, and accused him of extracting illegal taxes from peasants, embezzling public funds and killing a man while driving drunk.
"How did you get away with it?" he asked, prompting laughter from the gallery. The witness protested angrily, then refused to answer questions. But Pu pressed on: "You obey the leadership of Secretary Zhang, so aren't your problems Secretary Zhang's problems? Shouldn't he be responsible for you?"
By the time he finished his cross-examination, the mood in the courtroom had begun to change. When the trial ended three days later, the authors remained at the defendants' table, but it seemed as if Zhang -- and the Communist Party itself -- were the ones on trial.
What happened in the Fuyang case highlights a momentous struggle underway in China between a ruling party that sees the law as an instrument of control and a society that increasingly believes it should be used for something else: a check on the power of government officials and a guardian of individual rights. How this conflict unfolds could transform the country's authoritarian political system.
More than a quarter-century after launching economic reforms while continuing to restrict political freedom, the Chinese Communist Party remains in firm control of the courts. Most judges are party members, appointed by party leaders and required to carry out party orders. But the government's claims of support for legal reform and human rights, and an influx of information about Western legal concepts, have fueled public demands for a more independent judiciary.
China's citizens are asserting their rights and going to court in record numbers. About 4.4 million civil cases were filed in the last year, more than double the total a decade ago. Behind this surge in legal activity is a belief that everyone, even party officials, can be held accountable under the law, a belief promoted by a new generation of lawyers, judges and legal scholars trained after the death of Communist Party Chairman Mao Zedong.
The party appears torn by this rising legal consciousness. It recognizes the value of an impartial judicial system to resolve disputes in a country with growing social tensions and an emerging capitalist economy, and it sees the potential of citizen lawsuits to curb corruption and improve governance. But it is also afraid that rule of law and independent courts might threaten its monopoly on power.
A rare chance to sit in a Chinese courtroom unnoticed by the authorities and observe a four-day civil trial in August offered a glimpse into a society's struggle to establish rule of law, and the stark dilemma that presents to the party.
Pu's aggressive defense tactics left the court with a difficult choice. It could ignore the evidence he presented in open court about Zhang's transgressions and rule against the authors, risking a backlash that could further erode the party's legitimacy. Or it could reject Zhang's lawsuit and send a powerful message to the public about the law as a weapon against the party.
Four months after the close of the trial, the court has yet to issue a verdict.
A Free Speech Lawyer
Growing up in rural eastern China, and studying history and classical Chinese literature in university, Pu Zhiqiang had always planned to be a teacher. But he joined the 1989 pro-democracy demonstrations in Tiananmen Square while in graduate school, and in the crackdown that followed, the party barred him from academia.
He drifted for years, working as a secretary, a salesman, even at an agricultural market. But in 1993, a friend suggested he try a career in law. He studied on his own and passed the bar in 1995.
Mao all but dismantled China's legal system during the Cultural Revolution, but after his death in 1976, the party reopened its courts and adopted new laws to promote economic reforms. Demand for legal services grew rapidly, and hundreds of law schools and the first private law firms opened. By the mid-1990s, lawyers were shedding their traditional role in China as civil servants loyal to the state and beginning to see themselves as independent advocates devoted to their clients.
Pu, a gregarious man who speaks in both street profanities and classical Chinese, prospered by helping companies declare bankruptcy and settle business disputes. He also learned how corrupt China's legal system could be. "It was much worse than I imagined," he said.
And yet Pu believed that a good lawyer who took the right cases could change China. In 2003, he agreed to defend a literary critic who had been sued for defamation by one of China's most famous authors. He built his case on one of the principles he had fought for in Tiananmen: free speech.
While preparing for trial, Pu read about New York Times v. Sullivan, the landmark Supreme Court decision on freedom of the press, and used it in his closing argument. The judge handed him a victory.
Over the next year, Pu took on four more defamation cases, defending two magazines, a newspaper and a scholar against lawsuits filed by companies and business tycoons. In a nation where censorship is standard and criticizing the party can lead to prison, he had become China's version of a First Amendment lawyer.
In February, Pu heard about a defamation suit in Fuyang, an urban backwater in the eastern province of Anhui, about 575 miles south of Beijing. A local party official had sued the husband-and-wife authors of "An Investigation of China's Peasantry," a literary exploration of poverty and the abuse of power in rural China.
"I read the book carefully, and it made me furious," Pu recalled. The stories reminded him of his own experiences in the countryside; only a decade earlier, officials enforcing the government's one-child policy had forced his sister-in-law to abort a pregnancy in the ninth month.
The authors already had an attorney, but Pu contacted them and offered his services for free. He proposed turning the case into China's version of New York Times v. Sullivan and argued that society would be better served if the courts protected the public's right to criticize party officials.
Pu said he didn't expect to win. Local party officials control local courts. In Fuyang, Zhang held a top post, and his son was a judge. But if the case attracted enough attention, a sympathetic official elsewhere might stand up for the authors on appeal, or the leadership might decide that letting Zhang win would hurt the party's image too much.
The authors, Chen Guidi and Wu Chuntao, added Pu to their defense team soon after the party banned their book. "We knew we needed a cannon," Wu said.
'The Weapon of the Law'
The trial opened Aug. 24 in a wood-paneled room on the first floor of the Fuyang courthouse. The authors and a team of four lawyers sat on the right, Zhang and his attorneys on the left. Three judges in black robes presided from a bench under the red-and-gold emblem of the People's Republic of China.
About 100 people sat in the gallery, and more than a dozen police officers stood guard. A handful of Chinese reporters were present, though they knew their stories would be censored. Hundreds of peasants from Linquan County, where Zhang had served as party chief, were waiting outside. There were plenty of empty seats inside, but the court let only 25 peasants in.
Zhang's lead attorney spoke first, accusing the authors of fabricating material in the book's third chapter, which described events in Linquan between 1992 and 1995.
The attorney's objections included the book's description of Zhang as an official who spoke like "an uncouth lout" and was "short of stature," and its claim that he ignored Beijing's orders to reduce taxes and violently punished villagers who protested.
"As a senior party member and a qualified cadre who has made no mistakes . . . Zhang Xide is using the weapon of the law to demand justice," the attorney said. He said Zhang wanted an apology and damages of 200,000 yuan, or about $24,000.
The defense responded forcefully. "If a party secretary can't take criticism without considering it defamation, I suggest he quit and go home," declared Lei Yanping, the authors' local attorney.
Lawyer Pu Zhiqiang, center, and client Chen Guidi, at right, brief peasants outside the courthouse about libel trial's progress. (Special To The Washington Post)
Pu, in a gray shirt and silver tie, spoke next, arguing that his clients' portrayal of Zhang was based on interviews as well as party reports they had obtained. He also noted that their book was a work of "reportage literature," a popular Chinese genre in which writers sometimes embellish facts for literary effect.
But when Pu urged the court to consider whether criticism of an official's performance in office should be considered defamation, the judges refused. "We're not going to include it as a disputed issue in this case," said Qian Weiguang, the chief judge. Pu slapped his forehead in frustration.
A Hush Over the Courtroom
He stepped up his attack the next day, when Zhang's attorneys called their first witness. Pu accused the man, a party official who had worked for Zhang, of embezzlement, collecting excess taxes and killing a man while driving drunk.
"The witness is not a criminal!" one of Zhang's attorneys objected.
"Yes, yes," Pu replied, raising his voice. "But I just want to know, how could someone who had clearly committed a crime not only escape any punishment but then receive a promotion? If Secretary Zhang can interfere with the law -- "
The judge cut him off.
Zhang's attorneys called 13 other witnesses, almost all of them party officials, men with power who were clearly unaccustomed to being challenged. Often, they bristled and refused to answer when pressed by the defense. Sometimes, the chief judge would order them to answer, and they ignored him, too.
The highest-ranking official, a gray-haired county leader named Li Pinzheng, demanded the defense attorneys' names. He also answered his cell phone while on the stand. Later, when an attorney told him to pay attention, he blew up: "You're telling me to pay attention! You're the one who needs to watch out!"
As the defense pressed the witnesses, some revealed damaging details. The book had said officials punished peasants for violating the one-child policy by demolishing their homes and seizing their livestock. But one official who took the stand admitted that the county also had forced couples to be sterilized, requiring it of women even if their husbands had already undergone surgery.
When Zhang's last witness, a peasant named Dai Junming, took the stand, Pu asked him how many children he had. Three, the man replied. Then Pu asked: "Have you been sterilized?"
The courtroom hushed. The witness stared blankly at the lawyer. Pu repeated the question. Again, the man said nothing.
Zhang's attorneys objected, but the judge surprised them, siding with Pu and addressing the witness himself: " lease answer the question. Have you been sterilized?" There was another awkward silence.
Finally, Pu moved on, and asked the witness a different question: "Do you think Zhang Xide was a good party secretary in Linquan County?"
He didn't answer that one either.
On the third day of the trial, Pu began calling witnesses, all of them peasants from Linquan. His cross-examinations had put Zhang on the defensive, but now he seemed like a prosecutor building a case against him. The libel charges were all but forgotten.
One after another, the peasants recalled the events described in the book in damning detail: their suffering at the hands of party officials who demanded illegal taxes; the tough one-child policy campaigns with slogans declaring that it would be better to end seven pregnancies than to allow an extra child to be born; and the appeals for help that took them all the way to Beijing, where 74 of them knelt in protest in Tiananmen Square in 1995.
The most vivid testimony concerned a raid on their village by military police on April 3, 1994. Residents said Zhang ordered the police to punish them for protesting his policies. The officers beat anyone they found and dragged away a dozen people, including some who had nothing to do with the protests, the witnesses said.
"It was worse than when the Japanese ghouls invaded," testified Wang Yongliang, an elderly, white-haired peasant, who said many villagers were so terrified they fled to a neighboring province.
Others, including Wang Xiangdong, 42, a rugged-faced peasant leader, said they were arrested and tortured. "Every officer hit me, and they kept asking, 'Are you tired of living yet?' " he testified.
The last witness was a frail, 69-year-old woman in a flower-print blouse, Zhang Xiuying. Sobbing, she recalled how her husband shouted when police seized him, then suddenly collapsed. The officers left him on the ground, and the villagers were too afraid of the police to help him. He died the next day.
After she finished testifying, the woman suddenly knelt in the well of the courtroom and cried out, "May the honorable judges render justice to my family!" The chief judge shouted for order. But the gallery erupted, and another woman knelt and pleaded for justice, too.
Pu jumped to his feet, wiping away tears, as security officers led the women from the room.
Plaintiff on the Defensive
Zhang Xide sat quietly at the plaintiff's table through much of the trial, sipping tea from a steel thermos. He let his attorneys do most of the talking. But as the trial began spinning out of his control, he smiled less and spoke up more.
"That's a lie!" he blurted out occasionally, drawing rebukes from the chief judge and laughter from the gallery. But for the most part, Zhang stayed cool and casually dismissed the peasants' complaints.
He said party leaders had long ago concluded that the police raid was justified and handled correctly. "Just a few trifles," he said of the corruption allegations. Defending his enforcement of the one-child policy, he said, "Only 20 or so families had their houses torn down."
He also defended his use of county funds to buy a Mercedes-Benz. "I didn't buy it for myself, but for anyone who needed the car for work," he said. Pressed by the lawyers, he added: "This has nothing to do with this case. I have my human rights."
From beginning to end, Zhang maintained that the book was trouble for the party.
"This book doesn't encourage people to obey the law or work hard, but glorifies crime and violations of discipline," he said. "It incites the peasants to protest in large groups, launch surprise attacks on police, steal guns, insult county party secretaries and so on. . . . If 900,000 peasants are guided like this, what kind of result will there be for China?"
He sneered when the defense noted that the book had been critically acclaimed, and he reminded the judges that it had been banned. "Why haven't domestic newspapers and media said anything about it since March?" The book, he said, "was strangled" by the party.
When it came time for Pu to question Zhang, he asked only one question.
"I've been willing to believe you originally didn't know the facts," he said slowly. "But today, facing the suffering of these people, including suffering at the hands of your subordinates, do you have any regrets or remorse or a feeling you let these peasants down?"
Zhang replied: "No."
Waiting for a Verdict
In his closing statement, Pu argued that the authors had a right to criticize Zhang's performance in public office. The law should protect people's rights, he said, not serve as a tool of revenge for officials. But then he broadened his rhetoric, suggesting the trial had shown that not only Zhang but others in the party could be held accountable under the law, no matter how old their crimes.
"This case has given us a chance to reexamine what happened during the reign of party secretary Zhang 10 years ago," he said. "We hope this case will make it clear to hundreds of thousands of officials that they should not abuse their power and oppress the people. . . . All of it will be redressed with time."
Pu ended with a subtle plea to the judges to defy their party superiors.
"Obviously, there is room for you to be creative," he said. "If you are appropriately creative, your efforts and morals will lead society toward the further development of civilization and democracy. Your names will go down in history. . . . Your judgment will show whether the judiciary in China can shoulder its responsibility to promote the development of society."
But the lawyers said the judges have told them they cannot decide the case, which suggests that higher-level party officials are involved. The party's deliberations have been complicated because accounts of the trial have been published on the Internet and in Hong Kong. In a sign of the party's indecision, several officials have contacted the authors and their attorneys and urged them to settle the case.
So far, the authors have refused. "Settling isn't an option," Chen said recently. "We've come this far. We want a verdict."
Researcher Jin Ling contributed to this report. |
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