《纽约时报》系列报道:《依法治国》之五(Rule by Law)

作者: 阮一峰

日期: 2006年4月23日



Legal Gadfly Bites Hard, and Beijing Slaps Him



BEIJING, Dec. 12 - One November morning, the Beijing Judicial Bureau convened a hearing on its decree that one of China's best-known law firms must shut down for a year because it failed to file a change of address form when it moved offices.


插图一 /Gao /Zhi /sheng, right, an aggressive lawyer harassed by Beijing, in a secret location in northern China.

The same morning, /Gao /Zhi /sheng, the firm's founder and star litigator, was 1,800 miles away in Xinjiang, in the remote west. He skipped what he called the "absurd and corrupt" hearing so he could rally members of an underground Christian church to sue China's secret police.

"I can't guarantee that you will win the lawsuit - in fact you will almost certainly lose," Mr. Gao told one church member who had been detained in a raid. "But I warn you that if you are too timid to confront their barbaric behavior, you will be completely defeated."

The advice could well summarize Mr. Gao's own fateful clash with the authorities. Bold, brusque and often roused to fiery indignation, Mr. Gao, 41, is one of a handful of self-proclaimed legal "rights defenders."

He travels the country filing lawsuits over corruption, land seizures, police abuses and religious freedom. His opponent is usually the same: the ruling Communist Party.

Now, the party has told him to cease and desist. The order to suspend his firm's operating license was expanded last week to include his personal permit to practice law. The authorities threatened to confiscate it by force if Mr. Gao fails to hand it over voluntarily by Wednesday.

Secret police now watch his home and follow him wherever he goes, he says.

He has become the most prominent in a string of outspoken lawyers facing persecution. One was jailed this summer while helping clients appeal the confiscation of their oil wells. A second was driven into exile last spring after he zealously defended a third lawyer, who was convicted of leaking state secrets.

Together, they have effectively put the rule of law itself on trial, with lawyers often acting as both plaintiffs and defendants.

"People across this country are awakening to their rights and seizing on the promise of the law," Mr. Gao says. "But you cannot be a rights lawyer in this country without becoming a rights case yourself."

Ordinary citizens in fact have embraced the law as eagerly as they have welcomed another Western-inspired import, capitalism. The number of civil cases heard last year hit 4.3 million, up 30 percent in five years, and lawyers have encouraged the notion that the courts can hold anyone, even party bosses, responsible for their actions.

Chinese leaders do not discourage such ideas, entirely. They need the law to check corruption and to persuade the outside world that China is not governed by the whims of party leaders.

But the officials draw the line at any fundamental challenge to their monopoly on power.

Judges take orders from party-controlled trial committees. Lawyers operate more autonomously but often face criminal prosecution if they stir up public disorder or disclose details about legal matters that the party deems secret.

The struggle of Mr. Gao and others like him may well determine whether China's legal system evolves from its subordinate role into something grander, an independent force that can curtail abuses of power at all levels and, ultimately, protect the rights of individuals against the state.

"We have all tried to shine sunlight on the abuses in the system," says Li Heping, another Beijing-based lawyer who has accepted political cases. "Gao has his own special style. He is fearless. And he knows the law."

An Air of Authority

Mr. Gao can cite chapter and verse of China's legal code, having committed it to memory in intensive self-study. He is an army veteran and a longtime member of the Communist Party.

On a recent trip to rural Shaanxi Province, where he sneaked into a coal mine to gather evidence in a lawsuit against mine owners, he wore a crisp white shirt and tie and shiny black loafers, as if preparing for a day in court.

He is also a flagrant dissident. Tall and big-boned, he has the booming voice of a person used to commanding a room. When he holds forth, it is often on the evils of one-party rule. "Barbaric" and "reactionary" are his favorite adjectives for describing party leaders.

"Most officials in China are basically mafia bosses who use extreme barbaric methods to terrorize the people and keep them from using the law to protect their rights," Mr. Gao wrote on one essay that circulated widely on the Web this fall.

After an early career that racked up notable courtroom victories, he has plunged headlong into cases that he knows are unwinnable. He has done pro bono work for members of the F*l*n G**g religious sect, displaced homeowners, underground Christians, fellow lawyers and democracy activists. When the courts reject his filings, as they often do, he uses the Internet to rally public opinion.

His fevered assaults have a messianic ring. But although he became a Christian this fall and began attending services in an underground church, the motivation to pursue the most sensitive cases - and put his practice and possibly his freedom at risk - began a couple of years earlier. It was then that his idealistic beginnings as a peasant boy turned big-city lawyer gave way to simmering rage.

Mr. Gao was born in a cave. His family lived in a mud-walled home dug out of a hillside in the loess plateau in Shaanxi Province, in northwestern China. His father died at age 40. For years the boy climbed into bed at dusk because his family could not afford oil for its lamp, he recalled.

Nor could they pay for elementary school for Mr. Gao and his six siblings. But he said he listened outside the classroom window. Later, with the help of an uncle, he attended junior high and became adept enough at reading and writing to achieve what was then his dream: to join the People's Liberation Army.

Stationed at a base in Kashgar, in Xinjiang region, he received a secondary-school education and became a party member. But his fate changed even more decisively after he left the service and began working as a food vendor. One day in 1991 he browsed a newspaper used to wrap a bundle of garlic. He spotted an article that mentioned a plan by Deng Xiaoping, then China's paramount leader, to train 150,000 new lawyers and develop the legal system.

"Deng said China must be governed by law," Mr. Gao said. "I believed him."

He scraped together the funds to take a self-taught course on the law. The course mostly required a prodigious memory for titles and clauses, which he had. He passed the tests easily. Anticipating a future as a public figure, he took walks in the early morning light, pretending fields of wheat were auditoriums full of important officials. He delivered full-throated lectures to quivering stalks.

By the late 1990's, though based in remote Xinjiang, he developed a winning reputation. He represented the family of a boy who sank into a coma when a doctor mistakenly gave him an intravenous dose of ethanol. He won a $100,000 payout, then a headline-generating sum, in a case involving a boy who had lost his hearing in a botched operation.

He also won a lawsuit on behalf of a private businessman in Xinjiang. The entrepreneur had taken control of a troubled state-owned company, but a district government used force to reclaim it after the businessmen turned it into a profit-making entity. China's highest court backed the businessman and Mr. Gao.

"It felt like a golden age," he said, "when the law seemed to have real power."

That optimism did not last long. His victory in the privatization case made him a target of local leaders in Xinjiang, who warned clients and court officials to shun him, he said. He moved to Beijing in 2000 and set up a new practice with half a dozen lawyers. But he said he felt like an outsider in the capital, battling an impenetrable bureaucracy.

The Beijing Judicial Bureau, an administrative agency that has supervisory authority over law firms registered in the capital, charged high fees and often interfered in what he considered his private business.

One of his first big cases in Beijing involved a client who had his home confiscated for a building project connected with the 2008 Summer Olympics. Like many residents of inner-city courtyard homes, his client received what he considered paltry compensation to make way for developers.

When Mr. Gao attempted to file a lawsuit on his client's behalf, he was handed an internal document drafted by the central government that instructed all district courts to reject cases involving such land disputes. "It was a blatantly illegal document, but every court in Beijing blindly obeyed it," he said.

In the spring of 2003, Beijing was panicking about the spread of SARS, a sometimes fatal respiratory affliction, and Mr. Gao was fuming about forced removals. He gave an interview to a reporter for The China Economic Times arguing that SARS was much less scary than collusion between officials and developers.

"The law is designed precisely to resolve these sorts of competing interests," he said in that interview. "But their orders strip away the original logic of the law and make it a pawn of the powerful and the corrupt."

An Empty Promise

Mr. Gao is not the first lawyer to test China's commitment to the law. Even in the earliest days of market-oriented economic reforms, when the legal system was still a hollow shell, a few defense lawyers quixotically challenged the ruling party to respect international legal norms.

One such advocate is Zhang Sizhi, a dean of defense lawyers, who has accepted dozens of long-shot cases that he views as advancing the law. He defended Jiang Qing, Mao's wife, when she faced trial after the Cultural Revolution. He also represented Wei Jingsheng, perhaps China's best-known dissident.

Mr. Zhang argues that lawyers have prodded the party to develop a more impartial judiciary. But, he says, they must do so with small, carefully calibrated jolts of legal pressure.

"The system is improving incrementally," he said. "If you go too far, you will only hurt the chances of legal reform, as well as the interests of your client."

That view may reflect a consensus among seasoned legal scholars. But Mr. Gao is 37 years younger than Mr. Zhang, far less patient, and after his initial burst of idealism, deeply cynical.

If Mr. Zhang's benchmark for progress is that every criminal suspect has the right to a legal defense, Mr. Gao's became the 1989 Administrative Procedure Law, which for the first time gave Chinese citizens the right to sue state agencies. By his reckoning, it remains an empty promise.

"The leaders of China see no other purpose for the law but to protect and disguise their own power," Mr. Gao said. "As a lawyer, my goal is to turn their charade into a reality."

Following his defeat in the Beijing land dispute he plunged into the biggest land case he could find, a prolonged battle over hundreds of acres of farmland that Guangdong Province had seized to construct a university. Legally, he hit another brick wall. But he fired off scores of angry missives about the "brazen murderous schemes" of Guangdong officials. The storm of public anger he helped stir up got his clients more generous compensation.

Mr. Gao said he was told later that the party secretary of Guangdong, Zhang Dejiang, had labeled him a mingyun fenzi, a dangerous man on a mission. "He was right," Mr. Gao said.

This summer, a fellow lawyer-activist named Zhu Jiuhu was detained for "disturbing public order" while representing private investors in oil wells that were seized by the government in Shaanxi, Mr. Gao's home province.

Mr. Gao rushed to Mr. Zhu's defense with fellow lawyers, local journalists and tape recorders. He camped out in local government offices until officials agreed to meet him. He told one party boss that "he would forever be on the wrong side of the law and on the wrong side of the conscience of the people" unless he let Mr. Zhu go, according to a recording of the conversation.

After the intensive publicity campaign, Mr. Zhu was freed this fall, though under a highly restrictive bail arrangement that prevents him from practicing law.

Most provocatively, Mr. Gao has defended adherents of F*l*n G**g, a quasi-Buddhist religious sect that the party outlawed as a major threat to national security in 1999.

Mr. Gao has been blocked from filing lawsuits on behalf of F*l*n G**g members. But in open letters to the leadership, he said the secret police had tortured sect members to make them renounce F*l*n G**g. He described a police-run, extra-judicial "brainwashing base" where, he said, one client was first starved and then force-fed until he threw up. Another of his F*l*n G**g clients, he says, was raped while in police custody.

"These calamitous deeds did not begin with the two of you," he wrote in a letter addressed to President Hu Jintao and Prime Minister Wen Jiabao. "But they have continued under your political watch, and it is a crime that you have not stopped them."

The Police Circle

The crackdown came first as a courtesy call.

Two men wearing suit jackets and ties, having set up an appointment, visited his office. They identified themselves as agents of State Security, the internal secret police, but mostly made small talk until one of them mentioned the open letter Mr. Gao had written on F*l*n G**g.

"They suggested that F*l*n G**g was more of a political issue than a legal issue and maybe it was best left to the politicians," Mr. Gao recalled. "They were very polite."

When they prepared to leave, however, one of them said, "You must be proud of what you have achieved as a lawyer after your self-study. Certainly you must be worried should something happen to derail that."

Mr. Gao said he talked to his wife and considered the future of his two children. He wondered whether he could still afford his Beijing apartment and his car if his business collapsed.

"Anyone who says he does not consider this kind of pressure is lying," Mr. Gao said. "But I also felt more than ever that I was putting pressure on this reactionary system. I did not want to give that up."

His resistance hardened. The Beijing Judicial Bureau handed him a list of cases and clients that were off limits, including F*l*n G**g, the Shaanxi oil case and a recent incident of political unrest in Taishi, a village in Guangdong. He refused to drop any of them, arguing that the bureau had no legal authority to dictate what cases he accepts or rejects.

This fall, he said, security agents have followed him constantly. He said his apartment courtyard has become a "plainclothes policeman's club," with up to 20 officers stationed outside. He and his wife bring them hot water on cold nights.

On Nov. 4, shortly after being warned to retract a second open letter about his F*l*n G**g cases, Mr. Gao received a new summons from the judicial bureau.

This time, the bureau provided a written notice that said it had conducted routine inspections of 58 law firms in Beijing. Mr. Gao's, it was discovered, had moved offices and failed to promptly register the new address, which it called a serious violation of the Law on Managing the Registration of Law Firms. He was ordered to suspend operations for a year.

When the requisite public hearing was held, Mr. Gao sent two lawyers to represent him. But he boarded a plane for Xinjiang, where he had a medical case pending and where he wanted to inquire about abuses against members of an underground Christian church.

The edict was not only not overturned after the hearing, it was broadened. By late November, the bureau issued a new notice demanding that Mr. Gao hand over his personal law license as well as his firm's operating permit. Both had to be in the hands of the bureau by Dec. 14. The authority would otherwise "use force according to law to carry it out."

When he received that second order, Mr. Gao had escaped his police tail and traveled to a location in northern China that he asked to keep secret. He was conducting a new investigation into torture of F*l*n G**g adherents. A steady stream of sect members visited him in the ramshackle apartment he is using as a safe house. He tries to meet at least four each day, taking their stories down long hand.

"I'm not sure how much time I have left to conduct my work," Mr. Gao said. "But I will use every minute to expose the barbaric tactics of our leadership."



插图二 /Gao /Zhi /sheng, now in hiding in northern China, has made a career of using the legal system to promote human rights and combat official malfeasance.