He Jiahong 何家弘: Working Between Law and Literature

The following interview was conducted by Elisa Nesossi, a CIW Post-doctoral Fellow working on Chinese justice.—The Editors

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Professor He Jiahong

He Jiahong 何家弘 is Professor of Law and Faculty Director, Institute of Evidence Law at the Law School of Renmin University in Beijing. From 2006 to 2008, he was part-time Deputy Director, Department of Dereliction of Duty and Infringement of Human Rights with the Supreme People’s Procuratorate. He has also written crime novels several of which have been translated into French, English, Italian and Spanish.

I first met Professor He in May 2012 at the Law School of Renmin University in Beijing. When he visited Australia some months later, I had the pleasure of interviewing him. Our conversation was wide ranging and during it Professor He spoke about his life as a law professor, writer, husband and, more recently, grandfather. He described himself as both a Chinese person and a ‘citizen of the world’. He commented that through his crime novels and their protagonist, the lawyer Hong Jun 洪钧, he hoped to teach mainland Chinese readers about the law.Elisa Nesossi

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Q: You are a prolific writer: you write crime novels, academic works, poetry and you maintain a blog. Clearly, all four deal with law, society and life in contemporary China. While academic writing is part of your profession and livelihood, the other three are not. What do you seek to express through your literary efforts and in your blog? To what extent do you see your personal story as reflecting broader Chinese realities?

A: You are right, I do write about very different things. Writing books and academic papers about the law is part of my job. However, I have to admit that I find writing novels far more enjoyable. Writing a blog is new for me.

Sometimes, I feel that I am doing something for society through my writings, that I am not merely saying what I want to say.

A classmate of mine who later studied at Oxford once suggested that I shouldn’t waste my time by writing novels. He said that since China needs good jurists, I should devote myself to writing about the law. His remarks made me reflect on the possible ways of combining my professional duties with my passion for literature. Because writing novels beats writing academic tomes any day; it’s really difficult to strike a balance between the two.

Academic law books have a relatively short life span. Law changes quickly in China and the books that I wrote twenty years ago have become irrelevant. In fact, they are well and truly history. Everyone knows that this type of academic literature becomes obsolete after few years.

Conversely, my novels enjoy a long shelf life. Today, people in China are not really interested in stories about the past and they are indifferent to the Cultural Revolution. Nevertheless, I would like them to rediscover their history and to help preserve our cultural memories. Sometimes, I feel as though I am still living in the 1980s and 1990s. Those years are important to me and a source of powerful memories.

Chinese readers of my generation identify with my life story because we had the same experiences in the 1960s and 1970s. These shared experiences were particularly intense during the years of the Cultural Revolution and they became our common past. During that time, I was sent to work on a farm in Northeast China, in Heilongjiang province, where I lived for eight years. In 1969, I was sixteen and had received only six years of formal education.

I was lucky to become a law student and my good fortune came from my wife and her family. I married my wife more than thirty years ago – last year we celebrated our thirty-first anniversary! I met her when I was working in a construction company. She was a doctor at the company’s clinic and I was a plumber. Not surprisingly, her parents did not want me. At that time, my aspiration was to become a writer but her parents wanted me to sit the national university entrance examination. The exams were extremely competitive but I studied very hard. My wife did not push me to do the examination. She said that if my passion was to write novels I should do that but her parents were unrelenting. They put her under a lot of pressure. At the time, I found real pleasure in writing short stories but I knew that the only way for me to be accepted by her parents was to obtain a degree. In 1979, I studied very hard for several months and passed the exams. And so I was admitted not only to university but into my wife’s family! Yes, I passed the exams but my score was not very high and so I could only choose from a narrow range of subjects. That’s how I ended up enrolling in the law course at the First Branch of the Renmin University.

After becoming a law student, I gave up my dream of being a writer. The more I studied law, the more interested I became in the subject and the more I understood the importance of law for China. I received both my Bachelor’s degree and Master’s degree in Law from the Renmin University. I then became a teacher in the Department of Law at the university. Later, I went to the US to study law and, in 1993, I obtained my doctoral degree (Doctor of Juridical Science, SJD) from the Northwestern Law School (Illinois). My dissertation was published in English.

When I returned to China, I practised as a lawyer and did an internship in both the Office of the People’s Procuratorate and at the Public Security Bureau in Beijing. I had also begun to accumulate cases and legal materials and I started to think about the different facets of law in China. My desire to write novels also returned. I started to think that novels are more useful than law books because they are read more widely.

At first, I wanted to write traditional crime fiction: traditional in the sense that the members of the police force would be the main characters. This has always been the case in Chinese crime fiction. However, because of what I had experienced in the U.S., I started to think about the important role that lawyers could play in the investigative process.

In 1995, my first novel Deep Source of Sentiment 情渊 was published in instalments in the China Youth Daily 中国青年报. I must admit that I was extremely proud of this novel because I wrote it in my spare time. The novel was later republished by the Masses Publishing House 群众出版社 attached to the Ministry of Public Security. It was then that the title of the novel was changed to The Mad Woman 疯女. After my first novel was published, I immediately had ideas for new ones and I started writing frenetically. Indeed, from 1995 to 1998, I published five novels which were directly inspired by my personal and academic experience.

Over the next eleven years – from 1998 to 2009 – my academic career absorbed my energies completely and I wrote a large number of law books. In 2007, a selection of my work – including my essays on law and my novels – was published in fifteen volumes.

Notwithstanding my literary silence for this eleven-year period, my passion for literature never slacked. I soon began to think about adapting my legal knowledge for fiction. So, in 2009, I decided to revise the novels I had written in the mid-1990s. I included more legal details and gave them new titles. The protagonist in four of the five novels I have written is the lawyer Hong Jun. The five novels are: Blood Crime 血之罪, recently published by Penguin Australia under the title Hanging Devils, Sex Crime 性之罪, The Crime of X X之罪, Innocent But Corrupt Officials 无罪贪官 and An Innocent Killer 无罪谋杀.

Blood Crime

Hanging Devils is about wrongful conviction. Sex Crime is focussed on criminal procedures, as I wanted the novel to introduce readers to facts about the criminal process in China and the changes introduced by the 1996 revision of the Criminal Procedure Law. The Crime of X is heavily influenced by my work from 2006 to 2008 as part-time Deputy Director of the Department of Anti-dereliction of Duty and Infringement on Human Rights at the Supreme People’s Procuratorate. The novel revolves around the issue of dereliction of duty and the weak authority of the courts in China. The fourth book is about corruption and a revised version of the novel that I wrote when I lived in Hong Kong in 1996. Indeed, the events narrated in the story are based on what I experienced in Hong Kong and in a city in Guangdong province (I’d prefer not to say where). In the novel, I make a few recommendations about how the government can fight the plague of corruption in China. My latest novel focuses on the law of evidence. It underwent heavy revision: I removed many technical details about evidence gathering and crime investigation that would not interest my readers.

The characters of your novels are ethnically Chinese, mainland-born and educated. Yet, they display cosmopolitan traits. For instance, the famous lawyer Hong Jun is described as someone at home in both Chinese and Western cultures. Not only does he prefer drinking coffee instead of tea, he also favours the attitude of the Western criminal lawyer. In other words, he is proactively involved in the investigation of cases – while we know that criminal lawyers in China still face significant difficulties in investigating cases. Is Hong Jun a character based on your personal experience, as many readers have assumed? And, in your portrayal of Hong Jun, are you offering a ‘model’ for Chinese lawyers to aspire to? Given the political constraints that Chinese lawyers face, how could someone like Hong Jun practice law effectively? In what ways do you use the character Hong Jun to point to the challenges of legal reform in China?

Many readers think Hong Jun is me. Although he has some of my personal traits, Hong Jun is definitely not autobiographical. We can say that this character reflects some of my life experience but he is not me.

I hope Hong Jun can be an inspiration to lawyers in China today. I am convinced that Chinese lawyers will play a very crucial role in establishing the rule of law in my country. In my novels, I present Hong Jun as a ‘gentlemen lawyer’, a junzi 君子. I want to tell lawyers that practicing law is not only about making money; I want to remind them about their ethical responsibilities toward society. China needs ‘gentlemen lawyers’ like Hong Jun not only to advance the rule of law but also to salvage the reputation of lawyers in the eyes of ordinary people.

China’s inquisitorial tradition has meant that lawyers have not played a significant role in criminal justice. In 1996, under the influence of the US, the first amendment of the Criminal Procedure Law introduced elements of adversariality into the Chinese system. The role of lawyers was thus partially strengthened. However, I don’t think this reform was particularly successful as it resulted in an unsatisfactory hybrid of the two systems. It was an experiment that, in my view, did not generate many positive results.

However, we can see that since the onset of reforms, lawyers have become more independent from the state. Today, they are no longer state workers as they were during the 1980s. This independence is also reflected in their way of thinking.

Let me clarify for your readers: When I talk about lawyers, I use the term in the narrow sense, including only defence lawyers and excluding officers of the court including prosecutors and judges.

Prosecutors from Jiangsu province

Last September, China Central Television (CCTV) broadcasted a special event: a competition between Chinese prosecutors and lawyers. The event was huge and was attended by members of the People’s Procuratorate, the People’s Courts, the Ministry  of Justice, the All China Lawyers’ Association, the Ministry of Public Security and legal scholars. Many good lawyers and prosecutors were selected for the debate panels. Together with several other famous Chinese law professors, I was invited to act as a referee.

The debate revolved around the following issue: Today in China, not many lawyers choose criminal defence work because of the difficulties they face during the different stages of the proceedings. Their position, relative to the prosecuting agency, is weak. This means that good lawyers, those who are very professional, prefer other areas of practice that are less risky and more rewarding financially. I tried to explain to the competitors that, in my view, this situation hampers the long-term prospects of criminal law as prosecutors will encounter defence lawyers who are neither highly skilled nor talented.

At the end, I told the competitors about my experience with badminton. I began playing badminton with my wife, my students and my close friends. Needless to say, I felt that my playing skills were great as I won very easily. However, I was not progressing and I realised I couldn’t improve unless as I started playing with better players.

When I told this story, the prosecutors participating in the competition were puzzled by my analogy. I explained that the Chinese legal system needs both good lawyers and good prosecutors as their skills are mutually dependent. Without good defence lawyers there would not be good prosecutors. Thus, our legal system would not progress and the police might as well do the entire job themselves, as they did in the pre-reform era (before 1978). To my surprise, the members of the People’s Procuratorate and the Public Security liked what I said. I found their openness to my views reflective of enormous progress in the Chinese legal system in the last thirty years.

Hong Jun’s work seems to be inspired by his insatiable desire for justice. Through his investigative work, he is committed to rectify the errors of the legal system and make justice prevail at any cost. What kind of conception of justice inspires Hong Jun?

If we look at the concept of justice in Chinese criminal law, we can see that substantive, not procedural, issues have always been emphasized. The idea that procedural justice is also important started to emerge only at the beginning of the 1990s. Indeed, today, Chinese legal scholars, professionals and state officials seem to agree that procedural justice is needed to guarantee substantive justice.

In my novels, I highlight this point by asking the reader to reflect on the interdependent relationship between these two forms of justice. In Sex Crime, I put a lot of emphasis on the concept of fairness in criminal proceedings and I link fairness to both procedural time-limits and effective legal defence. In An Innocent Killer, I discuss what the presumption of innocence means.

One of the recurrent themes in both your literary and academic work is ‘the commission of mistakes’ 犯错误. You consider two different types of errors: errors committed by representatives of the legal system such as judges, lawyers and other officers of the court and errors committed by individuals – both average citizens but also judges and officials. Until a few years ago, it was difficult to publicly identify mistakes committed by officials, as this was regarded as a matter of political sensitivity. Yet, you have chosen to focus on this topic, which is mostly about the miscarriage of justice. What is your interest in doing so?  

When I wrote my first novel, Blood Crime, I chose not to focus on legal and judicial errors. My experience in the United States led me to choose a lawyer as the main character of the story. I had to find a trick to make the story credible to Chinese readers. As you know, under the 1979 Criminal Procedure Law, lawyers played a limited role during pre-trial and trial proceedings in China. To make the protagonist credible, I had no choice but to focus on the later stages of the criminal proceedings (in which lawyers play a more important part). Thus, cases involving miscarriage of justice are highly suitable for my stories as I want Hong Jun to be the central character. My stories turn on how the initiative of a lawyer leads to a case being re-opened, re-investigated and re-tried. A famous case of miscarriage of justice in 1994 – the Shi Dongyu 石东玉 murder case in Heilongjiang province – was the direct inspiration for my first novel.

Shi Dongyu with his family

When I was writing the novel, I started to reflect more on human fallibility. Actually, this is a topic that has bothered humanity for thousands of years. In my view, errors are the results of a combination of individual factors – as the Italian criminologist Cesare Lombroso has observed. There are also social reasons. Sometimes people simply happen to be in the wrong place at the wrong time and circumstances play against them.

In my second novel, I continued my reflection on human nature but put more emphasis on the social factors that contribute to human error and to the commission of crime.

When I was re-writing my novels in 2009, I had examined many case studies of wrongful convictions. Thus, I put effort into illustrating how mistakes were made by judges and other officers of the court. I wanted to show that good people could commit errors as well, whether as officers of the court or ordinary citizens.

My interest in judicial errors derives from both my academic work and literary research. In the first three novels, literature offered the inspiration for my academic focus on miscarriages of justice. On the contrary, the last two novels emerged directly from my academic work.

During the last few years, proven cases of the miscarriage of justice have generated intense discussions both among academics and the general public. To what extent do these debates on the miscarriage of justice have an impact, whether positive or negative, on legal reforms? And, in your view, what are the responsibilities of scholars when considering specific cases of miscarriages of justice and related legal issues?

Cases of miscarriages of justice push both legislators and our political leaders to consider the loopholes in our legal system and how the system should be improved. Thus, when miscarriages of justice occur, they offer us an opportunity to look at things differently.

In 2007, the Supreme People’s Procuratorate organised the first conference on miscarriages of justice in China. One of the main issues discussed was the principle of ‘exclusionary rules': that is, the principle according to which evidence obtained through illegal means should be excluded by the judges during the trial proceedings. This principle is strictly linked to the problem of torture for the extraction of confession. It has been discussed for more than a decade in China but its incorporation into the Chinese national legislation is quite recent. In 2010, the ‘Two Regulations’ 两个规定 – the ‘Regulations on the Exclusion of Illegally Obtained Evidence in Criminal Cases’ and the ‘Regulations on the Examination and Evaluation of Evidence in Capital Cases’ – were jointly issued by the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security, the Ministry of State Security and the Ministry of Justice. Earlier this year, both regulations were incorporated in the newly revised Criminal Procedure Law. Indeed, these legislative efforts were prompted by several cases of wrongful convictions widely reported by the media.

Scholars clearly have a social responsibility to ensure the fairness of the justice system. There is increased scholarly interest in miscarriages of justice. This is evident from the large number of scholars who attended the conference I organised on this topic just few weeks ago in Liaoning province. We had more than 150 scholars presenting their perspectives on how to redress miscarriage of justice. I would say that the degree of openness shown by scholars and officials at this conference was striking.

Obviously, talking about mistakes made by the authorities is still a sensitive topic in China and, I suspect, in other countries too.

I led a team of young scholars to conduct a large empirical survey of miscarriages of justice in China. The findings were published by the China Legal Publishing House 中国法律出版社. The first two books were published in 2009 and did not encounter problems. The first book, by Dr Liu Pingxin 刘品新, dealt with the causes of miscarriage of justice and recommended possible remedies. The second, by Dr Zhang Liyun 张丽云, focussed on the problems related to evidence in cases of miscarriages. The third book provided actual case studies of miscarriage of justice. When the manuscript was sent to the China Legal Publishing House, the director refused to publish it. He considered the contents too sensitive. I was referred to another publishing house which also turned down the manuscript. I then tried another publisher. Finally, we published the third book through the Ministry of Public Security. Naturally, we had to accept the conditions the Ministry imposed. Thus the book was revised to provide an academic (as opposed to practical) analysis of the topic.

Overall, this means that we can now talk about miscarriages of justice in China but the topic remains highly sensitive and we must thus be careful about how we approach it.

Just to conclude, we are really curious about your plans for the future. Can we expect to see another novel soon?

As you know, English readers may access to the translation of Blood Crime published by Penguin Australia at the end of August this year under the title of Hanging Devils. At present, I am trying to finish the revision of my fifth novel – Innocent Killer – which I hope will be ready by the end of this year. In the meantime, I continue to think about my literary future.

Thank you for your time!