Sometimes the law is very malleable.
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An advocate for China’s rural poor
By Tom Mitchell
Published: November 6 2009 23:31 | Last updated: November 6 2009 23:31
Prison was hard for Liu Yao. The crusading Chinese lawyer spent 16 months behind bars at a county lock-up in Heyuan, a city in the southern Guangdong province, surviving mainly on a diet of instant noodles and preserved bean curd. His days were spent making plastic bags. His pens and law books were taken away, he says, and he was denied access to newspapers and his case file. When he was freed in April this year his dark hair, which had been shaved off, grew back white.
Liu, 47, was first detained by the authorities on December 19 2007, two days after he led farmers from Bainitang hamlet to the disputed construction site of the Lankou hydropower station, which was being built on their land. In the confrontation, wooden boards and other construction materials valued at Rmb50,615 (£4,500) were allegedly destroyed or stolen. The farmers’ lawyer was formally arrested a month later, accused of inciting unrest. In June 2008 a county court sentenced him to four years in prison.
Liu’s family and colleagues suspected that he had been prosecuted simply for doing his job. “In the course of doing his legal work, he was charged, arrested and convicted,” Liu’s wife, Lai Wei’e, would later tell me. Liu’s sentence was equivalent to a year in jail for each Rmb12,650 in alleged damage. “It’s ridiculous. How can a few boards be worth Rmb50,000?” said Lai’s brother-in-law, Huang Yuhui. “The important question is, ‘Was anyone hurt?’” To which the answer was no, he said.
The case sparked action by lawyers’ associations in Shenzhen, the special economic zone bordering Hong Kong, and in Beijing. “The Shenzhen Lawyers Association is like a father, and its lawyers are like brothers and sisters,” said Lai. The lawyers’ campaign also distinguished the controversy surrounding the Lankou hydropower station from the myriad land disputes that arise regularly across rural China, since it united assertive legal professionals and aggrieved farmers under the same banner.
. . .
Liu personified this unlikely class solidarity. He was born into a humble family in 1962 and raised in Paitou village – of which Bainitang hamlet is part – yet rose to become a member of China’s prosperous professional classes. It is a leap that few rural children make. A partner in Liu’s firm, Zou Zongcheng, says: “I have known Liu Yao for six years. He is the son of farmers. He understands the importance of land and knows how to eat bitterness. He never took any money from those villagers.”
Liu started out as an artist. He specialised in reproducing famous oil paintings – a cottage industry in China – but became interested in the law after his brother was injured in a knife attack. The culprits were never caught; nor were his brother’s medical fees compensated. “I filed a lawsuit on my brother’s behalf because local lawyers wouldn’t accept the case and lawyers in Guangzhou [the provincial capital] were too expensive,” Liu says. “I bought some law books and began to teach myself… I began to help other people file lawsuits.”
In 1989, at the age of 27, Liu started to teach himself law in earnest. He also had his first brush with the authorities, who detained him for three months after he urged local farmers not to pay what he argued were excessive taxes. After his release, he moved to a nearby town, Huidong, and began a legal apprenticeship. “I had to get special approval to take the law exam because I didn’t have the necessary degree – I was just a peasant,” he says. “I passed the exam in 2003 and became a registered lawyer. I got into trouble again for helping peasants in Huidong when local governments seized their lands. That’s how I ended up in Shenzhen.”
When the villagers of Bainitang approached Liu for help in 2006, their case was a routine one in the context of China’s rapidly changing countryside. As costs increased in Shenzhen and other cities across the Pearl River Delta, where south China’s manufacturing industries have traditionally been concentrated, export factories migrated to cheaper sites inland such as Heyuan on the banks of the East River. Heyuan was happy to receive the factories, setting up development zones and recruiting migrant labour. To meet the new demand for power the city turned to its natural resources, placing officials and their hydropower project on a collision course with the villagers of Bainitang. The authorities had not counted on an opponent of Liu’s tenacity.
Liu took the case on the understanding that his firm would be paid 20 per cent of any settlement. After a collective agreement to pay Rmb1.8m (£160,000) fell through, and some of those affected accepted smaller individual offers, Liu led villagers to the construction site on December 11 2007 and again on December 17, when the fateful clash occurred.
“There was some property damage,” Liu admits. “One witness, a minor, said 50 boards were destroyed and another said all of them were. But police photos showed many boards were not destroyed and [the second witness] is an employee of [the dam’s developer]. I believe the minor’s testimony was coached by the police ... An appraisal document appeared belatedly during the trial and was introduced as ‘supplemental evidence’. I call it false evidence and a violation of legal procedure. The verdict was also incorrect because it didn’t mention that the land had been appropriated illegally.”
When the Heyuan Intermediate People’s Court decided to deal with Liu’s appeal through written submissions rather than in open session, 36 lawyers from more than 10 provinces and cities signed a petition on his behalf. Lawyers’ associations in Shenzhen, where Liu worked for the Guangdong Wisdom & Fortune Law Firm, and Beijing also sprang into action. On the evening of August 3 2008, two lawyers, Li Fangping and Xie Yanyi, flew from Beijing to petition the Heyuan court. A hearing was set for the following month.
. . .
A day before the appeal, the committee to save Liu Yao assembled outside the offices of the Shenzhen Lawyers Association, preparing to descend on a hostile court in a rural backwater. I joined the caravan of big-city lawyers for the two-hour car journey, alongside Lai, Liu’s wife, and her brother-in-law – even though Liu’s two defence attorneys, Meng Xi and Li Fangping, were nervous about my presence.
“The lawyers wouldn’t come if they didn’t think my husband had a case,” said Lai as we took the road to Heyuan. “There are problems with the evidence. The case also has implications for other lawyers, who are worried about the precedent it has set.”
Her spirits were picking up, even though a local journalist who had promised to come along had cancelled at the last minute.
The next morning, Liu and two villagers were led into a room at the Heyuan Intermediate People’s Court. Liu, or Prisoner No 14, had a hint of a moustache and appeared to be shirtless beneath a bright orange jail vest. With his shaved head he looked more like a village tough than a lawyer. Li Fangping complained that his client had been brought to court in such a state. Liu and villager Li Zhiguang, who wore a black and blue-striped shirt under his prison garb, were led into the courtroom in handcuffs. The other villager, Li Dongming, wore civilian clothes – his nine-month sentence had recently ended.
Three judges sat opposite Liu. The lead judge looked the part – lidded eyes and a mouth that set naturally in a frown. Lai sat on her own at the back of the small courtroom, which was packed with about 25 policemen and observers. She exchanged only the occasional nod with her husband. Under Chinese court procedures, families do not receive visitation rights if a case is still at the appeal stage. Lai had not had a proper conversation with her husband in months. The situation had been hard on their eight-year-old daughter, she said. “She knows what has happened but there is lots I don’t tell her. I encourage her to study.”
Liu outlined the grounds for his appeal, which centred on evidentiary procedure. He and his lawyers also contended that the hydropower station was built without proper land-conversion approvals, which are necessary before agricultural land can be expropriated for industrial use. If the dam was an illegal construction, they argued, then Liu and his farmer clients should not be prosecuted for opposing its construction.
“My mother and father were peasants. I was a peasant,” Liu told the court, gesturing with his now uncuffed hands. “Like the villagers of Bainitang, we relied on our own hard work.
“We have to protect our land,” he continued, his voice rising. “There is no other option.” Behind Liu his colleagues leaned forward, listening intently. “I led them to the construction site to support them, not destroy things. Are people without money not entitled to a livelihood? Does the country not have laws?”
After four hours of often heated exchanges the appeal hearing ended with fireworks. The lead judge interrupted Liu, telling him to wrap up his final remarks. This provoked an objection from Meng Xi, who demanded another opportunity to speak. When this was denied he and the judge, banging his gavel, started a shouting match. Liu joined in, along with his sympathisers in the gallery. As police and the defendants’ supporters leapt to their feet, Liu and Li Zhiguang were handcuffed and taken away. There was no violence but the courtroom seethed.
. . .
Such bad-tempered exchanges between prosecution and defence highlight an important point about crime and punishment in China. Judges are often poorly trained, and verdicts in politically sensitive cases frequently preordained. But there is a system and its forms are adhered to. From a cynical perspective, this facilitates show trials that enable the government to argue that justice has been done, even when people are jailed for exercising rights enshrined in the country’s constitution.
More optimistically, a trial – no matter how flawed – is clearly preferable to the lawless violence of the cultural revolution and also China’s shadowy laogai, or “reform through labour”, system, which allows police to banish suspects to work camps without a court appearance. The country’s extensive courts system also reinforces the public’s awareness of its legal rights, especially relating to property in affluent urban areas and land in the countryside. And most importantly, a growing network of increasingly assertive lawyers such as Meng Xi and Li Fangping are prepared to use the system, its imperfections notwithstanding, to hold government officials and departments to account.
After the appeal, Liu’s lawyers and their colleagues dissected the morning at a nearby restaurant. “What do we do next? I want to hear your opinions,” Meng said, before offering a few ideas of his own, including a proposal that an objective observer who was present at the appeal should post a summary on the Shenzhen Lawyers Association website.
“This case won’t be decided in Heyuan,” added Li. “There are three regions involved now – Heyuan, Shenzhen and Beijing.” As the lawyers rattled on, Liu’s wife, Lai, sat quietly on the sidelines. At other times she was a whirlwind of activity – organising hotel accommodation and ordering food for the legal team – and remained generally upbeat. But occasionally the emotional strain showed.
Provoking a row with the judge had struck me as a dubious tactic. Yet just three days after Liu’s appeal hearing ended in a shouting match, the Heyuan Intermediate People’s Court ordered the county court to retry the case. The decision seemed to validate the defence’s assertion that the evidence was flawed. And with no new evidence admissible for the retrial, prospects for the lawyer’s release were looking up.
The retrial took place on October 17 and the verdict was handed down two months later, on December 22. It appeared a classic face-saving compromise. The court upheld the earlier guilty verdict, but reduced Liu’s sentence from four years to two. “We are very disappointed with this verdict – Liu Yao will appeal,” Lai said afterwards. “We failed,” added lawyer Meng Xi. “Liu Yao has been given two years’ prison for the same charge. I cannot comment on the judge’s decision but I think this is a very strange case.”
. . .
In March, I visited Bainitang to meet the villager I had last seen in prison vest and handcuffs at Liu Yao’s appeal hearing; Li Zhiguang’s 10-month sentence was almost up at that point. He had been the head of the hamlet at the time of the protest that led to his, Liu Yao and Li Dongming’s imprisonment. It was the second time I had travelled to Bainitang. On my first visit, the final stretch of road to the hamlet was a muddy track that my driver from Heyuan struggled to navigate. Six months later it had become a proper concrete surface. Though no wider than an average suburban American driveway, it represented a leap forward for the hamlet.
Bainitang’s homes were grouped together in a classic defensive cluster. To the west of the village lay fields, river and a mountain range. But for the controversial hydropower station and an expressway on the river’s far bank, it would have been a rural idyll.
Li and I walked to the dam at the centre of the dispute. “That land is mine,” he said, pointing to what had once been a wooded hill at the edge of the East River. Much of the hill was still there. But its riverside slope had been sheared off to make way for the dam and shotcreted for stability. The exposed orange soil, partially patched over with concrete, resembled a poorly bandaged wound. Below, a solitary excavator laboured beside the dam. A small hollow nearby, where villagers used to farm peanuts, was now a dumping ground for earth dug up during construction.
This is where Liu Yao and 30 villagers had assembled to demand a halt to the development. “We told them not to start construction until we had cleared up the matter,” Li said, looking out over the dam. “They said we were being too impulsive and told us to protest through legal channels. But what good is that when the government is the law?”
Having completed his survey of the alleged crime scene, we returned to Li’s home – a red brick and concrete shell with four floors, including the flat roof. There was no toilet, no banister on the stairs and windows were yet to be installed on the upper floors. Mosquito nets protected the beds of the farmer, his wife, Li Youfa, and their two children. His daughter Donghua, 13, and son Dongfei, 12, had chalked some basic maths on an outside wall: “2 + 2 = 4, 4 + 4 = 8” and then, less predictably, “1 + 1000 = 1001”.
For all its flaws, the structure was still an improvement on the mud-brick and tile-roof homes where Li’s father and grandfather lived, and which are now wood stores. “Our family moved here during the Ming dynasty [1368-1644],” he said, reeling off his lineage.
“My grandfather was Kuomintang dynasty,” he added, referring to the Nationalist party that ruled most of mainland China from 1928 to its defeat by the communists in 1949. “My father and I are Chinese Communist party dynasty. Life was the same for all of us. We all tilled the land.” In the main ground floor living area, with only two small bulbs for illumination, was a television and a small dining table. This was also where Li parked his motorcycle. On the wall were clashing symbols: a Christian cross – “My wife believes,” Li said – and a poster of Mao Zedong and his marshals. “Of course Mao was good,” he added when asked about the poster. “Without him we never would have had land. Land is money.”
He disappeared into his bedroom and returned with two precious plastic bags of documents. One contained his land title, valid from 1999 to 2029. From another he produced documents relating to his trial. These included a letter, dated December 1, 2006, confirming his appointment as head of the hamlet; another, dated September 5, 2007, confirming Liu’s appointment as the villagers’ lawyer; and a handwritten copy of an appeal written by Liu on December 25, 2008. “It was no use for me to appeal,” Li said. “I don’t understand the law. There was nothing I could do but depend on the lawyers. I have no money or power. None of my relatives are government officials.” He also produced a letter of his own, written in court, and muttered an apology – “I write badly” – before reading it aloud:
“I am Li Zhiguang, a peasant and native of Dongyuan county, with a primary school education … In May 2006 I took some compensation for my land. My government said that as leader of the hamlet, I should be a good model and give up my land first. A villager named Li Jianxin asked why I agreed to let my land be requisitioned. He and the other villagers didn’t go along with the requisition plan, blocked the roads and said I should step down from my position as village leader.
“I agreed to resign. However, later they hired a lawyer and asked me to stay on. A village must have a leader and it was too late to elect another. So I helped organise the lawsuit, the petitions and other things.”
As Li spoke, Donghua and Dongfei squabbled good-humouredly over the seat in front of the television. They were also excited about having their pictures taken. It was a much happier home than the first time I visited, when their father was in prison. The fact that Li accepted Rmb20,000 (£1,800) for some, but not all, of his expropriated land does not exonerate the local government, especially if it was not properly reclassified. Nor does it have any bearing on the concerns about Liu’s conviction. It does highlight, however, how difficult it can be for villagers – in China and elsewhere – to maintain a united front in the face of concerted government pressure.
. . .
A week after talking to Li, I caught up with Liu’s wife. She was distressed. “They are monitoring my home and phone – I don’t feel free,” Lai Wei’e said when we met in a hotel lobby in downtown Shenzhen. I hadn’t recognised her at first – her hair was not pulled back, as before, and seemed almost to hide her face. She also wore large pink-framed glasses, even though it was cloudy. We went to a nearby park to talk.
It was then a year and three months since her husband had been swallowed up by China’s penal system. Lai also gave me a bitter statement written by her husband. “County prosecutors betrayed the truth and the law … In order to prove that the hydropower station was a legal construction, they provided totally unrelated and laughable evidence. Only a stupid judge could accept it.” The county and township officials involved declined my repeated requests to discuss the case.
Liu was similarly scathing about the official valuations of the construction materials allegedly destroyed: “Only an idiot could believe them.”
“As a lawyer appointed by the villagers, I led them to the construction site to stop an illegal construction,” Mr Liu’s statement concluded. “There was some damage but it didn’t exceed the boundaries of legitimate self-defence. In helping the villagers defend their land, I did not endanger society. I am not a criminal and the judge shouldn’t find me guilty on the basis of false and illegal valuation documents. To do so would be an injustice and profane the law.”
Lai’s wish came true. Her husband was granted his second appeal hearing on April 10. Six days later, Heyuan Intermediate People’s Court announced its decision to shorten the lawyer’s sentence to 18 months and suspend the two months he technically still had to serve. It was not the complete exoneration Liu and his wife had hoped for – the conviction still stands and he was given two years’ probation. But after 16 months behind bars he was free and could see his family again – and visit a hairdresser to have his now white hair dyed black.
Liu says he will continue to appeal against the verdict. He complains that, as a convicted felon, he can no longer practise as a lawyer. “I’m unemployed now and can’t take cases,” he says. “It’s ridiculous. In trying to stop a crime I was branded a criminal. Sometimes the law is very malleable.”
Tom Mitchell is the FT’s south China correspondent
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