On 20 November 1980, the historic trial of the Gang of Four began in Beijing. The trial lasted for two months, with ten recently rehabilitated lawyers serving as defence counsel for ten major criminals of the Cultural Revolution that included Chairman Mao’s wife.Footnote 1 This was the first time in the history of the Chinese legal profession that lawyers appeared in front of the nation and the world. Nearly 30 years later, from 12 December 2009 to 9 February 2010, under the rule of Bo Xilai, Chongqing also staged its own criminal trial that captured the nation’s attention. This time, the defendant was a criminal defence lawyer named Li Zhuang, a partner of Beijing Kangda Law Firm. As the verdict stands, Li spent one and an half years behind bars, permanently lost his licence to practise law, and was prosecuted again in 2011 for another crime without being convicted.
The sharp contrast between these two landmark cases signifies the contorted development of China’s legal reform in the past three decades. Since the leadership change of the Supreme People’s Court in 2008, talk of a “backward movement” (daotui) of the legal reform has become a popular discourse both in China’s legal community and among foreign observers.Footnote 2 Slogans such as “judiciary for the people” (sifa weimin) and “proactive judiciary” (nengdong sifa) suggest a notable change in judicial ideology, which embodies the populism of the socialist period that dates back to the judicial practice in Communist areas in the 1940s.Footnote 3 This populist approach clashes with orientations towards legal professionalism increasingly displayed by Chinese lawyers and legal scholars. Consequently, in recent years, we have witnessed an increase in the mobilization of Chinese lawyers against populism.
Perhaps no other case better illustrates the collective action of Chinese lawyers against the populist legal ideology than the trial of Li Zhuang, which one legal scholar called “China’s trial of the century.”Footnote 4 Thousands of Chinese lawyers and other legal professionals, as well as the general public, closely followed the dramatic unfolding of the Li Zhuang case. They used their words and actions to help, support, or criticize the defendant. Meanwhile, the Chinese government relaxed its grip on the professional and public discussions around this highly political case, which, as it turned out, even had an impact on the recent central leadership change. The Li Zhuang case became one of the contributing events that led to the fall of Bo Xilai, who had been widely speculated to join the incoming Politburo Standing Committee but who eventually fell from power and was sentenced to life in prison. All these exceptional characteristics made the Li Zhuang case a rare and remarkable event in China’s recent legal history.
This paper uses the trial of Li Zhuang to analyze the ideological conflicts within the Chinese legal system and the political mobilization of Chinese lawyers. We argue that China’s ongoing legal reform is characterized by the co-existence of two competing ideologies: professionalism and populism. Professionalism prioritizes formal rationality over substantive justice or irrational decision-making.Footnote 5 It emphasizes the autonomy of legal actors and resists political influence on the legal system.Footnote 6 Populism, in contrast, prioritizes public accountability and political legitimacy over professional autonomy.Footnote 7 It uses political campaigns and mass mobilization to pursue substantive justice at the expense of formal legal procedure.Footnote 8 As the paper will demonstrate, Chinese lawyers’ collective action in the Li Zhuang case became both a fight against populism and a defence of professionalism. It was a crucial battle not only for their own survival, but also for the future development of China’s legal and political reform.
In the following pages, we first provide a summary account of the Li Zhuang trial. Then we proceed to analyze three episodes in the Li Zhuang saga and the professional mobilization around this case. The paper uses three main data sources: (i) legal documents from the Li Zhuang trial; (ii) media reports on the trial and online discussions among legal professionals; and (iii) 19 in-depth interviews conducted in Beijing, Shanghai, and Kunming during 2010−12.Footnote 9 Our informants include several lawyers who played key roles in the Li Zhuang case, two journalists who reported on the case, and a number of ordinary law practitioners who followed the case from afar, but their names must remain anonymous in compliance with research ethics. We have also restricted the use of direct quotes in the paper to further protect the identities of our informants.
1. THE LI ZHUANG CASE
In 2009, Bo Xilai, the then Party Secretary of Chongqing, launched a massive “anti-black” (da hei) campaign against organized crimes. Within months, the local authorities arrested over 1,000 criminal suspects. Among the arrested was Gong Gangmo, a local businessman who was charged with organized crime activities, murder, illegal trading, the purchasing of firearms, drug trafficking, and extortion. On 20 June 2009, the Chongqing police detained Gong, and soon afterwards his family approached the nationally renowned Beijing Kangda Law Firm (LHZB_20100101). The firm appointed Li Zhuang, a partner specializing in criminal defence, to handle Gong’s case.
On 20 November 2009, the Chongqing Jiangbei District People’s Procuracy formally charged Gong and 30 other suspects for organized crime activities. Once the Gong family made the 200,000 RMB partial payment (the total legal fees allegedly amounted to some 1.5 million RMB), Li Zhuang and his assistant, Ma Xiaojun, flew to Chongqing (DSKB_20091231; CQRB_20100226; FYFZ_20100306). On 24 November, Li and Ma went to the Jiangbei District Detention Centre to meet with Gong. Li clashed with the police when the latter insisted that the police officers in charge of the case must be present when the lawyers met with the suspect (LHZB_20100101; XHW_20100210).
What happened at this meeting between Li and Gong became a crucial issue in Li’s own trial one month later. The media, Li’s counsel, and the judicial agencies in Chongqing all had different versions of the meeting. According to a Chongqing Daily report, Li whispered into Gong’s ear and coached him to say that he was tortured for eight days and eight nights (CQRB_20100226). In a CCTV interview, Gong said that Li winked at him to coach him (CCTV_20091215). There were notable discrepancies between what Gong told the CCTV and what he provided in his testimony to the procuracy. According to Li and his counsel, Gong confided in Li the details of his forced interrogation, its date and time, and the names of the police officer present and those of the two doctors who treated him afterwards (LHZB_20100101; FYFZ_20100306).
In addition to meeting with Gong again on 26 November, Li also made preliminary efforts to collect evidence in Chongqing. According to the procuracy’s prosecution letter, Li met with several employees from Gong’s Baoli nightclub at a restaurant and coached them to give false testimonies and deny that Gong was the CEO of the company (TY_20100109). In his own defence, Li insisted that he had never met with the three employees that Gong’s brother supposedly introduced to him. He was also unaware of the reason as to why Gong’s brother arranged for these individuals to testify (TY_20100109).
On 31 November, the Chongqing authorities contacted Beijing regarding Li’s clash with the police. The Beijing Lawyers Association and his law firm immediately had a talk with Li, who was directed to communicate with the Chongqing authorities before the hearing began (TY_20100109). On 1 December, a division chief from the Chongqing No. 1 People’s Intermediate Court telephoned Li, asking him to return to Chongqing before the trial for a debriefing. The next day, Li invited four distinguished legal experts in Beijing to review the files for Gong’s case and acquired their expert opinion (TY_20100109).
On 3 December, Li flew back to Chongqing. That same morning, he met with judges at the Chongqing No. 1 People’s Intermediate Court, briefed them on the procedural problems that he had found in Gong’s case, and requested that the hearing be postponed (TY_20100109). That same night, Li met with Gong’s former counsel Wu Jiayou at the Continental Grand Hotel and allegedly asked Wu to contact the two doctors who treated Gong after his interrogation. Wu refused. According to the procuracy’s prosecution letter, Li asked Wu to bribe the police officers who were present at Gong’s interrogation to make false statements (DSKB_20091231; TY_20100109). Li denied the allegation and argued that he was merely performing his duty as Gong’s counsel in finding witnesses (TY_20100109). On 4 December, Li met with Gong for the third time. To get Gong to tell him details of the interrogation, Li requested the police officers to leave the room and, as a result, had another serious argument with the police (TY_20100109; FYFZ_20100306).
In the end, Li was able to postpone Gong’s hearing, originally scheduled for 7 December. On 10 December, however, things suddenly changed for the worse. Gong made a statement accusing Li of coaching him to revoke his previous confession, be disruptive at his trial hearing, and claim that he was tortured during police interrogation (LHZB_20100101). That same day, Li received a call from the Chongqing No. 1 People’s Intermediate Court inviting him to return to Chongqing for a “nice talk” (TY_20100109; FYFZ_20100306). Li told the court that his firm had already decided to terminate its representation in Gong’s case. Afterward, Li visited the Beijing Cancer Centre where Gong’s wife was undergoing treatment in order to have her sign the agreement of termination. Shortly after he arrived at the hospital, Li was arrested by seven plain-clothes police officers and escorted back to Chongqing (FYFZ_20100306). On 12 December, Li was charged with violating Article 306 of the Criminal Law, the crime of lawyer’s perjury (CQRB_20100226).Footnote 10 Within the next few days, Li’s arrest made headlines across the country.
On 19 December, the court formally charged Li with Article 306, and Li’s wife asked Gao Zicheng, a colleague of Li from Beijing Kangda Law Firm, to defend him. In the next two days, Gao met with Li twice at the Chongqing No. 2 Detention Centre and requested bail and to have Li’s case transferred to a different jurisdiction (ZGFYW_20091230). The Court refused both requests and set the trial date for the Li Zhuang case on 30 December—before Gong’s trial. On 22 December, Gao text-messaged Chen Youxi, a prominent criminal defence lawyer in Zhejiang Province who wrote several insightful online commentaries on the Li Zhuang case, and asked Chen to join him in representing Li (FYFZ_20100306). After consulting with the local justice bureau, Chen decided to accept Gao’s invitation (FYFZ_20100306).
On 25 December, Gao and Chen requested the court appearances of eight witnesses, who included Gong and his cousin. They also asked to review the videotapes of Li’s three meetings with Gong and to have Gong medically examined. However, all the witnesses refused to appear in court, and the Jiangbei District Detention Centre did not hand over the tapes, which did not have sound due to equipment problems (DSKB_20091231; FYFZ_20100306; ZGFYW_20091230). On 28 December, Gong underwent an official medical examination ordered by the Jiangbei District People’s Court. The following night, Li’s lawyers received a copy of Gong’s medical report, which noted that a blunt object caused the injury marks on Gong’s left wrist (CQRB_20100226; FYFZ_20100306).
On 30 December, Li’s first hearing began at 9:10 a.m. For this high-profile case, the Chongqing Municipal People’s Procuracy appointed two procurators from intermediate-level procuracies to represent the Jiangbei District People’s Procuracy. While the presiding judge read Li his rights, Li interrupted and requested that the Jiangbei District People’s Court, the Procuracy, and all their associates abstain from the case. At each occasion, the judge denied or ignored Li’s request. Afterwards, Li acted dramatically in court, first refusing to answer any questions and then arguing rigorously against the procurators with the assistance of his two defence lawyers (CQRB_20100226).
Over 100 pieces of evidence were presented in court, including Gong’s testimonies. Still, according to Li’s counsel, none of them proved or could prove that Li fabricated evidence, for Li had neither made notes nor submitted a witness list to the court. During the cross-examination, Li admitted that he taught Gong some techniques in preparing for his trial but nothing that was illegal. Further, Li admitted that he hoped Gong would revoke his confession, for he suspected Gong gave his confession under forced interrogation. “I was only doing what an outstanding and dutiful lawyer should do,” Li declared (CQRB_20100226). After 16 hours, the “marathon” hearing finally ended at 1:30 a.m. the following day with no verdict.
On 8 January 2010, the Chongqing Jiangbei People’s Court found Li guilty of forging and tampering with evidence, and he was sentenced to two and an half years in prison. After the chief judge announced the sentence, Li strongly objected and shouted: “The court’s sentencing is illegal!” (XHW_20100108) In the following ten days, Li’s counsel Gao Zicheng met him twice in Chongqing, and Li continued to insist that he was innocent (FZWB_20100118; FZWB_20100209). On 18 January, Li’s counsel formally submitted an appeal on behalf of Li to the Chongqing No. 1 Intermediate People’s Court (CYXXSW_20100131).
On 2 February, Li’s second hearing began. Unlike other criminal appeals hearings in China, which are often closed-door sessions with no witnesses present, Li’s hearing was not only open to the public, but it also had six criminal suspects that included Gong and two police officers who appeared in court as witnesses. In addition, the Chongqing authorities invited representatives of the People’s Congress, the People’s Political Consultative Conference, and the Beijing Lawyers Association, along with reporters from about 20 media outlets, and faculty and students from local universities, to observe the hearing (JHSB_20100202; CQRB_20100226).
Minutes into the hearing, Li suddenly declared: “I admit to my charges. The evidence from the first hearing was sufficient, the law was rightly exercised, and procedures observed. I withdraw my causes for appeal, the previous reasons for appeal are invalid, but I insist on appealing” (XHW_20100202; CQRB_20100226). Chen Youxi, one of Li’s defence lawyers, requested Li to clearly state his position and asked him whether he knew the consequences of the withdrawal. Li said he understood the consequences. The procurators then asked Li whether he had coached Gong to make a false statement on being under forced interrogation, asked Gong’s former counsel to bribe the police officers present at Gong’s interrogation, and taught Gong’s wife to say her husband was being blackmailed by his business partner. Li admitted to all these charges. When asked why he did so, he replied he wanted to deceive the police, the procuracy, and the court to get his client off (XHW_20100203; SHSB_20100203).
Although Li admitted the charges, his counsel insisted on proceeding with their not-guilty defence. Throughout the hearing, both sides carefully cross-examined Gong and the other witnesses. Li himself also reviewed their testimonies and raised several important questions. Li’s counsel examined Gong’s wrist injuries, but Gong repeatedly denied undergoing any forced interrogations (XHW_20100203; CQRB_20100226). During the cross-examination, Gong and other witnesses all insisted on speaking in the Chongqing dialect, which the defence lawyers could not understand, and the judges had to appoint a translator (CQCB_20100203). Yet Gong spoke fluent standard Mandarin in his CCTV interview in November 2009 (CCTV_20091215). The hearing lasted two days and ended on 3 February. Li made a six-point final statement and admitted to his charges again (BJQNB_20100206).
On 9 February, the Chongqing No. 1 Intermediate People’s Court upheld the charges from the first trial but reduced the original sentence from two and an half years to 18 months. Upon hearing the verdict, Li became outraged and shouted:
My earlier admissions were forced. I was forced to do it. The police and procuracy said they’d reduce my sentence to probation if I admitted to [wrongdoing]. They said if I pleaded guilty, then the second hearing would be an open trial. And still I’m sentenced. If you read my written confession carefully, you would see I was just deceiving the police and procuracy. (XHW_20100210)
As the judicial police were taking him out of court, Li shouted again: “How many martyrs have written confession letters, but this did not change the fact that they were martyrs … I hope the 160,000 Chinese lawyers out there would continue to appeal for me” (FZWB_20100209).
While most observers thought that the dramatic Li Zhuang case concluded in 2010, a surprising new development occurred a year later. On 29 March 2011, the news office of the Chongqing Municipal Government publicly announced that Li was now being investigated again for some “missing criminal activities” (lou zui), and that the new case was already transferred to the Chongqing Jiangbei District People’s Procuracy for prosecution (CX_20110422). The news quickly spread on the Internet and many lawyers and journalists promptly labelled the new prosecution “Li Zhuang Case Season 2” (CJ_20110407; FT_20110419).
In the next few days, the media gradually unveiled the details of the new Li Zhuang case. The Chongqing police investigated three cases: one was the original Gong Gangmo case in which Li was accused of contract fraud, and the other two were cases that Li did in Shanghai and Liaoning Province back in 2008. In these two cases, Li was accused of inducing a witness to provide false testimony (CX_20110422). After the procuracy reviewed the three cases, the contract fraud charge and the Liaoning case were dropped. Only the Shanghai case was prosecuted to the court. In other words, the new Li Zhuang case in 2011 became yet another case concerning the crime of lawyer’s perjury.
The new prosecution of Li Zhuang shocked the Chinese legal community. Many lawyers pointed out that, according to the Criminal Procedure Law, the case should be under the jurisdiction of Shanghai and not Chongqing (FYFZ_20110410; FYFZ_20110411; FYFZ_20110412), but the Chongqing authorities were determined to bring Li to trial again. In a later interview, a key informant told us that Bo Xilai was angry at what Li had said during the sentencing session of his appeals trial in February 2010. Li mentioned the fact that Bo’s father, Bo Yibo, a veteran Communist leader and a high-ranking official in the 1950s, also signed a confession letter to the Kuomintang government while in a Tianjin prison in 1936 (B1201). Consequently, Bo ordered the Chongqing police to make a thorough investigation of all the cases that Li had handled, which led to the new prosecution in 2011.
While the Chongqing procurators were preparing for the trial, several leading criminal defence lawyers also began to discuss how to defend Li Zhuang in this new case. Chen Youxi, one of Li’s counsels in the original case, expressed his pessimism in an essay posted on his website and asked: “Is it still necessary to play the game this time?” Chen and many other lawyers suspected that the chances of getting Li off the charges would be small, given the determination of the Chongqing authorities to keep him in jail (CYYXSW_20110402). Nevertheless, Chen contacted several lawyers at the request of Li’s family, and eventually Wei Rujiu, a Beijing lawyer and the Director of the Constitutional Law and Human Rights Committee of the Beijing Lawyers Association, agreed to take on the case and go to Chongqing to meet with Li. Wei asked his friend Yang Xuelin, another criminal defence lawyer in Beijing, to collaborate with him for the Chongqing trip (S1101; S1104; B1102).
On 6 April, Wei and Yang flew to Chongqing and met with Li Zhuang. The meeting went smoothly; the local judges and police officers were very co-operative (B1102). Then Wei flew to Shanghai to meet with Chen Youxi, Li’s family, and Si Weijiang, a well-known public interest lawyer in Shanghai (S1101; B1102). Wei collected evidence in Shanghai then in Liaoning Province. However, shortly after the Shanghai meeting, Li’s wife decided to change Li’s counsel from Wei to Si, claiming that Wei and Li had some “personality conflict” (S1101). Meanwhile, Si suggested that Li’s wife keep Yang Xuelin as Li’s counsel because it would be inappropriate to change both lawyers who met with Li in Chongqing (S1101). In the end, Si and Yang became Li’s defence counsel in the new case.
Although Chen Youxi decided not to represent Li this time, he remained active behind the scenes. In addition to contacting other lawyers to represent Li in court, Chen also organized a number of prominent legal scholars and criminal defence lawyers to form a “legal advisory committee” to support Si and Yang (S1104). This advisory committee included Jiang Ping and He Weifang, two of the most prominent legal scholars in China, as well as Zhang Sizhi, an 84-year-old lawyer who served as the legal counsel during the historic Gang of Four trial in 1980. Chen Youxi and Wei Rujiu also served on this 12-person committee, which was described by a law professor in Beijing as the “12 Angry Men,” borrowing the title of a classic American movie about a jury trial (Sohu_20110503).
On 19 April, the new Li Zhuang trial opened at the Chongqing Jiangbei District People’s Court. The hearing lasted for two days and the presiding judge adjourned the trial briefly in the afternoon of 20 April, before the defendant made his final statement. Then the Court announced that the trial would continue on 22 April. During the hearing, Li’s two defence lawyers questioned the jurisdiction of the Chongqing court and presented audio and video evidence, which showed that Li requested that the witness give “objective and true” statements (S1101; B1201). At the end of his defence statement, Si Weijiang expressed his pessimism about the outcome of the case but concluded with a strong message to all Chinese legal professionals: “Justice is not at the present, but we can still wait for it to come!” (GSW_20110420). The trial was reported in real time on the Internet by both the Chongqing media and many lawyers, most notably Chen Youxi, on their Twitter-like micro-blogs.
On 22 April, shortly after the trial reopened, the procurators asked to withdraw the case because of the discrepancies between the prosecution’s evidence and the new evidence that the defence had presented in court. After adjourning the court for an hour, the judges approved the prosecution’s request (CX_20110422). This outcome of the new Li Zhuang case pleasantly surprised many legal professionals, including those on the legal advisory committee, some of whom even shed tears when hearing the decision (CYXXSW_20110422). However, it also generated many rumours about the reasons behind the withdrawal. Even Li’s defence counsel could only speculate. Many believed that the central leadership intervened in the final stage of the trial (S1104; B1201), while others thought the Chongqing authorities corrected their own mistake to prevent further damage to their reputation (S1101).
On 11 June 2011, Li Zhuang was released from the Chongqing Nanchuan Prison after serving his 18-month prison term from the 2009 case. His wife and son flew to Chongqing the day before to meet him. Li was treated well in prison and spent most of his time reading, writing poems, and playing chess and table tennis (B1101; B1201). The prison also arranged for him to give lectures to other prisoners on the criminal justice system and other related topics. Upon meeting his son at the airport, Li said: “Trust your dad. I’ve never committed any crime before, and I would never commit any crime in the future” (B1101). However, with his practice licence revoked by the Beijing Justice Bureau in February 2010, Li’s lawyer career had ended for good, unless his criminal sentence could be reversed in the future.
2. POPULISM VS. PROFESSIONALISM: THREE EPISODES IN THE LI ZHUANG EVENT
In this section, we will analyze the case as a social event, focusing on three key episodes, namely, (i) the controversial coverage of the case in the China Youth Daily; (ii) the allegation of Li’s patronage of prostitutes; and (iii) the “hidden poem” (cangtou shi) in Li’s written confession. Together, these episodes forcefully demonstrate the clashes between the two legal ideologies of populism and professionalism in the Li Zhuang case.
To some extent, sensationalist media coverage generated much of the public attention on the Li Zhuang case. The China Youth Daily article titled “The Surprising Exposure of ‘Lawyers Falsifying Evidence’ in Chongqing’s Anti-Black Campaign, Nearly 20 People Arrested” (ZGQNB_20091214) is a prime example. Published on 14 December 2009, four days after Li’s arrest, the article was mostly based on a standard news brief provided by the Chongqing authorities (XJB_20091217). It not only disclosed extensive exchanges between Li and Gong and presented Li in hyperbolic terms, but it also adapted the negative portrayal of lawyers that the Chongqing authorities used in their anti-black campaign. The article produced a damaging effect on the public discussion of the case and provoked outcry from the legal profession.
In the article, Li’s profile runs as follows:
Li Zhuang, age 48, has been around in the legal circle for over a decade. Kangda, the firm where he works also has considerable “background” in Beijing. Interested in “price tags,” Li most certainly came to Chongqing to milk the anti-black cases. When he agreed to represent Gong Gangmo, he was not only interested in “fishing for people” but also in “fishing for profit.” (ZGQNB_20091214)
According to the article, Li allegedly had Gong’s worried relatives amass 2.45 million RMB in a matter of days. He would receive an additional 20 to 30 million RMB if he could get Gong off death row. When he got Gong’s family to agree to these terms, Li texted his colleague back in Beijing: “black enough, stupid people, plenty of money, come quickly!” (gouhei, rensha, qianduo, sulai) (ZGQNB_20091214). The article also quoted one anonymous Chongqing official, who said that many Beijing lawyers were coming to Chongqing to seek opportunities for “business” and “hidden rules” (qian gui ze). Meanwhile, the people, the Party, and the country had to foot the bill of the lawyers’ unsavoury means of identifying clients and winning cases. This Chongqing official also suggested that lawyers only won 5% of all criminal cases, but they would not even apologize to their clients for their losses despite the high fees that they charged.
Arguably, the article not only passed judgment on Li but also on the entire Chinese legal profession, and its professional and ethical image. Its narrative appeals to the populist legal ideology, rendering the conducts of lawyers mercenary and disruptive to the judicial system. By violating judicial procedures, lawyers are described as the “horses that harm the herd” (hai qun zhi ma) and seen as defenders for “enemies of the people” (ZGQNB_20091214). They hurt popular interests and butt heads with the Party-state and its judicial agencies. Moreover, the 5% “rate of success” in criminal defence referenced in the article has no scientific basis. As a matter of fact, in China as in other continental law countries, such as Japan and France, the criminal procedure puts much weight on the investigation of the police and procuracy and the dossier that they produce. Hence, when a criminal case reaches the trial stage, the percentage of acquittals is kept to a minimum.Footnote 11 In most cases, all that defence lawyers can do is to plead for a lighter sentence. Therefore, it is arbitrary and misleading to define “success” and “failure” in criminal defence as the article did.
Because China Youth Daily is a highly regarded national newspaper, within hours the article was reprinted in many national and local media. By equating Li’s name with “black lawyers” and exaggerating their abuses, the article exacerbated the plight in which Chinese lawyers have found themselves since the enforcement of Article 306 of the 1997 Criminal Law, the crime of lawyer’s perjury. This so-called “Big Stick 306” makes it a serious crime for lawyers to fabricate evidence, and the procuracy often uses it against lawyers who dare to collect evidence contradictory to that of the procurators.Footnote 12 It discourages many lawyers from collecting their own evidence in criminal cases. Li Zhuang was not the first victim of “Big Stick 306.” Hundreds of lawyers before him had been charged with fabricating evidence since the crime was established in 1997.Footnote 13 The difference between the Li Zhuang case and the previous cases is that Chongqing capitalized on the popular support for the anti-black campaign to lay bare before the public the problem of lawyers fabricating evidence.
The Chinese legal profession is generally critical of Article 306. For more than a decade, lawyers and bar associations had called for its revocation or revision. When the China Youth Daily article was published, it immediately generated much online criticism from lawyers. For instance, the day after the article was published, Chen Youxi, who later became Li’s counsel, wrote a lengthy essay in response titled “The Sinking of the Rule of Law: A Critique on the Extraordinary Article of the China Youth Daily” and posted it on his personal website (CYXXSW_20091215). In the next few days, Chen wrote several other essays related to the Li case that generated considerable attention and discussion on the Internet. Chen’s insightful analysis of the case was one of the reasons why he was invited by Gao Zicheng to represent Li.
Evidence of professionalism can be clearly observed in the thousands of lawyer critiques on this China Youth Daily article. Some lawyers argued that it essentially conducted a trial by media in which Li was found guilty, and thus violated the presumption of innocence as a principle of adjudication (CYXXSW_20091215). Other lawyers suspected that the media leaked much evidence to the public before the trial began, evidence that not even the procuracy and the defence lawyers had the right to disclose (FYFZ_20091217). After reading the article, a number of lawyers contacted the two reporters demanding that they disclose the source for the exposé on the notorious text message that Li allegedly sent to his colleagues. Some even requested that the reporters formally apologize to all Chinese lawyers (FYFZ_20091215). It is not an exaggeration to say that the China Youth Daily article turned the plight of one Beijing lawyer in Chongqing into an event of collective action, in which the entire Chinese legal profession mobilized and fought against media and public prejudices toward lawyers. In later media reports, the rapid and strong reactions from the lawyer community presented a counter-narrative to the original negative discourse on the Li Zhuang case and made the conflict between populism and professionalism a salient theme throughout the case.
The mixture of professional and moral evaluations on Li Zhuang is not only found in the China Youth Daily article, but also in another episode in which Li was accused in court of enjoying the free service of prostitutes. In the last round of court argument during Li’s first trial, one of the procurators suddenly accused Li of living in a five-star hotel suite that cost 6,000−7,000 RMB a night and where he enjoyed the service of prostitutes free of charge (TY_20091231). Li immediately replied: “What prostitute? Your friend? What is her name? You are a state procurator, you have to be responsible for your words!” (CYXXSW_20100101). Li’s counsel, Chen Youxi, too, was outraged by the procurator’s astonishing outburst and accused her of launching a “moral trial” to damage Li’s public image and credibility.
The accusation produced the desired public outcry in court as well as strong protests from Li and his counsel. In China, it is not uncommon for procurators to put the defendant of a criminal case on moral trial as well. In appealing to this populist ideology, they effectively blur the line between law and morality. In the socialist era, populism was often used to magnify the class struggle as one between the people and their enemies.Footnote 14 As such, defendants in criminal cases were considered enemies of the people and should be condemned legally, morally, and publicly. The procurator’s moral condemnation of Li merely follows the modus operandi of populist criminal prosecution characteristic of the People’s Republic of China since its early years.
Yet the most curious aspect of the prostitution episode is the premeditated and concerted effort between the Chongqing procurator and the media. The same night that the procurator made her accusation in court, a photo of Li, clad only in a bath towel while being arrested for patronizing a prostitute, appeared on the Chongqing page of China’s largest online forum Tianya (TY_20091231; FYFZ_20120306). On 3 January 2010, the Chongqing Gaoxin District Public Security Bureau also began its investigation into the matter. A few days after, the Chongqing Evening Post published a report on the police investigation with a photo of the place of prostitution Li allegedly patronized (CQWB_20100110). However, it was not long before some Internet observers showed that the photo posted on Tianya had been digitally manipulated to incriminate Li. The police officer in the photo wore summer clothes while Li was allegedly seen hiring prostitutes in November. Indeed, many observers began to suspect that the prostitution episode was a moral trap that the Chongqing authorities set to further mar Li’s public image as an unethical lawyer (FYFZ_20120306). In fact, it was curious that the procurator knew about the matter even before the police could investigate it. In this case, the local media played the role of “throat and tongue” (hou she) in bringing the alleged incident to public attention.
Although strongly criticized by Li’s counsel and many other lawyers as libellous and a serious abuse of state power (FYFZ_20100103; FYFZ_20100306), the procurator’s groundless accusation of Li in court and the subsequent actions by the police and the Chongqing media had effectively manipulated the public debate and people’s opinion of Li. It is evident that the Chongqing authorities disregarded judicial procedures in this trial and used the law merely as an instrument of class struggle against the people’s enemies. Together, state agencies and the media form a powerful populist machine that compels the people to accept the state’s verdict of a certain person or case with little resistance. It does this by rendering Li, as well as other defendants in criminal cases, as blameworthy and unethical, deserving the wrath of the people.
Still, the most melodramatic point of the Li Zhuang case is the “hidden poem” episode during his second hearing in February 2010. Many speculated as to why Li completely changed his defence from the first hearing. Some argued that it was only a defence strategy, whereas others suspected that the Chongqing authorities threatened Li (FYFZ_20100202; FYFZ_20100203). A few days after Li made the six-point written confession at the end of the hearing, some clever Internet commentators discovered a hidden message in Li’s statement. The first and last Chinese characters of each sentence of Li’s confession formed the anagram “[I was] forced to admit guilty to get probation, once released [I would] firmly appeal” (beibi renzui huanxing, chuqu jianjue shensu) (FZW_20100210). This astonishing discovery led many to speculate that Li and the Chongqing authorities made a “plea bargaining” deal.
In a blog post six months after his release from prison (SinaBlog_20111223), Li revealed that, as a defence technique, he proposed to a high-ranking public security official after the first trial that he would confess to his crime if the second trial could be opened to the public and he could get probation as the final sentence. The Chongqing authorities warmly welcomed this proposal as it would mitigate some of the procedural problems during Li’s first hearing and change the unfavourable public opinion at the time. However, Li did not fully trust the Chongqing authorities and carefully prepared the “hidden poem” while in jail, which was reminiscent of some scenarios in classic Chinese novels. The Chongqing authorities also did not keep their promise to Li and gave him an 18-month final sentence.
Still, Li’s admission to the charges was a turning point in the case. Before then, Li received support from nearly all lawyers in China, as well as many legal scholars, who were disturbed by the substantive and procedural problems in the first hearing. Particularly heavy criticism followed the prostitution episode. In response, the Chongqing authorities changed their strategies in the second hearing. They permitted an open trial and let witnesses appear in court. Although these witnesses were apparently “trained” beforehand, the trial procedure itself was relatively open and just. To a large extent, the second hearing remedied many of the procedural problems of the first hearing, Meanwhile, Li’s public image collapsed after his confession in the courtroom. Even some lawyers began to question his moral and ethical standards (FYFZ_20100204; FYFZ_20100210). If it were not for the “hidden poem,” the Li Zhuang case would have become an “iron case” that clarified all the questions and observed all the legal procedures, as the Chongqing authorities claimed (CCTV_20091226; CJ_20100321).
By contrasting the first and second hearing of the 2009 case, we can see that the Chongqing authorities initially pushed populism to its limit, generating widespread negative reactions to the case. However, when they tried to correct their previous mistakes, the authorities turned towards professionalism. When the six witnesses and two police officers were cross-examined during the second hearing, and when Li’s confession was recorded in the court documents, the formal rationality of legal professionalism was superimposed onto the populist substantive justice. As a result, Li did not become a martyr of Chinese lawyers or get the freedom he hoped for. Instead, he became a victim of the populist legal ideology that the Chongqing authorities embodied in this case.
3. A MILESTONE OF PROFESSIONAL COLLECTIVE ACTION
For the most part, populism trumped professionalism in the legal proceedings of the Li Zhuang case. Nonetheless, the case also became a milestone for the collective action of the Chinese legal profession. It was the first time that a large number of lawyers, scholars, and other legal professionals from all over China voluntarily mobilized for a common cause, that is, to challenge the abusive use of “Big Stick 306” on criminal defence lawyers. Hence, it is important to trace the process of professional mobilization in the Li Zhuang case, in order to understand the key turning point by which the Chinese legal profession evolved from a disintegrated, sometimes polarized, occupational group to a nascent but increasingly strong and cohesive professional community.
When the Li Zhuang case first made the headlines in late 2009, the Chinese legal profession was sharply divided. Whereas many lawyers were sympathetic to Li’s arrest and condemned the abusive use of Article 306, some also expressed criticism of Li’s alleged unethical behaviour in the Gong Gangmo case. For example, several lawyers mentioned the fact that Li was an “urban Beijing lawyer” (jingcheng lüshi) whose law firm had high-level political connections (FYFZ_20100201). Some suspected that the primary motivation behind Li’s defence for Gong was to make money. That was also why many Beijing lawyers became counsel for “black gang leaders” such as Gong, who could afford their exorbitant fees (FYFZ_20100206).
It is also telling to compare the opinions of lawyers with those of procurators. At the initial stage of the case, an overwhelmingly large number of procurators on the Law Blog (falü boke, fyfz.cn) website were critical of Li’s behaviour and supported the use of Article 306. For instance, a procurator working in a basic-level people’s procuracy posted three cases of lawyer’s perjury to demonstrate the validity of Article 306 in punishing lawyers who induced witnesses to fabricate evidence (FYFZ_20091222). Another procurator expressed gratitude to the China Youth Daily journalists for revealing the “hidden rules” (qian guize) in the Chinese legal profession, namely, lawyers often charge a large sum of money without playing a substantive role in criminal cases, whereas procurators are poorly paid but assume vital responsibilities (FYFZ_20091222).
Li’s first hearing generated a notable change of tone online among legal professionals. Criticisms were prevalent on the procedural problems that emerged during the trial. A procurator, for example, openly expressed his disappointment in the performance of the Chongqing procurators in court, particularly their blunt ignorance of some key pieces of evidence such as the video of Li and Gong’s meeting and the injury on Gong’s wrist (FYFZ_20100103). Furthermore, the Chongqing procurator’s moral accusation of Li hiring prostitutes generated nearly uniform condemnation among lawyers, judges, and procurators (FYFZ_20091231; FYFZ_20100110). A sense of professional solidarity based on the common belief in legal proceduralism began to emerge.
The growing outrage towards the Chongqing authorities and the sympathy for Li Zhuang vanished, however, when Li openly admitted to the charge in his second hearing. Although many suspected a “plea bargaining” deal between Li and the authorities, Li’s confession still betrayed the faith that lawyers, scholars, and other legal professionals had in him after his defiant actions in the first hearing. This was a turning point not only for the trial itself, but also for the collective action of the legal profession. Both online and offline, many lawyers started to distance themselves from Li, who was no longer regarded as a brave member of the criminal defence bar, but as a coward, a reckless opportunist, or a mindless money-seeker (FYFZ_20100204; B1002; K1005). Many lawyers whom we interviewed in 2010 admitted that, after the Li case, they became more cautious in their criminal defence work (B1002; K1001; K1002; K1005).
However, the legal community also made efforts to restore the reputation of Li Zhuang and challenge the verdict. For instance, Xu Xin, a law professor at the Southwest University of Political Science and Law in Chongqing, who sat in the audience during the second hearing in February 2010, pointed out in a blog post that Li’s confession was merely a defence strategy and his performance in court was even more professional than his two defenders (FYFZ_20100203). He Jiahong, a law professor in Beijing, organized a virtual trial of the case on the Law Blog following the Anglo-American trial procedure (FYFZ_20100321) with dozens of participants serving various roles. In the end, the “jury,” consisting of mostly legal professionals and law students, returned a “not guilty” verdict (FYFZ_20100422).
Bar associations did not support the collective action of Chinese lawyers during the Li Zhuang case. On the contrary, bar associations and justice bureaus seek to restrain lawyers from mobilizing. Although the Beijing Lawyers Association sent a five-person investigation team to Chongqing shortly after Li’s arrest, the team only held a press conference after the trip. It called for Beijing lawyers to “stay calm and rational”; at the same time, it “hoped and believed that the Chongqing judicial authorities would handle the case according to the law” (RMW_20091220). Meanwhile, after Li was convicted in the second hearing, the Beijing Justice Bureau promptly revoked his lawyer licence on 20 February 2010. An informant in Kunming told us that the local bar association distributed relevant documents after the case to caution local lawyers (K1004). Throughout the case, the All-China Lawyers Association (ACLA) kept a low profile and only posted a few articles on its website that discussed the general difficulties of criminal defence lawyers without references to a specific case.
The powerlessness of bar associations and justice bureaus in this case clearly demonstrates their weak positions in China’s political system. In ordinary Article 306 cases, bar associations sometimes played important roles in helping lawyers in trouble; but in politically sensitive cases or cases against higher-level state agencies, their input is usually minimal because they are controlled by justice bureaus and Party mechanisms.Footnote 15 In the new Li Zhuang case, some bar associations and justice bureaus even sent notices to local lawyers, forbidding them to “discuss, participate, or make a defense for the case” (GSW_20110422). It was not until the day Li was released from prison that the China Newsweek magazine published an interview with the ACLA President on the case (ZGXWZK_20110611). Deeply disappointed, one lawyer observed: “In China, it is not the criminal defendants who have the right to remain silent, but the bar associations” (FYFZ_20110630).
Yet not all Chinese lawyers were prevented from discussing, participating, and defending in the new Li Zhuang case. In fact, it was precisely in the 2011 case that lawyers, scholars, legal journalists, and other legal professionals from all over China demonstrated an extraordinary degree of collective solidarity. Chen Youxi’s behind-the-scene mobilization of elite lawyers and scholars is a good case in point. Chen’s bold defence for Li in the original case in 2009−10 earned him much renown and respect in the legal community. In the 2011 case, he was able to use this asset as well as his acquaintance with a few well-known rights defenders in Beijing and Shanghai to assemble a good defence team for Li and a prestigious 12-person legal consulting committee.
While most members of the legal consulting committee served merely a symbolic role, He Weifang, a law professor at Peking University and one of the most respected public intellectuals in China, posted on his blog an open letter to the legal community in Chongqing titled “For the Rule of Law, For the Ideal in Our Hearts” (SinaBlog_20110412). In this letter, He questioned the procedural problems during Chongqing’s anti-black campaign, particularly the Li Zhuang case, and called for judges and legal professionals in Chongqing to act according to their legal obligations and independently from the political will. At the end of the letter, He directly addressed Wang Lijun, the Chongqing Public Security Bureau Chief who later fled to the US Consulate in Chengdu and triggered the fall of Bo Xilai, and asked him to reflect on the consequences of harsh justice and to respect judicial independence. Widely circulated online, the letter elevated the public concerns for the new Li Zhuang case both in China and abroad.
But the mobilization of the legal profession did not stop at the elite level. On 19 April 2011, the first day of Li’s new trial, hundreds of lawyers, law students, and others voluntarily gathered in front of Jiangbei District People’s Court to support Li, including several lawyers who flew in from other provinces such as Hunan and Shaanxi at their own expense (CJ_20110422). Yang Jinzhu, a well-known Hunan lawyer who became an activist in recent years, openly declared on his blogs that he would go to Chongqing to observe the trial (SinaBlog_20110418). When Yang landed in Chongqing and walked out of the arrival hall, a group of approximately 30 locals holding banners with slogans such as “Strike down black-heart lawyer Yang Jinzhu” surrounded and shouted at him until the police came (SinaBlog_20110419). Not surprisingly, neither Yang nor any other lawyers who voluntarily went to the courthouse that day were granted permission to observe the trial.
In comparison to the diversity of opinions formed around the original Li Zhuang case, the new case in 2011 silenced most legal professionals who were critics of Li and supporters of the Chongqing authorities. Even the procurators and police officers who previously supported the crime of lawyer’s perjury considered the use of Article 306 in the 2011 case excessive and unacceptable. A good case in point is a widely circulated blog post written by an anonymous member of the Chongqing police or procuracy with the pseudonym “Yan Qi.” The author admits that his and his colleagues’ attitude toward the case have changed greatly over time. When Li was first arrested, many of them were overjoyed because of their long-time animosity towards lawyers; after the first trial revealed the details of the case, they became silent and did not want to discuss the case any more; and when the new case was opened in 2011, they began to discuss the case again and many considered the new prosecution unnecessary because it was “both unreasonable and intolerant” (SinaBlog_20110424).
In short, the Li Zhuang case not only unified lawyers all over China to fight for their own survival, but it also changed the attitude of the broader legal community, which includes judges, procurators, scholars, and police officers, towards criminal defence lawyers. It is a milestone for the Chinese legal profession’s political mobilization because it not only generated a collective consciousness in the legal community, but also created a new pattern of collective action championed by the progressive elite members of the Chinese bar. The “Conclusion” will discuss this point in more detail.
4. POLITICAL IMPLICATIONS
The trial of Li Zhuang was not only an exceptional legal case and a dramatic social event, but it was also a political incident that influenced the central leadership change of the Chinese Communist Party (CCP). Bo Xilai, the then Party Secretary of Chongqing, was one of the contenders for the membership of the 2012 CCP Politburo Standing Committee. The anti-black campaign, from which the Li Zhuang case originated, was part of Bo’s larger populist project aimed at restoring socialist values and ideologies in Chongqing. Its slogan of “singing the red and striking the black” (changhong dahei) was steeped in the fervour of the Cultural Revolution. The campaign rounded up and persecuted local gangs and private entrepreneurs involved in illegal activities, including Li’s client and accuser, Gong Gangmo. Like most “strike hard” (yanda) campaigns in China,Footnote 16 Chongqing’s massive anti-black campaign expedited the criminal process by using compulsory measures beyond the scope of the Criminal Procedure Law. It was not long before some Beijing lawyers who went to Chongqing to defend criminal suspects found evidence of police torture (FYFZ_20100809).
To prevent out-of-town lawyers from disrupting the campaign’s progress, the Chongqing authorities decided to make an example of Li Zhuang. Li became the primary target for two reasons. First, unlike most Chinese criminal defence lawyers who would defer to the police in their work, Li had serious clashes with the Chongqing police when meeting his client. Second, Li’s law firm, Kangda, was directed by Fu Yang, the son of Peng Zhen, a veteran Communist leader who played a vital role in reviving the legal system after the Cultural Revolution. Some commentators saw Li’s arrest as the continuation of the “generational feud” between two high-ranking Communist families (NYT_20120217). According to a key informant, for this reason, the Chinese central leadership followed the Li Zhuang case from its beginning in 2009 and eventually decided to intervene in the 2011 case (B1201).
A full assessment of the political significance of the Li Zhuang case is still premature, but its impact on the political career of Bo Xilai and his associates was remarkable. Before this case, Bo was thought to be a likely candidate for the next head of the CCP Political-Legal Committee, the top leadership position for the political-legal system (NYT_20110419). However, the trial of Li Zhuang infuriated the Chinese legal community and demonstrated Bo’s ignorance of the basic principles of the rule of law. In February 2012, Wang Lijun, Bo’s right-hand man in the anti-black campaign, was removed from his position and then investigated by the central government after his unexpected visit to the US Consulate in Chengdu (NYT_20120217). On 15 March 2012, the day after the annual National People’s Congress concluded, the central leadership ousted Bo from his Party post. The media identified the Li Zhuang case as one of the contributing factors to Bo’s fall (NYT_20120315).
The only time that Bo officially commented on the Li Zhuang case was during the annual National People’s Congress in Beijing on 6 March 2010, a month after the 2009 case concluded. He fielded questions from reporters and declared that the Li case was just “an interlude” in the anti-black campaign. Bo insisted that Li’s two hearings followed all the procedures and adhered to Chinese law in bringing a lawyer to justice. He emphasized the fact that Li charged his client an exorbitant amount of money and was baffled as to why the case caused such a stir. To end, Bo said: “In this country, no one is above the law. Whoever violated the law will be punished accordingly. That’s our attitude” (XHW_20100306). Two years later, the tables turned and Bo himself was ousted from the CCP and later charged with bribe-taking, embezzlement, and abuse of power. Bo’s own trial began in Jinan on 22 August 2013, with two prominent criminal defence lawyers from a Beijing law firm acting as his defence counsel. In his self-defence, Bo acknowledged the importance of defenders in China’s criminal justice system and ironically stated: “if only the prosecution’s opinions were heard, it would result in a large number of wrongful convictions” (SinaBlog_20130826). On 22 September 2013, the court found Bo guilty of all the three charges and sentenced him to life in prison.
5. CONCLUSION
Since the late 1970s, the ideologies of populism and professionalism have competed in China’s legal discourses and law practice. While socialist popular justice remains the dominant ideology in the judiciary and law enforcement agencies, ideas of the rule of law and procedural justice have become influential in both law schools and the legal profession. The tension between these two legal ideologies is a key for understanding both the progress of China’s legal reform and the collective action of the Chinese legal profession. The trial of Li Zhuang is not only a case that offers a rare look into the legal and political clashes between professionalism and populism, but it is also a key turning point in the political mobilization of Chinese lawyers. The different outcomes of the 2009 and 2011 cases suggest that, although populism remains a formidable force in striking the “enemies of the people,” professionalism has maintained its ground and gained support from a growing range of legal professionals, state officials, and the public. This “birth of a liberal moment” in China echoes the fight for political liberalism by lawyers and other legally trained professionals in many parts of the world.Footnote 17
For the mobilization of Chinese lawyers, the Li Zhuang case inspired a new pattern of collective action. It challenged the populist judicial system not only by mobilizing a small group of lawyers, but also by their networking widely through social media, particularly the Twitter-like micro-blogs. In more recent cases (e.g. the Beihai case and the Xiaohe case in 2012), this new pattern of collective action has become an effective means for lawyers to gain public attention and expose the judicial agencies’ procedural problems.Footnote 18 The irony here, however, is that lawyers have to rely on media and popular support to fight for professionalism due to their weak position in the judicial system. Further, in the recent cases since the trial of Li Zhuang, it was the elite members of the Chinese legal profession that collectively mobilized and defended their unknown colleagues, whereas before it was the small network of activist lawyers in Beijing that took on the highly sensitive cases.Footnote 19 The “progressive elites” who were active in the Li Zhuang case have deep connections with both the state apparatus and the media, and they are able to mobilize these resources to fight for the status of the legal profession and the ideals of professionalism.Footnote 20 Towards their collective action, the Chinese government has displayed a greater degree of tolerance compared to its relentless treatment of activist lawyers.
Finally, the stark contrast between the Li Zhuang trial and the “Gang of Four” trial from three decades ago signifies the contorted progress of China’s legal reform. Although the influence of the ten defence lawyers on the outcome of the “Gang of Four” trial was minimal, it at least showed the symbolic commitment of the Chinese government to protect the legal rights of even the worst criminals of the Cultural Revolution. After three decades, however, Chinese lawyers still suffer from a taboo on effective criminal defence, particularly in politically sensitive cases. In this sense, the Li Zhuang case serves an important educational function. It disseminates the ideologies of legal professionalism and political liberalism, epitomized in lawyers’ criminal defence work, to state officials and the general Chinese public. The case is also a timely reminder that the legacy of socialist popular justice is still alive and well in China, and it deserves a more serious treatment in both scholarship and law practice than the general criticism of a “backward movement.” The cause célèbre of Li Zhuang may have concluded, but the collective action of Chinese lawyers for their survival and the rule of law ideals goes on.
