By Refusing to Accept Subpoena, the Chinese Communist Party Violates International Convention, Plaintiffs Request Judgment by Default (Photos)
(Clearwisdom.net, August 18, 2003) About a year ago, more than 50 Falun Gong
practitioners filed a lawsuit in the Washington DC district court against
China's Ministry of State Security, Ministry of Public Security, and CCTV,
charging the defendants with harassing Falun Gong practitioners in the United
States. (See article posted on Clearwisdom.net on April 5, 2002, U.S. Falun
Gong Practitioners Hold Press Conference in front of the U.S. Federal Courthouse
in Washington DC to Announce the Lawsuit Against Three P.R.C. Ministries
(Photos), and article posted on June 1, 2002, Full
Text of Complaint Against Three Chinese State Entities).
Now more than a year later, we have heard there has been some new development
with the case. The Chinese government has refused to implement the International
Convention and go through the legal process of service. At present, the
plaintiffs submitted a request to the court, requiring judgment by default. U.S.
Federal Court Judge Urbina is anticipated to make a ruling on this matter.
Reporters of Epoch Times came to interview the plaintiff's attorney Martin
McMahon. Below is the record of the interview.
Reporter: Mr. McMahon, thank you for coming to our show.
McMahon: My pleasure, my pleasure.
Reporter: Okay, our first question is: about a year ago, you as the legal
counsel filed a lawsuit accusing the state security, the public security, and
CCTV in China of harassing Falun Gong. I want to know, now a year later, where
this case is, and what are the latest developments.
McMahon: Okay. When you file a lawsuit in an American court, you are
obligated to serve the lawsuit on the people that you are naming as defendants
in the lawsuit, and it is true that we named those defendants you've referenced.
So, we have attempted on a total of five occasions to what is called "serve
legal process" on these entities in China. That is, we've sent various
documents to Beijing, to the Ministry of Justice, and they sent the documents
back. And instead of serving the process--for example, on CCTV--they didn't do
it, they sent it back. So, that's where we are with respect to those state
instrumentalities we've named in the lawsuit. They've basically refused to
participate in the lawsuit; that's the status of things. And as a result, we are
in the process of applying for a default judgment against CCTV, the Ministry of
Public Security, and the Ministry of State Security.
Reporter: So, you're asking the court to have a trial with the absence of the
defendant.
McMahon: Yes. The process is, if the court would enter an order saying that
for these three defendants, the Ministry of Public Security, the State Security,
and CCTV (China Central Television), a judgment would be entered against them.
At some point, the judge though, would have to hold a hearing to enter a damages
award, and at that juncture, various practitioners would have to come into court
and testify in front of Judge Urbina as to what their damages were, and if Judge
Urbina believes them, he would, after the hearing, enter a judgment for a
certain sum of money. So, that is permitted under the law, as long as you make
sure, and we've done this on five occasions, that these defendants are on notice
of what's going to happen.
Reporter: Okay, so I would like to go back to more basics about what this
lawsuit is about. At the press conference when you filed this lawsuit, I heard
you say, "The Chinese government stole our Constitution, and we want it
back." What do you mean by this? What is this lawsuit really about?
McMahon: Well, I used that in the sense that Chinese nationals and
Chinese-American citizens have fundamental rights under our Constitution and our
Bill of Rights. One of them, for example, is the right to peacefully assemble. I
feel that the Chinese government stole our Constitution, or my clients' rights
under the Constitution, because when they attempt to peacefully assemble, they
get beaten up, they get threatened, they end up in the emergency room, so they
can't even exercise a fundamental first amendment right. I would perhaps just
read from our summary of the lawsuit to give you an overview.
"The practitioners are desirous of being free to peacefully assemble,
feel safe in their homes," their apartments have been burglarized.
"Talk with their friends without fear of having the conversations
recorded," some of these folks have had their conversations played back at
12 midnight at their house. "Pursue their business and employment interests
without worrying about being fired or losing their business simply because they
are practitioners or associated with practitioners, and otherwise conduct their
lives free of physical intimidation, threats of bodily harm, even murder should
they continue to practice their spiritual discipline." So, this summary is
actually a very good overview or statement. The bottom line is that
practitioners should be able to walk the streets of Washington like anybody
else, and they can't, simply because they are Falun Gong practitioners.
McMahon: Well, America was founded on the basis of a lot of people leaving
England, for example, because of religious persecution, and the Bill of Rights
and the Constitution incorporate vital rights that the English citizens had in
the 10th and 11th Centuries. So our entire jurisprudence,
our body of law, is premised on these fundamental rights in the Constitution,
that you can go out here on Pennsylvania Avenue and demonstrate against the
president or say that the country is pursuing a wrong policy in a foreign area
or something else. So, the Constitution is terribly important, and this is not
just about Falun Gong practitioners. This is a foreign government, through its
instrumentalities, that has decided to launch a criminal enterprise here and
strip my clients of fundamental rights under the Constitution. So, it's about
the practitioners in that sense, but no foreign government should have the right
to interfere with some American citizens' or Chinese nationals', in this case,
rights to peacefully assemble or to live free in their homes. So, the
Constitution is terribly important.
Reporter: So, how did you get involved with this lawsuit?
McMahon: Well, I've done a lot of interesting civil rights suits over the
years, including RICO suits. This is, "Racketeering Influence and Corrupt
Organization"; everyone calls it RICO. And, I have always been interested
in representing people who feel that their rights have been violated in some
means, perhaps by the government, or perhaps by some other entity, and I have a
long history of that. So, I interviewed the Falun Gong practitioners on a number
of occasions, to satisfy myself that they really had experienced these
situations, and I was convinced because this stuff is happening out in San
Francisco, it's Los Angeles, it's Chicago, it's Washington D.C., Virginia, it's
New York City. You know, how could all this stuff happen? And then I look at
police reports, for example, so I felt very comfortable, after getting to know
the practitioners and hearing these detailed stories, and our lawsuit, I forget
what page it's on, but--here it is--starting on, I think, 21 or 20. It just
literally details all of the specifics of the deprivation of the Constitutional
violations. And I felt very impressed that people had a record that on January 4th,
2002, this is what happened. So, I interviewed the practitioners, and they
interviewed me, and we felt very comfortable going forward. I felt that it was a
very solid lawsuit.
Reporter: So this lawsuit, when people refer to it, they always mention RICO,
so what does this legal term mean?
McMahon: Well, RICO was enacted many years ago to address a problem that was
associated with the Mafia or organized crime. Organized crime would use various
tactics, like breaking into somebody's apartment, threatening somebody with
bodily harm, threatening to kill somebody, doing any number of bad things, if
you will. And people would be threatened by that and they would agree to go out
of business. For example, some of the Mafia did things to erase competition in
the trash business. So, Congress enacted a statute designed to preclude using
the kind of tactics that we have put into this lawsuit to achieve a deprivation
of somebody's Constitutional liberties, or their rights, and to allow somebody
to get three times the amount of monetary damages that they sustained. So, it's
a good statute in terms of having application here, because of the criminal
enterprise that the Chinese government has launched over here. And we have laid
out two different criminal enterprises under RICO, which is kind of technical,
but it's in the lawsuit, and we believe there's a good basis for that.
Reporter: As I understand, for a lawsuit to go through, you have to serve the
defendant. How did you do that for the defendants in China?
McMahon: There is something known as the Hague Convention. The Hague
Convention has various protocols. One of the protocols deals with international
service of legal process. The Chinese government, the PRC, has signed on to the
Hague Convention, and when a country does that, what that means is that if some
Chinese businessman in Beijing, if an American company had a contract with him,
that businessman could send a lawsuit to our Department of State, and the
Department of State could then go serve it on the person he wanted to sue.
That's the way international legal relationships are monitored and developed,
and worked out.
So, we followed the Hague Convention, and specifically we have a form I-94.
The obligation is to take the original lawsuit, two copies in English, two
copies in Mandarin Chinese, and then we Fed-Ex'ed that whole package to the
Ministry of Justice in Beijing, and when they sent these documents back, they
have never complained that we have failed to comply with the Hague Convention.
They agree that we've done everything proper under the Hague Convention, they
just say that they're not going to participate in the lawsuit. So, the Hague
Convention is the means whereby you serve legal process in the international
court, and in an international area. China has also been admitted to the World
Trade Organization, and I think one of the conditions there is that they comply
with international treaties, and that's what the Hague Convention is. So, in my
opinion, they are using the claim of foreign sovereignty to avoid having to come
into the federal court in America, and that's not what you're supposed to do if
you signed up under the Hague Convention.
Reporter: So, if I understand you right, you sent this lawsuit, all the legal
paperwork, to the Chinese central authority, according to all the instructions.
And, the defendant basically is the Chinese government--the two ministries and
the Chinese Central Television. So, in your opinion, has that already been
served to the government?
McMahon: Well, you want to be technically correct, and we're in Federal Court
in front of a very fine judge, Judge Urbina. You want to do everything
technically correct, but we have served these ministries by serving the Ministry
of Justice. Now, in effect, the PRC is these instrumentalities, they may claim,
I don't know. But, we haven't named the PRC as a formal defendant. We've named
the Public Security, and, I think the Official Security is the other one, and
we've done everything correct with respect to them. So, we're not suing the PRC;
we're not challenging the political sovereignty of the PRC. We're saying that
under the law we can sue Chinese instrumentalities because of the extensive,
among other things, commercial activity that they've engaged in here in America,
and it's in the lawsuit. And also, because of what we call tortious activity,
which is exhibit B I believe, which is another way to secure--this is commercial
activities abroad--they would do things abroad, which impacted my clients here
in America. So, that's another way to be able to sue instrumentalities under the
Foreign Sovereign Immunities Act. So, we're not challenging the PRC foreign
sovereignty, we're saying we're entitled to sue certain instrumentalities
because of what they've done here in America. And, of course, the
instrumentalities can hire a law firm and file a motion to dismiss and say that
the court doesn't have jurisdiction. That's how it's normally done, but they're
choosing to avoid doing that.
Reporter: So, this lawsuit is all about activities inside America.
McMahon: Yes.
Reporter: Right, so not inside China. Now, you tell me that the Chinese
government is trying to hide under the terms of immunity or national security.
Now, people are always talking about how China has a fast-growing economy, and
their international power is also growing very fast, and China always wants to
play a bigger role on the international stage. But, to do that, the
international society will want China to behave like a big player. In your
opinion, is their dealing with this lawsuit in particular really following the
norm, the rule of law?
McMahon: I guess it's not so much a big player, but if you are a member of
this world, and you're a nation of laws, and they have the same Constitution,
practically, that we do--it's in exhibit C here--you're supposed to behave in a
manner consistent with international law, by signing the Hague Convention, that
protocol, and some other things. I think they have not acted as consistently
with international law as an international government of some significance. I
would not expect the United States of America to refuse service of process
because some Chinese businessman wanted to sue somebody in America. You see,
that's what it's all about. I don't know about the term "big player"
but they're certainly not acting like the international power that they are. To
me, they're violating international treaties.
Reporter: This lawsuit is in America, so the trial will be according to
American law. If these activities happened in China, would that be violating
Chinese law?
McMahon: Yes, we added on here this exhibit C; we went through the Chinese
Constitution and the Chinese Criminal Code, and none of the stuff that we're
complaining about in this lawsuit is not in the Chinese Constitution or the
Chinese Criminal Code. In other words, if the Chinese government would only
adhere to their own Constitution and their own criminal code, all of the things
that we say in here violates their Constitution and violates their criminal
code. So it's important; not only are we not jeopardizing their foreign
sovereignty, we're not trying to hold them to standards that they themselves
don't already hold themselves to in their own Constitution.
Reporter: Why did the Chinese government come to the U.S. to do those things?
McMahon: Well, we have a document in our file, and I know we cite it in here,
but Jiang Zemin, maybe 30 days after 10,000 practitioners appeared in Tiananmen
Square [Editor's note: Mr. McMahon is referring to a peaceful protest in
front of Zhongnanhai, the Chinese leadership compound] to protest something,
I think he got very upset about that, and he issued an order, and he basically
said, we must eradicate the Falun Gong, here in China, and in America. And he's
done his best, through these ministries, to eradicate the Falun Gong movement in
America, and my point is that no foreign government has the right to do that.
You can't come into America and use these Mafia tactics, and deprive my clients
of their fundamental rights and liberties. They should have the right to
peacefully demonstrate down by the Mall. Every year when they do this, there are
people from the Chinese Embassy with their cameras, and they're recording
everyone that shows up. They have an international databank of all
practitioners. I'm sure my name is in it. And if you're a Falun Gong
practitioner, you can't go into China on a business trip. The only one that's in
the lawsuit here, but this lady in New Jersey, an auditor, she was precluded
from going into China. She's the only Chinese-speaking member of this accounting
firm, and they wouldn't even let her in. So, I feel very positive, and I feel,
again, that no government has the right to interfere with an American citizen's
rights of peaceful assembly, or anything else.
Reporter: So at the beginning, you said that you already filed a motion to
ask for a default judgment. If the court accepts your proposal, what will
happen?
McMahon: Well, we still have an obligation to send that order in Chinese to
Beijing, to the Ministry of Justice and say, this is what the judge has decided,
and the judge will set that down for this hearing at some juncture, but we still
have an obligation to inform Beijing of what we're doing. They could then come
in and challenge this in some way if they want to, but otherwise we'll go ahead
and hold the hearing.
Well, at this time, because we're making this application for a default
judgment, hopefully the judge will schedule a hearing in terms of--first he has
to enter judgment for us, then he has to take testimony from people, the
plaintiffs, in this case, and ask them, "How have you been injured by this
conduct." At some juncture, if he sets it down for such a hearing,
practitioners would come to court, take an oath to tell the truth, and explain
how they've been injured by various conduct. For example, there was a gentleman
in Chicago that was savagely beaten up; he had his car set on fire, and he would
testify in front of the judge that "this is what happened to me." The
judge would hear all this testimony--perhaps it would take an entire day, I
don't know--and then enter a judgment in the specific amount of a monetary
number, and say that this judgment is now entered, so the practitioners have
been awarded X dollars as a result of this hearing. And, that may occur in the
next two months.
Reporter: Besides sending you the letter telling you they refuse to fulfill
your request, what else did the Chinese government do?
McMahon: Well, unbeknownst to me, and unbeknownst to my clients, somebody in
the Chinese government, it's interesting, sent a request to the Justice
Department, which basically was challenging our ability to proceed with our
lawsuit. In other words, they're sort of criticizing us for using the court
system, and I found that very not only interesting, but unusual. That is, when
you belong to the Hague Convention and you don't complain that we have violated
the Hague Convention--we've consistently adhered with it in all of our
communications--it was funny to me that they would go into the Justice
Department and say, "Do something about this lawsuit." You just don't
do that. You use the Hague Convention, you come in with a law firm, you file a
motion to dismiss and say, "This court has no jurisdiction over us."
You know, you do what you should do consistent with international law. You don't
write a letter to the Justice Department complaining about our lawsuit.
Reporter: So, in your view the Chinese government should actually come to the
court themselves.
McMahon: Yes, and state what their position is to the judge, and the judge
can decide that--for example, we've alleged a lot of commercial activity that
has been engaged in, here in America; the Chinese government can dispute that.
They can hire a law firm and challenge the jurisdiction of the court. But, I
can't see how they can sit back and kind of thumb their nose at the American
judicial system, which is what they're doing.
Reporter: So, as you said, RICO was originally designed for the Mafia, those
kinds of criminal activities.
McMahon: Yes.
Host: So you've basically charged the Chinese government with acting like the
Mafia in the U.S. And now the Chinese government, instead of going to court,
wrote a letter to the Justice Department. What kind of effect could that letter
have?
McMahon: Well, I don't think it will have any effect. I only found out about
it because the Justice Department sent it to me; I don't think it will have any
effect.
Reporter: So, what's your outlook on this case?
McMahon: Well, I was very positive when I filed the lawsuit; I still remain
very positive. It's been a long time, but it's not because of us; it's because
the Chinese government doesn't want to engage us--or the instrumentalities we've
sued--doesn't want to come into court and defend it. And I can see why, when I
reread some of these; we make some pretty nasty allegations against them--that
they've set cars on fire, they've beaten up people, they've broken into
apartments, they've threatened people, even attempted arson, threatened to burn
a hotel down. So, I feel very good about it; I just wish they'd come into court
and we could get this litigation going. But if they don't, we're going to move
for a default judgment. So, I feel very confident, because you see, when they
send back these documents to us--we're now on our fifth set of documents--they
always maintain that we've complied with the Hague Convention; they don't
challenge that in any way. So, if you don't challenge that, well then, you have
to come into court. Why else do you sign off on the Hague Convention? So, it's
convenient for the Chinese government, when they're trying to get into the World
Trade Organization, to say all these nice things about international community
and how they'll comply with this and that. It's another thing now though, that
they're facing this lawsuit. So, maybe they don't like the Hague Convention so
much, but you can't do that. Once you join the Hague Convention or adopt it,
you've done that.
Reporter: So, you think things are going positively.
McMahon: I do, and I'd like to see them come into court. I'd like to see them
contest these allegations, and deny they beat up somebody in Chicago, and they
beat up somebody in San Francisco, and they beat up somebody in New York. I'd
like to see them come in and contest these allegations.
Reporter: It was very nice talking to you, and good luck.
McMahon: Thank you. I enjoyed the same.
Apartment of one of the plaintiffs was broken into and wrecked.
Car of one of the plaintiffs was deliberately set on
fire
One plaintiff's car window was deliberately smashed
Chinese version available at
http://minghui.ca/mh/articles/2003/8/17/55776.html
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