Apr 26
Letter: Mainland Han human rights lawyers defend Tibetan lama
Written by Otto Kerner on Sunday, April 26th, 2009 at 12:06 am
Filed under:-guest-posts, -mini-posts | Tags:human rights, law, rule of law, tibet
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Filed under:-guest-posts, -mini-posts | Tags:human rights, law, rule of law, tibet
Add comments
Amid the depressing news of the trial of Phurbu Tsering Rinpoche, a respected lama from Kardze (western Sichuan), is a hopeful sign: he is being defended by two Han Chinese human rights lawyers. They say that they have had some harrassment from the police, but they have not been prevented from serving as counsel to a man they believe was unjustly accused. They have helped him have his day in court, which is better than nothing. In my opinion, democracy and nationalism, etc., are less important than simple rule of law applied impartially. Is that something Tibetans and Hans can make common cause for? It ought to be.
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April 28th, 2009 at 6:30 am
Short answer is yes. But let’s not prejudge this. A figure respected for religious reasons isn’t immune from having a weapons cache either. We just don’t know.
April 28th, 2009 at 6:40 am
Yes, and let’s not forget where the source of this article is: the NYTimes. On China, they are a leading smear outlet.
April 28th, 2009 at 6:58 am
The rule of law should absolutely be applied impartially. Otherwise you haven’t got a rule of law. But in this case, application of the law alone would seem fairly cut and dried. Someone on a different thread a while back mentioned that it’s illegal to own weapons in China. So if they found the gun “in his possession”, he doesn’t have much wiggle room, it would seem.
However, a case like this stinks to high heaven of political motivation. So my question would actually be: what’s the proof that it was his gun, and not planted? I wonder how China’s legal system views such niceties as rules of evidence and chain of custody. Or search warrants, for that matter.
April 28th, 2009 at 7:06 pm
Otto Kerner,
I think I’d agree with you that if there is one thing that might unite DL-sympathetic Tibetans and the rest of Chinese – it might be the rule of law.
But I think we need to understand better what we mean by rule of law. If what we mean is more accountability, more transparency, better trained judiciary, less capriciousness in judicial enforcements (i.e. less actions based on whims of powerful officials) – then I think the answer is yes. However, if by rule of law is the concept that individuals have a basic right to fight the state in a secessionist movement – then I don’t think the answer would be yes. There is nothing per se within the concept of rule of law, in my opinion, that checks against “politically driven” attempts to weed out insurgency since such insurgency would be considered illegal.
What do you have in mind when you talk about “rule of law” in the context of Tibet?
April 28th, 2009 at 10:19 pm
To Allen:
“There is nothing per se within the concept of rule of law, in my opinion, that checks again “politically driven” attempts to weed out insurgency since such insurgency would be considered illegal.” – and if he’s guilty of participating in insurgency, then that’s what he should be charged with.
If there are 10 people in Tibet caught with a gun and 130 rounds, and they are all prosecuted and sentenced in similar fashion, then that’s cool.
But if the other nine get off with slaps on wrists, while the lama is screwed for political reasons, then that’s uncool.
And if he was subject to special harassment for political and not criminal reasons; or if he was subjected to unlawful search and seizure; or if there was fabrication and entrapment…then that would make it way uncool, and hardly a shining example of the rule of law at work.
April 28th, 2009 at 11:30 pm
Allen,
In principle, I would say that the concept of “rule of law” is not really distinct from human rights, such as the right to own a weapon (whether that is compatible with being a monk or lama is another question). However, that is not what I was referring to here, I was using “rule of law” in the conventional sense — you put it quite well as “more accountability, more transparency, better trained judiciary, less capriciousness in judicial enforcements” — the nonpolitical side of the law.
April 29th, 2009 at 1:07 am
@Otto Kerner #6
1) “the right to own a weapon” is only recorginzed in US, not most other parts of the world.
2) human rights is used to describe mostly individual rights. The concept of “rule of law” covers many types of rights, even inside a sovereign state.
April 29th, 2009 at 1:39 am
…or if he was subjected to unlawful search and seizure; or if there was fabrication and entrapment…
SKC,
If this report had been about the Northern Ireland seperatists, you wouldve believed it 100%.
but it was about China, though YOU KNOW lot of Tibeten monks and nuns hate han chinese, you still DONT WANT TO BELIEVE IT.
That is not cool.
April 29th, 2009 at 1:50 am
a respected lama from Kardze …
Otto,
What makes him a respected, WHAT HAS HE DONE DESERVE YOUR RESPECT ?
If a native aboriginal in Australia is an active seperatist, and respected by native aboriginal, will you respect him or will you lavish the word ‘ respected ‘ ?
April 29th, 2009 at 4:18 am
Funny. People are getting excited over a case where nobody really knows the truth. The typical stereotypes are added: It’s a lama, so he must be innocent. Or: It’s the New York Times, so the report is a lie.
I’m happy people are being properly defended, that’s all I can say. That holds for any case from IRA and Australian aboriginals to lamas in Tibet and Sichuan.
April 29th, 2009 at 4:54 am
Shane9219,
I don’t know what you’re lecturing me for. Where I live, owning a gun for self-defense is illegal, but I have my own opinions on the subject. I never said that most people share my opinions. This is a digression from what this post was talking about, which is the same thing Allen mentioned in his comment.
Wukailong,
Based on my limited knowledge of the case, it smells fishy. This guy was arrested shortly after the political disturbances last year, but he was not charged with anything related to the disturbances, but with two other unrelated crimes. I don’t know if he’s guilty or not, but I’m glad he’s at least able to get competent representation.
April 29th, 2009 at 5:03 am
@Otto: I agree there are probably political overtones to this case. Indeed, the common ground I think we can all agree upon is that it’s good that he can get proper representation. This phenomenon of “维权律师” is indeed an interesting development in the PRC and a step towards more rule of law as I see it.
April 29th, 2009 at 5:47 am
To Wahaha:
it always amuses me when you pretend to know what I think. In case there’s any ambiguity, here’s a hint: you don’t.
If the case was about a “northern Ireland separatist”, it would have depended on what the separatist was charged with. If it was the identical “gun with 130 rounds”, then it might be believable because “northern Ireland separatists” have been known to pack stuff like that around, and then some. However, I don’t know if such possession in Northern Ireland constitutes a crime. Hope that clears up for you what and how I think.
I imagine Tibetan monks aren’t fond of the CCP; however, I certainly don’t know that they “hate” Han Chinese indiscriminately. And may I remind you that this lama is not charged with hating Han Chinese; he’s charged with possession of a gun and 130 rounds. So even if I believed this particular lama to bear hatred towards Han Chinese, I wouldn’t necessarily or automatically believe that weapons possession would result from said hatred.
Hey listen, if the rule of law applies in China, then I’m sure the prosecutor will start by showing that the police had probable cause. With this, he/she will produce a properly-obtained and properly-executed search warrant. The fruit of this legal search will be the gun and the ammo, for which the prosecutor will show proper chain of custody. “Exhibit A” will have the lama’s prints on it. Perhaps the prosecutor will even call as state’s witness the guy who sold the lama the weapon. That, mon ami, would be cool. I will start holding my breath….now!
April 29th, 2009 at 6:50 pm
@SKC #5,
You mentioned several good points. I agree with some and disagree with some.
I agree that if evidence is made up – then that is really uncool.
But if there is merely extra attention placed on a monk (because of his past subversive political activities, for example) – and as a result of this reasonably placed extra attention it is found that he has violated the law … I don’t have a lot of problem with that – even though some might argue the gov’t should not pay extra attention on the monk simply because of his past political activities.
The concept of unreasonable search and seizure – if you read up on the Constitutional case law – is a mishmash of case laws that is quite arbitrary. The key is not to focus on what should be a reasonable search and seizure – but whether the monk has violated the law.
April 29th, 2009 at 6:53 pm
@Otto Kerner #6,
You wrote:
Hmm … what do you mean the right to own a weapon? My understanding is that many European nations outlaw guns … is that a violation of “human rights”?
And is there a limit to the type of weapons a person may own? Knives? Guns? Assault Weapons?
Also – does the right to own a weapon rest on a deeper right – such as a right to conduct subversive activities against society and to overthrow the gov’t?
These are genuine questions – not tongue-in-cheek questions – that I ask…
April 29th, 2009 at 7:18 pm
SKC,
You cant pretend what is in your mind.
Let me illustrate how stupid Otto’s comment was :
He called Phurbu Tsering Rinpoche’ a respected ‘, who respected him? what does that mean ? well, those nuns and monks respected him, which means they listened to him. and you doubt he had nothing to do with the trouble caused by his followers ? If what he said had no impact on those nuns and monks, what made him ‘ a respected ‘ ?
So obviously, Phurbu Tsering Rinpoche did have something to do with the troubles in that area if he was respected by those nuns and monks, get it ? you can question the law system in China, but the crap like ‘ fabrication and entrapment ‘, give me a break.
Let me remind you : Mao didnt kill no1 in CR, but he was the leader, so he is blamed for CR; Phurbu Tsering Rinpoche was the leader of those monks who caused troubles, so he is responsible for all the trouble caused by his follower. Your stupid logic is that if Phurbu Tsering Rinpoche didnt protest or he didnt touch the guns, then he is innocent or entraped. If so, then Mao is also innocent for god sake.
Do I have to straight things for you every time ? by the way, I am still waiting Otto to give me a reason why the monk deserves his respect.
April 29th, 2009 at 11:49 pm
Allen,
“Hmm … what do you mean the right to own a weapon? My understanding is that many European nations outlaw guns … is that a violation of ‘human rights’?”
Yes, in my opinion; but not in the opinions of most Europeans, as far as I can tell. This is a digression from the topic of post, because, as I mentioned, I did not have that sort of thing in mind when I said “rule of law”. So, I choose not to further the digression by answering your remaining questions.
April 29th, 2009 at 11:59 pm
@Wukailong #10,
You wrote:
I’d like to add: It’s from xinhua news – it must be a lie. It’s from the Chinese gov’t – it must be propaganda.
April 30th, 2009 at 12:27 am
With regard to monasteries having weapons caches, it’s not really that strange if you know the background. In the old days each monastery had an army, and in past disturbances they did have some smuggled and home-made weapons. According to some claims from those guys in India, they buy illegal weapons from corrupt local police.
While I certainly don’t know the details of this case, I believe these things are more than meets the eye. Politically incorrect monks have been dealt with in many ways, including suspension of pay, or removal from their monastery, etc. There is no need to frame them with weapons.
April 30th, 2009 at 1:13 am
“With regard to monasteries having weapons caches”
I’m sorry, who besides you was talking about “weapons caches”? This man is accused of owning possessing one firearm and bunch of rounds for it.
April 30th, 2009 at 2:37 am
@Allen (#): “I’d like to add: It’s from xinhua news – it must be a lie. It’s from the Chinese gov’t – it must be propaganda.”
Sure, they just hadn’t turned up in this discussion yet! 😉
I would say that there is probably truth to this claim on both sides. That is, especially in discussions between people rather than the Chinese government and the Western media, there are propagandistic pieces both sides have learned from their respective backgrounds that keep coming up. Since the truth is hard to come by, people from both sides just tend to echo what they’ve learned, and for that reason discussions tend to be futile. Perhaps learning each other’s arguments is a good first step.
April 30th, 2009 at 3:23 am
Otto Kerner,
As you can see, I was speaking generally about the history of monasteries. Just saying, it’s not that unbelievable for monks to be armed.
April 30th, 2009 at 4:19 am
@Allen,
If, by any chance, you become the president of China and chairman of CCP with power of general command of PLA in hand, then you will be a perfect live Stalin+Hitler. Oh, God forbidden such thing happen!
April 30th, 2009 at 4:40 am
Nimrod,
You are quite right, it’s not at all unbelievable, in view of history. I meant that one could raise a reasonable question about whether monks ought to do that (on the face of it, I doubt that it is compatible with the monastic code — on the other hand, not all tülkus are monks, so the monastic code per se would not necessarily apply to this particular person).
April 30th, 2009 at 5:23 am
@Erlang #23,
Don’t worry about that nightmarish scenario. I can talk the talk here. But when it comes to walking the walk – god knows – I am no politician! 😉
April 30th, 2009 at 5:37 am
“it’s not at all unbelievable, in view of history”
The Knights Templars
http://www.newadvent.org/cathen/14493a.htm
‘The Knights Templars were the earliest founders of the military orders, and are the type on which the others are modelled… Their castles are still famous owing to the remarkable ruins which remain: Safèd, built in 1140; Karak of the desert (1143); and, most importantly of all, Castle Pilgrim, built in 1217 to command a strategic defile on the sea-coast. In these castles, which were both monasteries and cavalry-barracks, the life of the Templars was full of contrasts. A contemporary describes the Templars as “in turn lions of war and lambs at the hearth; rough knights on the battlefield, pious monks in the chapel; formidable to the enemies of Christ, gentleness itself towards His friends.’
April 30th, 2009 at 5:38 am
To Allen #14:
“But if there is merely extra attention placed on a monk…” – I agree. I have no problem with the monk getting “special attention”. We do it all the time with “watch lists” for suspected criminals and terrorists etc. And all this time, I keep thinking back to Al Capone…maybe it’s because I recently watched the Untouchables for the thousandth time…but I digress. Ol’ Al was enemy #1 because he was a gangster, and not because he was a tax-evader. But ultimately, he went to the slammer for the latter. And bottom line is it’s still one less big gangster on the prowl. So if this lama was considered a separatist threat, but they have to get him on a weapons charge, so be it. My point is simply that Al did evade taxes; the government wasn’t making it up. So hopefully, this weapons charge is also not “made up”, and if he is convicted, it is only after he is afforded a vigorous defense.
You’re the lawyer, and not me. My point about the procedural issues simply goes to my preference that, if the Lama broke the law, hopefully the government hasn’t done likewise in any overzealous effort to prove it.
To Wahaha #16:
“You cant pretend what is in your mind” – actually, if something is already in my mind, pretending is no longer necessary; it is what it is. So once again, no idea what you’re talking about. I’ve lost count of how many times that has happened.
Listen, if you’re on a trip about Otto referring to the Lama as “respected”, that’s your cross to bear; it’s most certainly not a catfight that interests me in the least. Maybe you should take it up with him.
“you can question the law system in China” – which is precisely what I have done and will continue to do; “but the crap like ‘ fabrication and entrapment ‘, give me a break” – if China’s law system is far from perfect, are activities like “fabrication and entrapment” inconceivable? I’m not saying that’s what China did; I’m saying I hope she didn’t do it. If China committing such activities is in fact inconceivable to you, then you have far greater faith in China than me…but then we both knew that already.
Remember also that this lama is accused of weapons possession; not separatist activities or inciting “trouble”. So if he is to be convicted, it should be on proof that the gun and the ammo were his; all the other stuff has absolutely no relevance. Neither of us are lawyers, but if that point is too complicated for you, maybe Allen can help you out. Don’t fret, I can understand that, when the “fire is in front of your eyes” (Cantonese phrase), it can obscure your view of reality. Hope this summary helps.
April 30th, 2009 at 6:07 am
@SKC #27,
About procedures – just want to clarify that from my perspective, you definitely have a point about trying to be uniform. I just prefer to focus on whether the lama is guilty or not – irrespective of procedure.
In the U.S. – procedure is very important because it has been used as a tool to intimidate as well as support unequal application of law based on race, gender, etc.
In this particular case, if the police is putting all lamas and all ethnic Tibetans on special watch – just because they are lamas and ethnic Tibetans – then yes I’d have a problem. The reason is not because the U.S. Constitution say so, but because it would certainly lead to social disharmony.
However, if the police is putting certain lamas and ethnic Tibetans on special watch because of past (political) history, I personally don’t have a problem – though a lot of my lawyer colleague here in the States would probably do.
April 30th, 2009 at 6:38 am
To Allen,
hey, I thought the key for lawyers wasn’t whether someone is guilty or not, but whether you can prove someone is guilty or not. 🙂
I have no problem with watch lists either, as long as there’s just cause for inclusion in such a list, and being watched doesn’t equal being framed etc.
And going back to the initial point about rule of law, I don’t think it works unless it’s applied equally, in China or anywhere else.
May 1st, 2009 at 10:37 pm
@SKC #29,
You wrote:
Close … but not quite right.
The times when lawyers really get paid the big bucks is whey they can raise sufficiently reasonable doubt to get obviously guilty people off the hook…! 😉
P.S. That’s just a joke. I am not implying in any ways whether the lama in this case is guilty or not. For me personally, I’m presuming him innocent till proven guilty.
May 2nd, 2009 at 12:39 am
To Allen:
“I’m presuming him innocent till proven guilty.” – that makes 2 of us.
May 2nd, 2009 at 3:39 am
The abbot is charged with two things: weapons and embezzlement.
@Wahaha
Otto probably could have kept better in tune with the NYTimes story if he used “revered” as the NYTimes did. But revered/respected… 6 of one/half dozen of another. Heck, I assume that even the Pope is still respected and revered in many circles even after his stupid condom comments in AIDS ravaged Africa. So why would we be surprised that any senior religious figure could be respected and/or revered. You’ve got to stop biting at silly semantics. It only makes you look just as silly.
@SKC, et al
What I find fascinating is the disconnection between a perspective firmly seated behind foreign colored glasses and what seems to be key legal issues in China. There is mention of evidence but what is evidence. Evidence is defined by a system of rules, the law. Even the concept of a proper search is defined by the law. How does it work in China? Since I believe that most of you don’t really know how it works in your own country, it would be a pretty safe bet that you’d be only making wild guesses on how it works in China. Now that would be a blog posting worth reading.
As far as the rule of law debate goes, it is a positive development that the abbot has Han defense lawyers. The role of the defense lawyer in China is of keen interest (another good topic for a blog posting). Another observation is the apparent lack of a confession. The role of the confession is a huge issue in the positive development of the rule of law in China (blog posting).
I do hope, as far as the rules allow, that the abbot can be given the best judicial process available.
For 老百姓, however, the abbot’s case is a bit removed. He is concerned with ending up beaten or dead during interrogation or what would happen to him if he doesn’t confess or, if he’s got the money/关系, who does he need to talk to to make the matter go away. Corruption, representation, and process. If you want to talk about law in China, I think those are some key topics.
May 2nd, 2009 at 5:26 am
@MutantJedi #32,
I completely agree – if we really want to dig into what rule of law really is – we have to dig into details, including the intricacies of rule of evidence. In some ways, what we have commented here is kind of superficial. What I have been arguing here is really only about politics – not true issues of rule of law as it relates to the average Chinese citizen…
May 2nd, 2009 at 6:36 am
To MJ:
I can’t speak for anyone else. But I’m not a lawyer. So my understanding of the concepts in question is only as good as can be reasonably expected of a layperson. And I absolutely agree that my comments are from the perspective of a Canadian, and that understanding may have no relevance as it applies to a case in China. To have a truly informed discussion as you suggested, we would require the expertise of a lawyer from China, and in fact probably one from Sichuan province, since there may be inter-jurisdictional differences in law in China much like there are such differences between the various provinces in Canada and the various states in the US.
But while I agree wholeheartedly with you with respect to your principle (that one shouldn’t speak of that about which one knows nothing), it would be a hindrance for most people even on this blog when it comes to most things relating to Tibet. And based on the vigorous participation in most Tibet threads, it seems most haven’t allowed this principle to slow them down any.
So if I may rephrase my general concerns about this case, it would be that “the prosecutor (should) start by showing that the police had probable cause….(then) produce a properly-obtained and properly-executed search warrant…(by which) the gun and the ammo (were found), for which the prosecutor will show proper chain of custody. (This) “Exhibit A” (may even) have the lama’s prints on it. Perhaps the prosecutor will even call as state’s witness the guy who sold the lama the weapon.” And hopefully all of this, or the equivalent thereof, will have occurred in accordance with Chinese law.
I will say, though, that the abbot/lama shouldn’t need to hope for the best judicial process available. If China is to have the rule of law, there need only be one judicial process, and that same judicial process should be available to one and all. And hopefully, that judicial process will not include “enhanced interrogation techniques”, and any process will be of the “due-“, and not “guanxi”, variety.