I have written numerous open letters about the deadly mistake of accusing Falun Gong adherents of using “an evil religious organization to undermine the state laws or administrative regulations”. I was expecting those in charge of the judiciary system [in China] to at least respect the law and correct such a huge mistake.
Of the articles that I wrote, my legal opinions were expressed most comprehensively in a letter addressed to the Supreme People’s Procuratorate and the Supreme People’s Court, written on July 20, 2008, in which I declared “A Big Past Mistake Needs to be Corrected Swiftly Now to Address the Aftermath.”
Despite the urgency and anxiousness of my appeals, I have not received any responses. Of course, some unexpected consequences did occur: My attorney’s certificate was temporarily confiscated, and the law firm that employed me terminated my contract.
In order to make those in charge of the judiciary system realize the gravity of the mistakes they have made in cases involving Falun Gong adherents, it is far from enough to discuss it on paper alone. One has to participate in opportunities when practicing law. Coincidentally, I learned yesterday that Gu Li and Qiu Shujing (also called Qiu Shuping), Falun Gong practitioners in Jinzhou District, Dalian City, Liaoning Province, were to appear in court on charges of using “an evil religious organization to undermine enforcement of the state laws or administrative regulations.”
Gu Li had an attorney representing her. Qiu Shujing did not. I decided to represent Qiu Shujing in court to defend her innocence. The following is a brief description of the court hearing.
After verifying the identity of the parties concerned, I requested the presiding judge, on humanitarian grounds, to remove the handcuffs from the two ladies. The judge rejected my request.
During the court investigation phase, the prosecutor even asked the misleading question, “Did you distribute Falun Gong evil religion’s propaganda materials.” I protested twice, and on the second occasion, the judge issued me a warning that was noted in the court records.
When it was my turn to pose questions to Qiu Shujing, I spoke as follows.
Question: Qiu Shujing, as the issue of “evil religion” is involved in this case, during the stated periods of time, did the police officers and the prosecutor tell you is the definition of a “righteous religion” when they met you?
Question: Do you think the law has the right to determine whether a belief is or is not an evil religion?
Question: For the crime of "undermining enforcement of the state laws," one has to be dissatisfied with a specific law or administrative regulation. One has to bear a grudge against it and consider that it has hurt one's interests. Consequently, are you dissatisfied with any of the state laws or administrative regulations?
Question: Do you know what to do in order to undermine enforcement of a law or administrative regulation?
Just then, the prosecutor suddenly objected. I did not hear the exact argument of his objection. However the presiding judge concurred with the prosecutor and stopped me from posing further questions. Still, I had asked the questions that needed to be asked.
During the cross-examination phase, the prosecutor provided a large amount of "evidence," including a personal computer, a printer, brochures, and DVDs. The prosecutor inquired about each piece of evidence. It was apparent that the prosecutor had spent a lot of time researching this case.
We did not have any evidence to present to the courtroom. Nor did I plan to dwell on material evidence. In other words, I wanted to defend her innocence based on Qiu Shujing's admission of doing a large amount of truth clarification work.
Before I was to express my opinion in defense statements, I planned to distribute the copies of Article 300 of the Criminal Law to the jurors and the prosecutor, so that they would have in hand a reference while I presented my legal opinions. But the presiding judge rejected my good will. I had to read aloud the three sections of Article 300 of the Criminal Law before starting my defense.
The content of Article 300 of the Criminal Law:
Section 1. Whoever organizes or uses superstitious sects or secret societies or evil religious organizations, or uses feudal superstition to undermine enforcement of the state laws or administrative regulations shall be sentenced to fixed-term imprisonment of not less than three years and not more than seven years. If the circumstances are especially serious, the offender shall be sentenced to a fixed-term imprisonment of not less than seven years.
Section 2. Whoever organizes or uses superstitious sects or secret societies or evil religious organizations, or uses feudal superstition to deceive another person and causes death of the person shall be punished according to the provisions of the preceding paragraph.
Section 3. Whoever organizes or uses superstitious sects or secret societies or evil religious organizations, or uses feudal superstition to rape a woman or defraud [a person of their] property shall be deemed a criminal and punished according to the provisions of Article 236 and Article 266 of this Law.
There are four constitutive elements in China's criminal law: objective requisites, subjective requisites, subjective aspect, and objective aspect. Applying them to the three sections of Article 300 of the Criminal Law, it is apparent that in both Section 2 and Section 3, there is clearly an object of crime. Consequently, in Section 1, for one to "undermine enforcement of the state laws or administrative regulations" there has to be an object of crime, that is, a specific state law or administrative regulation. Here the state laws are being listed with administrative regulations; they have to be narrow in scope, and not include judicial explanations or departmental rules, etc. However, in this case, we could not find a specific state law or administrative regulation, the enforcement of which had been undermined by the party concerned.
Official publications in China that offer authoritative explanations on the understanding and application of Criminal Law all point out that one has to have intent in terms of subjective aspect to commit a crime that pertains to any article in the Criminal Law. However, in this case, even the object of the crime could not be found, let alone whether Qiu Shujing's subjective aspect was intentional or inadvertent in terms of undermining the enforcement of the state laws. At the same time, another constitutive element, the objective aspect, is not relevant at all. The extent to which Qiu Shujing undermined the enforcement of any laws or caused any social damage or legal consequence is completely inapplicable. That is to say, when applying the charges against Qiu Shujing, three of the four constitutive elements were missing.
Regarding this case, I, as defense attorney, offer the following conclusion.
1. The definition and distinction that pertain to a "righteous religion" or an "evil religion" do not belong in the legal domain at all. It is a topic of the belief domain. There have been arguments over righteous religion and evil religion ever since religions have existed in human society. In today's world, no one would consider Christianity to be an evil religion. However, in the first 300 years of Christianity's founding, it was persecuted as an evil religion. Since the distinction of a righteous religion and an evil religion is not a legal question, embedding "evil religion" in a section of a law is against the contemporary spirit of the rule of law. As a result, the first half of the charges in the case, that is, "using evil religious organizations," in the defense attorney's opinion, cannot be used. At the same time, this is not the main body or key point of the charges brought up in the case. After all, it is a matter of choosing which approach to take: whether a belief is an evil religion or not cannot be made clear by discussing here.
2. The main body and key point of the charges in this case lie in "undermining enforcement of the state laws or administrative regulations." Falun Gong practitioner Qiu Shujing does not know which "law" or "administrative regulation" damages her interests, let alone how to "undermine the enforcement" of a law. In fact, the prosecutor will not find the enforcement of any state law or administrative regulation has been "undermined" by Qiu Shujing.
To establish the crime of "using evil religious organizations to undermine enforcement of the state laws or administrative regulations" one has to be intentional in the subjective aspect before any crime has been committed. Falun Gong practitioner Qiu Shujing does not even know which law or administrative regulation threatens her interests, so discussing whether her actions were intentional or inadvertent is not applicable.
To undermine enforcement of the laws is not the same as violating a discipline. An ordinary person does not even know how to undermine the "enforcement" of a law.
In summary, it is the defense attorney's opinion that regardless of whether the so-called evidence presented to the court in this case is factual, and regardless of the number of pieces of evidence, as long as these pieces of "evidence" cannot prove that Qiu Shujing intentionally interfered with or undermined the enforcement of a specific law or administrative regulation (that is to say, to carry out in social activities), or has caused damaging social consequences, the court cannot be allowed to put her on trial based on this article of the Criminal Law. From what we see now, the detention, arrest, and prosecution that were carried out have all been wrong. As a result, I request the court to immediately announce Qiu Shujing's innocence and to release her.
The prosecutor apparently did not expect I would use such a defense. He brought up the charges completely based on facts, and I did not comment on the facts—I only defended my client using the applicability of the law. As long it does not constitute a crime based on the law, no matter how much evidence is presented, it cannot be deemed to be criminal evidence. In opposing my defense, the prosecutor made a one-sentence statement: “To use evil religious organizations is to undermine enforcement of the laws.”
The reaction of the prosecutor in the court hearing indicated that he had put a lot of thought into the case, responded quickly, and had clear thought processes. He would do well in many other prosecutions. However, the issue that he faced today could be a difficult one because the entire judiciary community in China cannot challenge it.
The presiding judge then gave me another opportunity to make a speech. I pointed out that the prosecutor's statement is a misunderstanding of Section 1 of Article 300 of the Criminal Law. I posed a question to him to clarify my opinion: “If evil religious organizations can be used to undermine enforcement of the laws, then why is it necessary to have Sections 2 and Sections 3 under Article 300?”
Throughout the entire court hearing, I was fortunate to be able to completely present my opinion.
After the hearing, I submitted to the court, as a supplementary document to my defense statements, a copy of my article “A Big Past Mistake Needs to be Corrected Swiftly Now to Address the Aftermath.”
It is a mistake when neither those who committed it, or bystanders who saw it, failed to realize that it is nonsense—no one found it awkward. However, as soon as someone points it out, and others give it just a little thought, they will realize its absurdity and that such a mistake has to be stopped. I believe the Jinzhou District Court will not overtly violate the stipulation of Article 300 of the Criminal Law, and will not dare to issue sentencing on the two innocent parties concerned.
I also hope that people in the judiciary community in China and overseas, and those who care about the situation of the rule of law in China, have a simple analysis on the criminal charges against Falun Gong believers entirely from the legal perspective and from the four constitutive elements that comprise a crime. It may take just a few minutes and you will see how it is obviously a mistake to apply the charge of "using evil religious organizations to undermine enforcement of the state laws or administrative regulations." As to the brutality and severity of the damage to Falun Gong adherents persecuted under this charge in the past nine years, it is beyond the scope of this article.
Read this article in Chinese.