"Uphold the Bottom Line of the Rule of Law"(1) --- an open letter about the New Citizen Movement cases to all delegates of the Twelfth National People’s Congress
We are the Defenders [defense counsel] of Xu Zhiyong. Ding Jiaxi, Li Wei, Zhang Baocheng, Ma Xinli, Song Ze, Li Gang, Hou Xin, Yuan Dong, Li Huanjun and dozens of other Chinese citizens who have been charged with crimes because they advocated or participated in the New Citizen Movement, as well as domestic intellectuals, entrepreneurs and media persons who are concerned about the New Citizen Movement cases. As the Second Plenary Session of the Twelfth National People’s Congress is about to commence, we strongly urge all Delegates to confront the fact that as the New Citizen Movement cases show, Chinese citizens’ constitutional rights are brutally suppressed and freedom of speech is unlawfully restricted in this country. We urge you also to instruct the relevant departments to immediately correct their wrongful practices; to protect the hard-won victories of rule of law development, and to safeguard the implementation of the laws and Constitution. Our reasons are as follows:
I. The New Citizens Movement trials are classic examples of cases criminalizing speech.
In its first instance verdict, the Beijing Municipal No. 1 Intermediate People’s Court found that Xu Zhiyong had repeatedly exploited social issues of great public concern to organize and orchestrate people to assemble and unfurl banners near government offices, in bustling commercial areas, and in crowded places. Consequently, the court found Xu Zhiyong guilty of the crime of gathering crowds to disturb order in public places and sentenced him to four years imprisonment. However, in the written opinion there was not testimony by a single Beijing resident accusing the New Citizens Movement of inappropriately infringing on his or her legitimate use of a public place. The so-called witness testimony cited in the first-instance verdict was given by police officers on the scene and security guards controlled by the police, who are protectors of public order but are not themselves the beneficiaries of protection from harms to social management and order. Therefore, it is no exaggeration to say that the first instance verdict in the Xu Zhiyong trial was woven entirely out of thin air, without a single identifiable victim .
Further, the five actions mentioned in the verdict where Xu Zhiyong organized and devised the gathering of crowds to disturb public order, were without exception lawful acts by citizens citizens legitimately exercising the constitutionally granted rights to freedom of speech and to criticize and make recommendations to the government. The background behind the two education equality events was that at the 2012 meeting of the 'two sessions' (2), Minister of Education, Yang Guiren and Vice-Minister Du Yubo openly stated that the Ministry of education was then formulating a plan for children accompanying migrant parents to take the college entrance exam, and that it would be promulgated in the next half year. Having actively promoted educational equality for the last three years, non-resident parents of school age children residing in Beijing went together to the Petitions Office of the Ministry of Education on July 5, 2012 to ask whether relevant policies had been introduced, but the answer they got was [that the authorities] were neither aware of such policies nor knew when they would be introduced. Agitated, these parents of students all went to the Ministry of Education's front entrance and stood on the nearby pavement in two lines, leaving a space for pedestrians to walk pass. Some parents shouted "'Resign, Yuan Guiren" and "Du Yubo lies" while unfurling banners with the same slogans, but the police quickly took all parents away from the scene and took two of their representatives to the district's police substation where took made a record. The events of that day concluded long ago and Dr. Xu Zhiyong was not at the scene because he had been controlled in advance by the police. The police did not give any punishment to any of the parents who were at the scene, not even an administrative arrest, which sufficiently explains that at first the police did not believe that this normal petitioning activity by parents constituted a crime. Another education equality action that took place in front of the Beijing Education Commission on February 28, 2013, occurred after the Ministry of Education had already put forwards its plan for non-resident children to take the college entrance exam wherever they might be, and had required that each province and city formulate specific implementation measures by the end of 2012. Beijing, however, was refusing to put forward a policy. The parents spontaneously organized a petitioning activity, and the over 90 parents at the scene chose five representatives to go to the petition office and feedback their views on the situation. The others waited quietly at the path outside the commission gate, and did not display banners or shout slogans. They did not obstruct any pedestrian's passage, and did not influence the work of any party or government organs work, including that of the municipal education administration. Just like the 7/5 incident, Xu Zhiyong was also not on the scene, and the police did not 'deal with' any parents of students that day. Yet half a year later, to convict Xu Zhiyong, the police forces still took these twopetitioning actions for education equality, which had been entirely dealt with earlier, as proof of his disturbing order in a public place. We can't help but ask: since when are citizens, this country's nominal masters, not allowed to even stand in front of the gates of the people's government? Since when has Chinese citizens' exercise of their rights to criticize and make recommendations, explicitly guaranteed by the Constitution, become grounds for their criminal punishment?
Yet Xu Zhiyong and the others were led to take these three actions in the streets calling for disclosure of official's assets, so as to encourage the National People's Congress to put forth a law on asset disclosure - organizing separate anti-corruption publicity actions at the south gate of Chaoyang Park, Zhongguancun, and Xidan Plaza. Among these was the publicity action at Choayangmen Park which the police stopped, where Yuan Dong and the others unfurled banners they had prepared in advance saying, "citizens demand officials disclose their assets." There weren't event 10 people at the scene and at the spacious South Gate of the Chaoyangmen Park, they simply didn't obstruct anyone. Neither of the two actions at Zhongguancun encountered police at the scene, nor did they cause a large number of people gather. They didn't influence traffic and didn't obstruct the routine use of the public space by others. Although the publicity action at Xidan Plaza attracted 50-60 spectators, the scene was quite orderly before the police raced onto the scene; later the police's thuggish law enforcement did cause a larger crowd to gather, but it still did not cause the scene to become chaotic. Delegates, let me ask you, using the criminal law to suppress 3-5 citizens calling for official's to disclose their assets in a public place, is that for the protection of the legal order made in the people's name, or for the protection of corrupt official's unlawful interests? Is this Xu Zhiyong and the others disturbing order in public places or is it the Beijing Police violating citizen's right to the routine use of a public space to express their views?
II. The Government’s Suppression of Citizen Speech is Cause for Deep Concern for the Rule of Law in China.
Whether China wants freedom of speech, wants the rule of law-- these were the issues we felt most deeply while handling the New Citizens cases. Although, since he took office, Xi Jinping has continued to say that the “the Party should tolerate harsh criticism”, in the last year the reality we have seen is that: domestically, freedom of thought has been further fettered, Internet speech has encountered unprecedent restrictions and those in activities promoting constitutional democracy have been carted off to prison, one after the other. Today, more than two thousand years after "King Li's Stopping Slander"(3) , another scene of "ten thousand horses falling mute"(4) has again surfaced in domestic politics, causing us to doubt whether the ruling party views freedom of speech as a means of ensuring long-term peace and stability, or as the root of bad law and crooked politics?
Actually, the Beijing police forces were well aware that the New Citizen Movement did not cause any disruption of public order at all. This can be clearly seen in the interrogation records from their excessive use of [conjectural] language such as “suppose”, “if”, and “in the event that”:
“ Ma Xinli, think about it, if your displaying banners brought about serious consequences, then the nation would be in disorder, society would be in disorder, could you ensure that such a situation won’t happen? If it did happen, are you able to take responsibility?"
“Zhang Baocheng, think about it, all of you go to Zhong Guancun and Xidan, influential places with a lot of people, and without getting the relevant departments’ permission, just start unfurling banners about citizen’s demanding officials' disclose assets. Don't you think that this kind of action could cause a harm? If the number of people gathering because of the banner displays was increasingly large and it became impossible to control the situation, then what would we do?"
“(Ding Jiaxi), speaking only about the education equality event you participated in; you used your phone to send over a thousand text messages inciting "outsider parents“ [parents of school age children residing in Beijing but lacking official Beijing household registration] to gather in front of the gate to the Ministry of Education and cause a scene. Did you think at the time that the situation could be kept sufficiently under control?” (Ding responds: "Was their any disorder in the end?") “That’s because the police got involved early; only through their prompt efforts were serious consequences avoided. This conduct of yours, it not only disrupts a the public order, but it also creates a lot of work for police. Do you think this kind of behavior is correct?"
“ (Xu Zhiyong) , Your error is right on the surface, your ideal is justice, but really, your words and deeds in society aren't just. You have created over a 100 banners, distributed over 10,000 leaflets, gone to a series of cities calling for them to take to the streets and hold up banners. Imagine if similar instances occurred everywhere in the country. How large an impact on society would that level of chaos have?"
Even as the the police imagined harmful consequences for which to convict Dr. Xu Zhiyong, during the interrogation they also unknowingly revealed their complex attitude toward citizens' public expression of political opinions - an attitude of contempt, fear and confusion:
"The State has petitioning departments where the public may give feedback on issues, why do you all still want to take to the streets with banners? In today's China can many of these ideas of yours be put into force? If you have legitimate demands, they may be made through formal channels, by reasonably and lawfully giving feedback to the state. Now, that is what I'd call really acting patriotically and for the love of the Party. "
"Why do you say at gatherings that you're dissatisfied with the state of the nation? Does incessant criticism of the status quo help to improve the nation? People all have their faults, and political powers no different, governments also have a fault or two. But why do you focus only on the faults? You never see the things in the mainstream. I think this is ill will on your part.
“The state has nurtured you. It is every citizen's duty to maintain the stability of the country. If you continue with this kind of dangerous thinking, you'll end up like teacher Liu [referring to Liu Xiaobo]”?
The police's comments below further demonstrate their view that the calls by Xu Zhiyong and others for education equality and asset disclosure are creating troubles for the government:
"Even in developed countries all around the world, wealth inequality and other social contradictions remain. In China, where social development is in a unique stage, the disparity between our hopes and reality is even more obvious, and contradictions are more numerous. These problems won't all be solved overnight. Even if the problems involved in disclosure of officials' assets solved, all the other social contradictions would remain. Going on and on writing essays on every social problem looks, on its face, like it will advance social progress, but in reality will hinder the march toward social advancement. Only the person running the house knows the cost of fuel and rice. Maybe all you see is the superficial side of things; Xu Zhiyong, aren't just one man. Your essays and your words are all well and good, but your civil organization and local dinner gatherings are gradually expanding, and what we've seen in this process is that if this continues to develop, there will be no good way to guarantee social stability. Whether it's about asset disclosure or education equality, you call for demonstrations and taking to the streets to pressure the government. What is it you think you're doing?"
In the "Request for Approval of Arrest" for Ding Jiaxi, the police formally expressed anti-constitutional governance leanings: "Lawful investigation has revealed: the criminal suspect Ding Jiaxi has, for reasons from his personal experience, become dissatisfied with the current regime and the socialist system. He began demanding so-called democratic constitutional governance. Relying on the civil organization headed by Xu Zhiyong and Xu Zhiyong's illegal political theories (advocating that citizens take it upon themselves in their lives and at work to leave behind elite corruption and the slavery of dictatorship, to fulfill the the spirit of the New Citizens, to agree to divide up work under democratic rules, to promote China's peaceful transition to constitutional governance; that citizens ought to unite and agree to divide work, and by way of reposts [on social media], lawsuits, elections, group travel and demonstrations and other means, together push for asset publication, anti-corruption, anti-hukou [the household registration system] and other such citizens' movements, as well as the growth of citizen's power in citizen's movements), Ding took part in the New Citizen Movement, carrying out harmful activities."
Today, citizens' legitimate exercise of their constitutional rights has been regarded by the police as the cardinal sin of pursuing constitutional democracy. It is not at all because of actual harms, but rather because of harmful consequences that they imagined might possibly occur, that the police transferred the cases of Xu Zhiyong et al for prosecution on the crimes of gathering crowds to disturb order in public places. Yet, in China's current rule of law environment, reprehensible conduct such as the police use of public power to blatantly attack citizen's political rights goes unpunished in the justice system. If you, as representatives of public opinion, turn a blind eye to these extremely repugnant political cases, can China still be said to want rule of law? What meaning would China's Constitution still hold?
III. Resolving the Major Problems Plaguing China Today Rests Not on the Concentration of Power, but on the Rule of Law,
Dear Delegates, the sustained rapid economic growth over the last thirty years has made many of us proud of China’s “systemic advantages.” But over the recent years, choking smog has blanketed much of China, the wealth gap has gotten increasingly worse, the urban and the rural are further divided, ethnic conflict has been increasing, while development is losing steam. These manifestations have heartlessly uncovered the myth of China’s so-called “systemic advantages.” Every responsible Chinese with a good conscience must face the serious flaws of the country’s political system and economic model. More than anyone else, the leaders of this country should be determined to carry out further reform, blazing an unprecedented path to achieve lasting peace and sustainable prosperity in China.
We cannot, however, count on centralized power to solve the difficult political and economic problems vexing our country. We cannot fantasize that, so long as all the people support a strong-arm national leader unconditionally, a stable and prosperous China Dream will be realized. China is sufficiently vast that a single such person will always fall short of seeing the whole. Chinese society is sufficiently complicated that a single person will always fall short in knowledge and insight. Only by encouraging citizens to participate in and discuss politics can free discussion and the clash of ideas truly discover all the problems vexing the country, and advance their solutions. The path of centralized power, on the other hand, relying on the suppression of citizens' free speech admittedly helps avoid a certain passivity and pressure in government work that could result from an inundation of improper speech, but looking at it from a distance, the unavoidable consequence of blocking the path of speech and obfuscating civil rights is the burying of social contradictions that intensify by the day, the indulgence of officials who violate discipline, and encouraging leaders to pursue arbitrary desires-- and this in turn takes the country into the abyss of perdition. As the well known quote from Jefferson explains: " In every government on earth is some trace of human weakness, some germ of corruption and degeneracy, ...... Every government degenerates when trusted to the rulers of the people alone. The people themselves therefore are its only safe depositories. "
Delegates, when freedom of speech is meeting unprecedented suppression domestically, and rule of law is approaching an intersection, is it authoritarian rule or democratic governance that is the mechanism which will save China? I hope you use a high level of political wisdom and show extraordinary political courage, to accept this sacred political mission to take seriously the power granted to People's Representatives in the Constitution, and instruct the relevant departments to immediately correct their stifling of speech, their wrongful practices that undermine the rule of law, and that you push China's reform into a new era of joint decision making by all the people.
We now emphatically call upon each representative to exercise the following powers at this second meeting of the 12th Session of the NPC:
1. Submit a proposal to the Supreme People's Court, Supreme People's Procuratorate, and Ministry of Public Security instructing them to immediately conduct an investigation into the unlawful case filing, unlawful indictment and unlawful judgments in the New Citizen cases; and follow the statutory procedures to make corrections in these wrongful cases in which judicial power was brazenly used to suppress citizens' basic rights, and in so doing, clean the names of Dr. Xu Zhiyong and the other participants in the New Citizen Movement.
2. Submit a proposal to the National People's Congress for the drafting of a "Law on the Disclosure of Public Official's Assets", so as to build a solid foundation for a corps of honest and pure civil servants.
3. Submit a legislative recommendation to the Standing Committee of the National People's Congress for the revision of the Law on Assembly, Procession and Demonstration, with a view to change the current approval system to a registration system for the organization of assemblies, processions and demonstrations; clearly exclude acts of political discussion that involve a small number of people expressing their political views in public places and that do not obstruct normal social order and traffic flow from the scope of activities subject to the registration system; and prevent the government from using the approval regime under the Law on Assembly, Procession and Demonstration as a tool for suppressing citizens' freedom of expression;
4. Send a query to the Ministry of Education requesting that it immediately instruct the individual provinces and municipalities, including Beijing, to actually implement the plan for "brought along children" [accompanying migrant parents] to take the college entrance examination, giving every child of taxpayers within the cities an equal right to education, and not continuing to create second-class citizens into China's new generation, not creating opponents to China's future;
5. Recommend that the National People's Congress implement a Constitutional Elections Leading Group, with Chaiman [of the NPC Standing Committee] Zhang Dejiang as its head, so as to ensure that the basic human rights provided for in the Constitution are implemented, and that criminal responsibility is pursued for those who repress citizen's constitutional rights.
Delegates, We believe that you are the elites from all walks of life in China, we believe that you, like Dr. Xu Zhiyong and the other participants in the New Citizen's Movement, all have a sincere love for this nation. To love this county is to plan for it's long-term future, but what China needs most now is the true establishment of constitutional authority, it is the complete implementation of citizens' basic rights, it is the free expression of the common people's political hopes, and it is the sharing of state power among all the people. If you continue to allow the sacred constitutional rights of citizens to be put aside, continue to tolerate the use of public power for the self-interests of the few without any punishment, continue to turn a blind eye as speech is criminalized in case after case, then this country of ours not only has no bright future to speak of, but has a serious risk of long term turmoil and fractiousness, and this is a historical responsibility that none of can bear.
Please, consider this carefully.
王 瑛 北京，企业家
Rou Tangceng (aka Xu Zhirong), columnist
王 兴 北京惠诚律师事务所，丁家喜原辩护人
March 2, 2014