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Justice Anderson, nine others preside over sessions.

Moot court considers activist’s fate

 

Law students presented arguments last month to the imaginary Constitutional Court of China presided over by Minnesota Supreme Court Justice Paul Anderson. (Submitted Photo)

Justice Anderson, nine others preside over sessions

For 81 days in 2011, the Chinese government detained Ai Weiwei, the prominent artist and activist who helped design the iconic Bird’s Nest stadium for the Beijing Olympics. After Ai’s detention and a subsequent investigation, the government accused Ai Weiwei’s company, Beijing Fake Design Cultural Development Company, of tax evasion and levied a fine amounting to more than $2.4 million.

Ai and his lawyers, maintaining that the investigation was a government attempt to harass and detain a high-profile political activist, brought a lawsuit against the tax authority, alleging a litany of legal shortcomings and procedural errors. Ai lost in the district court and the appellate court; the penalty stood.

Last month, however, this case made its way to the Courtroom of Minnesota Supreme Court, where Justice Paul Anderson and other justices presided over an appeal before the “Constitutional Court of the People’s Republic of China.” No strange procedural wrinkle brought the case from Beijing to Saint Paul; the proceedings on April 23 and 24 were a moot court exercise, serving as the final exam for Professor Chang Wang’s Chinese law courses at the University of Minnesota Law School and William Mitchell College of Law.

In the two days of moot court competition, 47 law students from both schools formed eight teams representing the artist Ai Weiwei, appellant, and Beijing Tax Bureau, respondent, in four mock appeals. Each team authored a legal brief and presented oral arguments to the imaginary “Chinese Constitutional Court.”

On the first day, two teams from the University of Minnesota represented Ai Weiwei against two William Mitchell teams presenting the tax bureau’s argument. On the second day, two other William Mitchell teams represented Ai, and two other U of M teams represented the government.

In addition to Justice Anderson, who has lectured at Supreme People’s Court of China and top Chinese law schools in recent years, other justices on the “Imaginary Constitutional Court” included:

• Alexander Morawa, expert in comparative constitutional law and associate dean for internationalization and chair in Comparative and Anglo-American Law at the University of Lucerne School of Law in Switzerland.

• Rick King, chief operating officer for technology at Thomson Reuters and a leader in national technology community.

• Joan Howland, Roger F. Noreen Professor of Law and associate dean for information and technology at the University of Minnesota Law School.

• Tom Leighton, vice president of content acquisition and government relations at Thomson Reuters.

• Jay Erstling, professor of international and comparative intellectual property law at William Mitchell College of Law.

• Jim Hilbert, executive director of the Center for Negotiation and Justice and adjunct professor at William Mitchell.

• Alan Miller, host of the television program “Access to Democracy.”

• Nathan Madson, an attorney at Findlaw, a Thomson Reuters business.

• Chang Wang, chief research and academic officer at Thomson Reuters and adjunct professor at both the University of Minnesota Law School and William Mitchell College of Law.

The tax ruling that Ai Weiwei was appealing did not actually begin as a tax case. Rather, it began as a criminal investigation, based on suspicion of Ai Weiwei’s political activities. Ai had been detained at Beijing International Airport on April 3, 2011, as he was about to board a plane to Hong Kong. For the next 81 days, he was held in state custody and interrogated as to whether he had been involved in “inciting to subvert the state power.”

Partly as a result of international pressure, Ai was finally released in June. By then, the criminal element of the case had faded, and the case had morphed into a charge of tax evasion, an administrative-law case.  After his losses in the administrative hearing, district court, and appellate court, Ai Weiwei’s case fully run its course in Chinese judicial system, with no avenue of appeal remaining. But the moot court assignment imagined a “Chinese Constitutional Court” that could review the case under the Chinese Constitution.

The complexities of the case forced the students to master Chinese constitutional, criminal, administrative, and evidentiary law, and to consider China’s obligations under international human-rights treaties –  topics they had studied during a semester-long course Chinese law course taught by Professor Chang Wang. The legal teams had to wrestle over such issues as whether Ai’s detention violated criminal-law procedure, whether evidence gathered by the tax bureau was valid and sufficient to convict Ai’s company, and whether the tax-penalty hearing violated administrative and evidentiary procedure.

Another issue confronting the teams was whether it had been proper to detain Ai — whose role with Fake was limited to that of minority shareholder and “consultant” — during what was ostensibly an investigation of the company itself. The implication of International Covenant on Civil and Political Rights (ICCPR), to which China is a signatory, in this case was also debated.

The justices challenged all eight teams with incisive questions. During a discussion of profit margins, a discussion stemming from the tax bureau’s factual findings, Justice Anderson honed in on the standard of review, asking the teams to articulate the level of deference with which the court was required to treat the factual findings of the tax bureau and the district court. Justice Morawa persistently reminded the teams that they were before a constitutional court, and required students to find constitutional justification for their statutory arguments.

The student counselors made their arguments by fielding difficult questions from the bench. The Justices constantly challenged the counselors to articulate a particular point of law or to respond to a hypothesis that contained slightly twisted fact patterns. Indeed, the justices and the counselors acted together to explore the nuances of complex legal issues. The courtroom was filled with almost palpable tension: zealous advocacy, probing questions and constant wrestling with fine legal points.  The student counselors appreciated and benefited from this unique opportunity to make cases in front of a high profile team of senior judges, top business executives, and learned law professors.

The students largely withstood the onslaught of questions from the justices. Despite the talent of the justices for picking apart arguments, the students were overwhelmingly able to cite to the relevant provisions of Chinese and international law. At the conclusion of the arguments, the justices offered feedback to the students, who were honored to receive praise and constructive criticism from a distinguished panel.

This Chinese law moot court competition is the first ever inter-collegiate moot court competition in the United States on Chinese law. It provides a unique opportunity for American law students who have studied Chinese law to develop a better understanding of the legal system of China from a comparative perspective, and learn to predict legal actions and outcomes across cultures from a practical point of view.

Dean Morawa’s law school in Switzerland and a top Chinese law school in Beijing have expressed strong interest in participating in next year’s competition.

After the moot court concluded, Professor Chang Wang praised the students for their arguments and poise before the court. “This was a complex and difficult set of facts, but the students researched and performed very well,” Professor Chang stated. “Ai Weiwei and Beijing Tax Bureau might be amused to hear your arguments on behalf of them at this imaginary ‘Chinese Constitutional Court.’”

Andrew Hart is a third-year law student at the University of Minnesota.

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