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.
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|
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.
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.
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.