China Change, August 28, 2020
On August 11, 2020, Hunan provincial Justice Department issued a “Notice of Administrative Penal Action” [translation included below] permanently disbarring lawyer Xie Yang (谢阳). Those who have followed the 709 crackdown on human rights lawyers will recall that the then-detained Xie Yang, one of the only two 709 detainees who eventually got to see their own lawyers, spoke to his defense attorney Chen Jiangang (陈建刚) about the horrific torture he had been subjected to. Chen published the transcript of his meetings with Xie Yang in January, 2017, causing an immediate and strong response from the international media and governments, because up to that point (18 months following the 709 arrests), little was known about these lawyers’ situation. Eleven ambassadors in Beijing wrote to the Chinese minister of public security calling for an investigation into the torture of human rights lawyers and demanding an end to the secret system of detention known as “residential surveillance at the designated location” (RSDL). In response, the Chinese government launched an all-out smear campaign on the state media against Xie Yang’s wife Chen Guiqiu (陈桂秋), lawyer Chen Jiangang, and lawyer Jiang Tianyong (江天勇) who coordinated the effort to free the 709 detainees. The media accused the three of fabricating Xie Yang’s torture accounts. To buttress its denial that Xie had been tortured, the Hunan authorities made a “deal” with him: they would free him and allow him to keep his practice in exchange for his admitting guilt and confirming in a televised trial that he had not suffered torture. On August 21, we spoke to lawyer Xie Yang about these events and his recent disbarment. ㅡ The Editors
China Change: I heard that the Hunan provincial Justice Department approached you before issuing the Notice to disbar you. When did they first talk to you about it?
Xie Yang: On August 4, 2020. I was asked to go to the Changsha municipal Justice Bureau at 9:30 a.m. that day to answer questions about a client’s “complaint.” As this was going on, two men from the Hunan provincial Justice Department came in. One of them showed me his work ID. I met this person before for other matters. He told me that the Justice Department is permanently disbarring me due to a criminal conviction against me in 2017.
CC: By “criminal conviction,” they are referring to, as the Notice of Administrative Penalty writes, “Xie Yang was convicted of inciting subversion of state power during the first trial by Changsha People’s Intermediary Court on December 26, 2017, but exempt from criminal punishment. The judgment has hitherto taken legal effect.”
XY: Yes. I stated my opinion immediately. According to Article 66 of Hunan Province Administrative Procedures, after an administrative procedure is set in motion, the administrative organ shall perform administrative investigation. But no such investigation had been performed with regard to the punishment levied against me. Instead, they just came in and announced it to me like that. It sets a terrible precedent, meaning that from now on, they can use oral notification instead of written notice when disbarring a lawyer. It’s a procedural violation.
As for the substance, I said to them that this judgement, issued in December 2017, has been nearly three years old. According to the Law of the People’s Republic Of China on Administrative Penalty, “No administrative punishment shall be given for illegal acts which have not been discovered within two years.” In my case, they negotiated a “deal” with me: I would be “convicted but exempt from punishment” and thus be able to continue my practice; in exchange, I would present a false confession in the court during the trial in May 2017. In other words, I cooperated with them for the trial in order to keep my license.
Afterwards, the two officials from the Hunan Justice Department said they needed me to confirm and sign that I received their notice. I did. Then I asked me for a photocopy of my confirmation and a transcript of our conversation, and they declined. Nor did they allow me to take a photo of my confirmation statement. As they prepared to leave, I said to them: for such a significant penalty, you ought to give me a written notice of intent in advance. But they said the law doesn’t clearly require it. I said, you still have to conduct this in writing even if the law doesn’t stipulate it. I said that the Hunan provincial regulations on administrative procedures only stipulate that oral notice can be used in a simple procedure, that in any case you ought to give a written notice of intent to show the rigor of this administrative action as well as to follow the general procedure of disbarring a lawyer, and that you ought to inform me of my right to a public hearing in such a written notice of intent.
They didn’t not inform me of my right to a public hearing when they passed on the penalty decision orally. No, they didn’t. This is a violation of Hunan province’s regulations on administrative penalty that took effect on October 1, 2018.
I called them after they announced the penal decision on August 4. I said to them: what I did in 2017 was a deal that I had entered with you, and I hope you would not put an end to it unilaterally. Having said that, I again asked them for a written notice, and they still didn’t provide one. Then on August 11, they issued the Notice of Administrative Penal Action itself, and delivered it to my law firm.
CC: The Notice says “Xie Yang did not request for a hearing within the statutory limitations.” But you just told me that they didn’t allow you the chance to have a hearing, is that right?
XY: That’s right. They told me the penalty decision on August 4 but did not tell me I had the right to a hearing. As I said I argued with them, also orally. None of this is in writing. According to Article 74 of Hunan Province’s regulations on administrative procedures, the relevant administrative organ shall inform me of the right to a hearing before such decision being made, but they didn’t do so.
CC: Who are the two officials from the Hunan provincial Justice Department who informed you of the disbarment decision on August 4?
XY: One is Peng Zhengqiong (彭峥琼) and the other is Zhou Chun (周纯). Peng spoke and Zhou transcribed.
CC: I have a question: You were released on May 8, 2017, right after the trial. Why was the judgement issued on December 26, 2017?
XY: At the time their consideration was how to control me, because there was an important meeting in November that year [CC: The Fifth BRICS Sherpa Meeting was held in Changsha in November 2017]. After the televised trial on May 8, 2017, they didn’t hand out the verdict, but released me on probation. From May 8 to August 8, I was held in house arrest in a hotel room in Yungai Hill, Lianhua Township, Yuelu District (岳麓区莲花镇云盖山) of Changsha. They held me extralegally for three months. After I was released from house arrest, they assigned people to follow me around and didn’t withdraw them until after December 26 when the verdict was handed out.
CC: When did you resume practice?
XY: After the verdict was delivered. But before that, from August 8 to December 26, 2017, I handled cases I had had before; I just didn’t take on new cases.
CC: In Changsha municipal Justice Bureau on August 4, you were told that you were disbarred because you had been criminally convicted in 2017. But the Notice of Administrative Penal Action, issued on August 11, says you are punished because “When Xie Yang was representing a certain case, he gathered supporters to rally outside the courthouse on the day of trial. During the trial, he smacked the desk and shouted insults at the judge.” Now, did the two officials from the Hunan Justice Department mentioned “a certain case (某案件)”?
XY: No, not at all.
CC: In other words, the Notice on August 11 gives a different reason for disbarring you, correct?
CC: Now, tell me a little bit about “a certain case.” Which year was it? What case was it? What happened during the trial?
XY: I think they are referring to a land appropriation case that I handled and the trial was held in April 2015. It was a collective lawsuit in Changsha. There were three clients, each client had two defense lawyers, so there were six lawyers. But two of them were disbarred human rights lawyers and they acted as citizen legal agents, which is allowed by China’s criminal procedure law. But during the trial, the judge ordered removal of these citizen agents. Unwilling to leave, they protested, then the judge brought in a large number of court marshals to drive them out, and that caused a bit of scuffling. The court adjourned. Then I was detained after July 9, 2015, when the crackdown on human rights lawyers began, and my firm subsequently backed out of the case.
CC: So the “certain case” is more than five years ago. Is it legal for them to punish you for it? What’s the statute of limitations?
XY: They are just cooking up an excuse to punish me. It has nothing to do with the law. Like I said before, according to Article 29 of the Law of The People’s Republic Of China on Administrative Penalty, “No administrative punishment shall be given for illegal acts which have not been discovered within two years.” This is what the law stipulates, though this land appropriation case is more than five years old, and the “criminal conviction” from the 709 case is more than two years old. Both are beyond the statute of limitations.
CC: China Change published our video interview of your wife and your defense lawyer Chen Jiangang, titled “Turning the Tables,” at the end of July. So when I first heard that you were going to be disbarred, my immediate thought was: Are you punished for the film interview about the long and thrilling process of how the torture against you came to light, even though much of the information has already been out in the open, and even though I didn’t interview you nor lawyer Jiang Tianyong for the sake of your safety? I know your story very well, but this is the first time I contacted you. What do you think? In any case why did they make this sudden move at this moment?
XY: I really can’t tell. It’s possible that the two events are related if you look at the temporal sequence. The fact that they didn’t give me a written notice of intent suggests that they made this decision hurriedly. So the disbarment could be prompted by the film. But honestly I can’t be sure, and you never know which straw broke the camel’s back, given that most of the cases I’ve taken on are for them sensitive cases; that the overall environment for human rights lawyers has worsened; and also that, as the U.S.-China relationship becomes more contentious, the authorities have even less pretense about how they look to the outside world.
CC: Can you outline a few cases that you’ve handled in the last couple of years?
XY: All of them involve abuse of power. One was a P2P case in Changsha with 356 plaintiffs. Another is a legal aid case. The client had some video and audio evidence of Party and government officials accepting bribes or sex service. While in detention, he asked for me and he wanted to give me the material. I think this case might have triggered the disbarment.
Also the appeal case of Li Huaiqing (李怀庆) in Chongqing. Li is a private entrepreneur, he and eight of his employees were arrested in early 2018 for alleged “gangster activities” (涉黑). One of the crimes he was convicted in the first instance is “inciting subversion of state power.” He did not admit guilt and made no confessions.
Here is where I stand: I take full legal responsibility for my actions.
CC: You made a deal with the Hunan authorities nearly two years into detention in the wake of the torture revelations, and they released you and let you keep your license. Now that they have torn up the deal, so you have no obligation to keep silent about the deal anymore. Do you plan to talk or write up about how the deal was made at some point?
XY: I will. It’s been a while, I will have to look up the records and try to remember the details. I will do that.
One of the people who negotiated with me is Li Kewei (李克伟), the then chief of domestic security division of Changsha municipal Public Security Bureau, and the other is Wang Jian (王剑), the director of Changsha municipal Justice Bureau’s office of lawyers management.
The third person who took part is Ding Junfeng (丁俊峰), deputy chief of the Kaifu District Branch of Changsha municipal Public Security Bureau. He was a middle school classmate of mine. He was the intermediary who would see the deal being carried out by each side. These are the key persons in the negotiation.
After I was released in 2017, they forbade me from giving interviews, but I have never paid attention to them, because in the deal I made with them, not talking to the media is not part of it. I didn’t sell this out. I told them, if I resume normal practice but let you restrict my freedom of speech, you may as well keep me locked up here.
An official from Beijing from the Ministry of Public SecurityAfter, who, I was told, was in charge of “ideology” and whose name I don’t know, came to meet me in the evening of December 27, the day after my verdict was issued. He threatened me openly. He said if I didn’t obey, they would do this and that. But I refused. I said: Free speech is my basic dignity as a human being; I only present facts when I give interviews; you can hold me accountable under the law if you think I fabricated lies to the media.
During the house arrest, Changsha municipal Public Security Bureau chief Tang Xiangyang (唐向阳) visited me three times to intimidate me. He said, when you are released you should behave in such and such way, or you will be held under house arrest indefinitely. This is how he said it in his own words: You are a lawyer, you know very well that what we are doing to you now is illegal, but I am here to tell you that, if we can hold you under house arrest for three months extralegally, we can also do so for six months, nine months, three years, or even longer. We can do that.
CC: What will you do next about the illegality of the disbarment?
XY: I definitely will go through all the available legal means to defend my rights. First, I probably will apply for an administrative review (行政复议), then I’ll file an administrative lawsuit. When I apply to the Ministry of Justice for a review, I’m involving the Ministry of Justice of the People’s Republic of China into this case.
CC: Why does the Notice say the administrative lawsuit should be filed with the Changsha Railway Transportation Court (长沙铁路运输法院)? Why this particular court?
XY: Starting 2018, all the administrative lawsuits are funneled to a few designated courts, and in Furong District (长沙市芙蓉区), where I live, the Changsha Railway Transportation Court handles all the administrative lawsuits in our district.
CC: Do you think you may face further danger, such as being detained again?
XY: The risk is always there. But it’s not my style to suppress the truth in order to avoid risks. I’m prepared for escalated persecution. When they delivered the Notice, they already told the director of our firm very clearly: If Xie Yang continues to speak to overseas media and expose these details, we will take the decisive action of arresting him. The director passed on their words to me.
CC: What’s your plan for the future?
XY: Going forward, I will follow only my own will in doing my work and living my life. I will speak what I should speak, do what I should do, and bear all the consequences, including imprisonment. My wife and two daughters are in the U.S. now. The authorities can only go after me, not them. I’m glad that my children are growing up and being educated in the U.S.
CC: Can we publish the content of our conversation today?
XY: No problem. You can publish everything I said. I take full responsibility for its veracity.
HUNAN PROVINCE JUSTICE DEPARTMENT
Hunan judiciary penal actions (2020) August
Notice of Administrative Penal Action
Implicated party: Xie Yang, male, DOB February 4, 1972, lawyer at Hunan Gangwei Law Firm, practicing license no. 14301201110624732, resident of Yueli District in Changsha city, Hunan province
This department opened an administrative penal case in relation to the unlawful conduct of the implicated party Xie Yang, and has given the implicated party advance notice of the grounds for the action, and informed him of his rights according to the law. His statement and appeal have been heard. Xie Yang has not submitted an application for a hearing of evidence in the allotted time frame.
It has been verified that: The Intermediate People’s Court in Changsha city, Hunan Province on December 26, 2017, tried Xie Yang in the first instance on charges of incitement to subversion of state power, and exempted [Xie] from criminal punishment, with legal effect.
The court judgement has found that: in the process of handling a certain case, Xie Yang prior to a court hearing gathered a group of individuals at the courthouse to “surround and provide support”; during the hearing, Xie exhibited behaviors that disrupted court order, such as pounding the table and insulting the judge; following the hearing, Xie organized personnel to congregate at the courthouse entrance; on multiple occasions, Xie used the internet to spread expressions constituting incitement to subversion of state power. This conduct verified by the court constitutes a situation requiring investigation of legal responsibility as stipulated by clauses 6, 7, and 8 of Article 49, Section 1 in Lawyers Law of the People’s Republic of China.
The above facts are confirmed by evidence as detailed in licensing information pertaining to Xie Yang held by the Hunan Province Public Attorney Services Management Platform, and Initial Criminal Verdict No. 116 of (2016) Hunan 01 handed down by the Changsha City Intermediate People’s Court.
It is the opinion of this department that Xie Yang’s conduct is also in violation of Article 49, Section 1, clauses 6, 7, and 8 in Lawyers Law of the People’s Republic of China; the same has been found by the court verdict to be criminal acts of malicious character and circumstance that seriously damage the image of the legal profession, have a pernicious impact on society, and constitute a situation requiring determination of a serious situation as stipulated by Article 39, clauses 2 and 3, in Lawyers and Law Firms, Methods of Penalization for Unlawful Conduct.
As stipulated by Article 49, Section 1 in Lawyers Law of the People’s Republic of China, personnel in charge at this department collectively decided to revoke the attorney practicing license of the implicated party Xie Yang.
Should the implicated party object to this action, he/she has 60 days from the date of the action to submit a request for administrative review to the Hunan Province People’s Government or the Ministry of Justice of the People’s Republic of China. He/she also has six months to raise an administrative lawsuit with the Changsha Rail Transport Court.
August 11, 2020
HUNAN PROVINCE JUSTICE DEPARTMENT [seal]