Out of Mao's Shadow

by Philip P. Pan

  Six years passed before Pu accepted another case that tapped into his idealism about a lawyer’s ability to make a difference. In 2003, he agreed to defend a literary critic who had been sued for defamation by one of China’s most famous authors, Yu Qiuyu. While preparing for trial, he read about New York Times Co. v. Sullivan, the landmark 1964 Supreme Court decision on freedom of the press. The decision protected the publication of all statements, even false ones, about public officials except those published with reckless disregard for the truth. By setting such a high burden of proof for defamation, Pu read, the Court made it possible for American news organizations to report on civil rights infringements in the South without fear of being sued. He thought the case was an inspiring example of the power of the law to move a society, and he incorporated the decision’s reasoning into his defense. Uninhibited discussion of public issues was so important to society, he argued, that public figures should not be allowed to use the law to intimidate their critics. The judge never addressed his argument, but Pu won the case.

  Suddenly, Pu began to feel better about being a lawyer. He had found a legal principle he wanted to fight for—freedom of speech—and he began to believe that a good lawyer who picked the right cases could make a difference. Over the next year, he took on four more defamation cases, defending two magazines, a newspaper, and a scholar from lawsuits filed by companies and business tycoons. In a nation where censorship is standard and criticizing a party leader can result in a prison sentence, Pu was carving out a niche for himself as a free-speech lawyer.

  The four cases were still pending when Pu heard about a fifth, Zhang Xide’s lawsuit against the authors of An Investigation of China’s Peasantry. The case was different from the others, because Zhang was a public official. Pu purchased a copy of the book, pirated editions of which were widely available despite the government’s decision to ban it. “I read the book carefully,” he recalled, “and it made me furious.” It reminded him of his own experiences in the countryside; only a decade earlier, rural officials enforcing the one-child policy had forced his sister-in-law to abort a pregnancy in the ninth month. The authors Chen Guidi and Wu Chuntao already had an attorney, but Pu contacted them and offered his services for free. He told them he wanted to turn the case into China’s version of New York Times Co. v. Sullivan and argue that the nation would be better served if the courts protected the public’s right to criticize party officials. He also faxed them a copy of the argument he filed in the case he won a year earlier. The authors were impressed. A few weeks later, in a meeting in Pu’s office in Beijing, they invited him to join their defense team.

  ON AUGUST 22, two days before the trial was scheduled to open, I met Pu on the platform at Beijing’s mammoth western rail station and we boarded an overnight train to Fuyang. There are more than a hundred cities in China with populations over one million, and many Chinese have probably never heard of most of them. Fuyang, however, a gritty railway hub that calls itself the nation’s Liquor Capital, had been in the news lately. A few months earlier, authorities discovered that factories there were producing fake baby formula that had caused dozens of infants to starve to death and left more than two hundred others severely malnourished. Local officials were accused of taking kickbacks and looking the other way. It was not the first scandal to hit the city. A huge airport sits unused outside Fuyang, the vanity project of a former mayor who wanted to make it easier for himself to jet off to Beijing and Shanghai. He was later implicated in a massive bribery case and executed. The party was so worried about corruption in Fuyang that afterward it distributed a photo of his corpse to city officials as a warning.

  It was a nine-hour journey from Beijing to Fuyang, and when Pu wasn’t sleeping in his bunk, he sat hunched over a stack of court papers, working on his defense under the dim lights of the train car. Given the city’s reputation for corruption, it seemed doubtful he had much of a chance of winning the case, and I asked him why he was even bothering. He laughed, and acknowledged he didn’t expect to win. “I still have to do a good job,” he explained. “That’s my obligation to my clients.” But there was more to it than that. The party claimed to govern by the rule of law. It debated legislation, set up courts, hired judges, held trials—it wrapped itself in the trappings of the law, because doing so conferred an aura of legitimacy on it. It was a charade, of course. The party spent three times more on its riot control police than it did on courts and prosecutors, and when push came to shove, it believed it had the authority to do whatever it wanted, legal or not. Pu understood this as well as anyone. But he believed the legal charade offered an opportunity. Using the courtroom as a stage, he intended to present a convincing case to the public. If he did a good job, the party could still rule against him, but it would have to drop the charade, expose its commitment to the law as a fraud, and pay a price in damage to its image. The stronger the case he presented, Pu believed, the higher that price would be, and if it were high enough, party leaders might think twice about putting themselves above the legal system. In that moment of hesitation, something remarkable could happen. The charade could become a reality—the party could be constrained by its own sham laws.

  It was a long shot, of course, and Pu knew it. He had been to Fuyang three times already for pretrial hearings and had seen little to give him hope. The plaintiff and defendants had been summoned to exchange evidence in advance of the trial, in the equivalent of the discovery process in an American civil suit, but the sessions were haphazard and neither side was required to produce witnesses for depositions. The attorney representing Zhang Xide even resisted giving Pu a copy of the documents he planned to introduce at trial, complaining that it would cost too much to photocopy. After all, he seemed to be saying, why waste the money when it was obvious how the trial would end? But Pu insisted and offered to cover the cost himself. Eventually, the judge intervened and ordered Zhang’s lawyer to make the copies. It was the smallest of victories, and Pu knew it didn’t mean much. Even if the judge sympathized with the defendants, he had little real power. Judges are appointed by the party and required to carry out the party’s orders. They preside over cases but generally don’t have the authority to decide them. Instead, they make a recommendation to a party committee, and the party committee determines the verdict. The bottom line was that local party officials controlled local courts. In one survey, less than 5 percent of Chinese judges said they would rule according to the law if it conflicted with the instructions of their party bosses. Since Zhang was one of those bosses in Fuyang, Pu’s only real hope was the intervention of more senior party leaders. For that to happen, the trial would have to attract a great deal of public attention, and that seemed unlikely because propaganda officials in Beijing had not only banned An Investigation of China’s Peasantry, they had also prohibited media coverage of it.

  A few weeks before the trial, though, one journalist did manage to break the news blackout and publish an article about the case. It was really just a transcript of an interview with Zhang, but he came across as a buffoon and it put the lawsuit back in the news. Wang Heyan, a tough-as-nails investigative reporter for a business newspaper in Beijing, had persuaded her editors to run it by arguing that the censors had barred coverage of the book but not specifically the lawsuit. By just reporting Zhang’s answers to her questions, instead of writing a full article about the case, she also made it more difficult for the censors to punish her paper. After all, shouldn’t a party newspaper give a party official such as Zhang a chance to address the public? When Sina, one of the nation’s top Web sites, picked up the interview, it received national attention, and many readers who saw it were outraged by Zhang’s attempt to use the courts to punish the authors. Pu thought the report was terrific, a clever bit of journalistic maneuvering that worked to his clients’ advantage.

  But another lawyer on the defense team reacted differently. Wu Ge, a clean-cut, bespectacled man who looked like a nervous history teacher, was one of the more prominent public interest
lawyers in Beijing. At age thirty-seven, he was the director of a constitutional law and civil rights center at Tsinghua, the nation’s most prestigious university after Beida, and he had helped represent the family of Sun Zhigang, the college student whose death in police custody in Guangzhou led to the abolishment of the shourong detention system. Like Pu, he was a hustler and a believer in the power of the law to change society. But while Pu was an outsider and a political outcast, Wu’s position at Tsinghua made him an insider, someone who could work with the party’s legal establishment. At first, he had asked simply to observe the case for research purposes, but the authors Chen Guidi and Wu Chuntao later invited him to join their defense, because they believed his connections could be useful. He had also said he could get funding to help cover the trial costs, primarily the expense of bringing witnesses to Fuyang.

  When Wu saw the Zhang interview, it gave him an idea. He met with Chen and Wu and proposed a countersuit. Zhang, he argued, had slandered them in the interview by accusing them of making up the stories about him in their book. The newspaper and Sina were guilty as well because they published his interview. But most important, Wu said, if the authors filed a countersuit, they could do so in a court in Beijing, because both the newspaper and Sina were based there. Zhang Xide might be able to control the courts in Fuyang, but in Beijing his influence would be limited and it would be easier to attract media coverage and the attention of party leaders. In Beijing the authors would have a chance.

  Chen Guidi liked the idea immediately. He had been upset by Zhang’s interview. It angered him that Zhang had been allowed to vent at length in the newspaper while the censors prohibited reporters from quoting him and his wife at all. He was also thinking ahead to the trial. Zhang was almost certainly going to win, and the court could then order them to apologize and pay the entire twenty-five thousand dollars he had demanded in damages. If they were going to lose in Fuyang, then it made sense to him to try to fight back in Beijing. He believed that he and his wife needed to defend their reputations. And at the very least, a countersuit would give them some leverage in settlement discussions.

  Pu was furious when he heard about the plan. He told Chen that a countersuit was a terrible idea, that Zhang had just as much a right to criticize the book as Chen and his wife had to write it. He argued that they should be thanking Sina and the newspaper, not suing them. After all, no one had dared write about the lawsuit after the book was banned until Wang came up with the idea of publishing the interview with Zhang. Both her newspaper and Sina had risked punishment from the propaganda authorities, and they had focused public attention on the trial again—attention that was critical if the authors were to have any chance of winning. Chen was unconvinced at first. He kept arguing that it wasn’t fair that Zhang’s accusations could be published while he and his wife had been silenced. If Wang Heyan had only published a few sentences on his behalf, he said, it would have been different. Wu Ge defended his proposed countersuit, too. But Pu retorted that he was the specialist on defamation cases, and he reminded the authors why they had retained him. He had successfully defended a literary critic who had been sued by one of China’s most famous writers. If they sued the newspaper and Sina, Pu said, they would lose in court, just as that famous writer lost. But most important, he said, they would be giving up the moral high ground and undermining their own best defense—that the law should be used to protect speech, not suppress it.

  In the end, the authors took Pu’s advice and decided against the countersuit. But the fight placed a strain on the defense team that lingered as we arrived in Fuyang. Pu and Wu Ge were barely on speaking terms, and it was clear neither man liked the other very much. What little respect they did have for each other dissolved on the eve of the trial in a last-minute dispute over who would serve as the authors’ lead attorney. Pu had been involved in the case longer, but Wu attempted to take the job from him. Both lawyers lost their temper and threatened to quit. The authors couldn’t decide what to do and considered firing both lawyers and representing themselves in court the next morning. It was not until well past midnight that they finally decided to keep Pu as their main attorney.

  “We had to make a choice, and in a place like Fuyang, we needed somebody like Pu,” Wu Chuntao told me. “We knew we needed a cannon.”

  ROOM NO. 2 at the Fuyang municipal courthouse had that drab, functional, wood-paneled look of courtrooms around the world. Three judges in black robes presided from the bench, with the red-and-gold emblem of the People’s Republic of China on the wall behind them. A stenographer sat in front of them, hunched over a desk next to the witness stand. To the left, at the plaintiff’s table, sat Zhang Xide and his two attorneys, one of whom also wore a black robe, signaling his status as a former prosecutor. Facing them on the right were the defendants and their lawyers. Pu and Chen sat in front, along with an older woman, Lei Yanping, a lawyer from the provincial capital whom the authors had hired before Pu joined the team. Wu Ge, who never carried out his threat to quit, sat at a table behind them, next to Chen’s wife and Lu Zhimin, a lawyer who represented the authors’ publisher.

  More than a dozen police officers stood guard around the courtroom, and everybody had to show a ticket to get in. The court had given the authors twenty-five tickets, and they distributed most of them to peasants who had traveled to Fuyang from Linquan County to watch the trial. They gave me one, too, and I dressed as a peasant and sat in a row near the back of the gallery, trying to blend in and avoid the gaze of the police. A handful of Chinese reporters had also come, though most on their own time to show support for Pu and the authors, because their editors had already told them it would be impossible to publish anything about the trial. Sitting on the plaintiff’s side of the room were some of Zhang’s supporters, including several young toughs in crew cuts who appeared to be his bodyguards. Though there were plenty of empty seats in the gallery, hundreds of peasants from Linquan County were refused entry and forced to wait outside. They milled about in front of the courthouse, crowding together every once in a while when someone emerged from the building during a break and gave them a blow-by-blow of the proceedings.

  The presiding judge, Qian Weiguang, a slim, middle-aged man who wore plain glasses and an impatient scowl, did all of the talking for the court. The other two judges—a younger man and an even younger woman—sat silently on either side of him, and sometimes appeared to be dozing off. None of them had a law degree, but that was not unusual for judges even in a city of 1.7 million. More than a quarter century after reopening the courts, the party was still struggling to find qualified people to staff them. In many jurisdictions, judges had little more than an elementary school education. Others were demobilized soldiers for whom the party needed to find jobs. Judge Qian’s résumé was about average. He had been appointed to the bench after working his way up from a position as a courthouse clerk.

  Zhang’s lead attorney, the one in the robe, delivered the first opening statement. He spoke with a local accent and read from a prepared text. He said Chen Guidi and Wu Chuntao fabricated the material in their book about Zhang and libeled the party boss twenty-three times by lying about his appearance and his job performance. Zhang did not speak like an “uncouth lout,” as the authors wrote, he said, nor did he have a “five-short figure,” the phrase they used to describe his short arms, legs, and neck. The lawyer also denied that Zhang had imposed excessive taxes on the peasants of Linquan County or ordered police to beat the residents of Wangying Village after they traveled to Beijing to complain. “As a senior party member and a qualified cadre who has made no mistakes…Zhang Xide is using the weapon of the law to demand justice,” he declared. He asked the court to seize the publisher’s profits from the book and order the authors to apologize and pay about twenty-five thousand dollars in damages.

  The four defense lawyers took turns responding. Lei Yanping, the lawyer from the provincial capital, spoke first and set a defiant tone for the team. “If a party secretary can’t take criti
cism without considering it defamation,” she said, “I suggest he quit and go home.” But it was Pu who laid out the bulk of the case. Wearing a silver tie and a gray short-sleeved shirt, he spoke quickly and forcefully, only occasionally referring to his papers. He noted that An Investigation of China’s Peasantry was a work of “reportage literature,” a popular Chinese genre in which writers sometimes embellish the facts for literary effect. The authors, therefore, should not be held responsible for minor inaccuracies, only for serious and malicious falsehoods. On that score, Pu said, they stood by their book. The chapter on Zhang was based on extensive research, he said, including internal party reports and countless interviews with the residents of Linquan County. To prove defamation under Chinese law, Zhang would have to demonstrate that the book had damaged his reputation, but Pu argued that his reputation was in tatters long before the authors began their research in Linquan County. It was not the book that damaged his reputation, Pu said, but his own misconduct in office.

  Finally, Pu made the New York Times Co. v. Sullivan argument. He urged the court to set a higher burden of proof for a public official to prove defamation. Government officials wield so much power that people are naturally afraid to say anything bad about them, but public scrutiny and discussion are essential to reducing corruption and improving governance, Pu argued. Officials should not be allowed to use the law to suppress criticism of their job performance, he said. On the contrary, the law should encourage and protect public criticism of government officials. Judge Qian, however, was not persuaded, and he dismissed Pu’s request to allow debate on the issue, ruling that the trial should focus on the narrow question raised by Zhang’s complaint—did the book insult Zhang and damage his reputation? Pu stared dumbfounded at the judge and slapped his forehead in frustration.