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Why We Believe He Is Innocent

Five Legal Scholars Issue Opinion on the First Instance Verdict Convicting Xu Zhiyong of the Crime of “Gathering a Crowd to Disrupt Order in a Public Place”

By Gan Peizhong (甘培忠, Peking University School of Law);

Peng Bing (彭冰, Peking University School of Law);

Yao Huanqing (姚欢庆,  China Renmin University School of Law);

Wang Yong (王涌, China University of Political Science and Law), and

He Haibo (何海波,  Tsinghua University School of Law)

Published: February 13, 2014  

 

China Change has learned from Dr. Xu Zhiyong’s defense lawyer Zhang Qingfang (张庆方) that, one month prior to Xu Zhiyong’s trial, five criminal law professors at Peking University wrote a letter to the Chinese authorities explaining how Xu Zhiyong’s activities did not legally constitute “gathering a crowd to disrupt order in a public order” or any other criminal offenses. The following opinion was also prepared one month ago, after lawyer Zhang Qingfang presented evidence in the case to a wide range of legal scholars and solicited their comments. Several dozen law professors signed the opinion, but they disagreed on whether to publicize it. Ultimately, five of them chose to do so on their own. — The Editor

 

On January 26, 2014, the Beijing Municipal First Intermediate People’s Court reached a first-instance verdict that convicted Xu Zhiyong of gathering crowds to disrupt order in a public place, sentencing him to four years in prison ([2013]First Intermediate Court Criminal First Instance No. 5268).

Based on the verdict, as well as our understanding of Article 291 of the Criminal Law, we disagree with the ruling, and we believe the actions of the defendant Xu Zhiyong did not constitute “gathering a crowd to disrupt order in a public place.”

Our main argument is as follows:

With regard to “gathering a crowd” in relation to campaigning for equal access to education (items number one and two of the court decision), we believe that being at “the entrance area of the Ministry of Education” and “the entrance area of the Beijing Municipal Education Commission” does not fit within the definition of “other public places” under Article 291. The gathering in question was merely a way in which the individuals expressed a lawful demand, asked assistance from the relevant government department, or pressed a government department to perform its duties. It is therefore not a matter that should fall within the legal scope of “gathering a crowd to disrupt order in a public place.”

With regard to “gathering a crowd” in relation to campaigning for “asset disclosure by officials” (the third item in the court decision), we believe that the defendant Xu Zhiyong’s advocacy for “asset disclosure by officials” is not beyond the tolerance of the current judiciary practice, and it is a form of legitimate expression. Meanwhile, expressing opinions via peaceful means, such as displaying banners and distributing fliers in plazas, parks and universities, does not actually disrupt the particular  order of these public spaces, rather it is part and parcel of this particular public order. Thus, the concerned activities fail to constitute the crime of “gathering a crowd to disrupt order in a public place.”

We believe that, by virtue of setting the  prerequisites and establishing the coherence among articles of the law, the Criminal Law has already established a technical delineation of the boundary between citizens’ freedom of speech and the public order. An accurate interpretation and application of the law should find that Xu Zhiyong’s conducts did not at all constitute a criminal violation of the prohibition against “gathering a crowd to disrupt order in a public place.”

Furthermore, as far as government policy is concerned, advocating for “equal access to education” and “asset disclosure by officials” is in line with the essential direction of the ruling party.  The behaviors charged in this case should be seen as an exemplary instance of citizens’ eager participation in, and discussion of, governance. They should not have been dealt with as a crime.

Our specific contentions and objections are as follows:

1. On gathering a crowd in relation to campaigning for “equal access to education”

In this case, the “entrance area of the Ministry of Education” and the “entrance area of the Beijing Municipal Education Commission” do not fall within the scope of “other public places” as defined by Article 291 of the Criminal Law. The facts therefore do not meet the formal prerequisites of “gathering a crowd to disrupt order in a public place.” Although from their colloquial meaning and usage, the “entrance area of the Ministry of Education” and the “entrance area of the Beijing Municipal Education Commission” might be perceived as public places, they do not fall within the legally understood meaning of “public places” under Article 291.

The “other public places” in Article 291 refer to railway or bus stations, piers, civilian airports, shopping centers, parks, and other areas with similar nature and functions. Article 291 of China’s Criminal Law has put forth a definition of public places via enumeration and summary, that is, “railway or bus stations, piers, civilian airports, shopping centers, parks, theaters and cinemas, convention centers, sports stadiums, or other public places.” According to the basic principles of systematic interpretation, the “other public places” following the “or” ought to share the nature and functions of the public places preceding, and all of them must share common characteristics and attributes. First, as physical spaces, these are all areas that must be open to the public for an unspecified large number of people to come and go, to linger, and to use, and they are all essential spaces for the public to engage in economic, cultural, and recreational activities. Secondly, in terms of the meaning and function of these spaces as understood under the law, these areas are all for the purpose of facilitating the everyday economic, cultural, and recreational needs of the public. To disrupt the order of these places implies that citizens’ economic, cultural, and recreational activities cannot be carried out, and that the government’s ability to render public services to meet these related public needs has been hindered. Only places that fall within the same physical and functional characteristics listed above are “public places” as referred to in Article 291’s prohibition on “gathering a crowd to disrupt a public place.”

The “entrance area of the Ministry of Education” and the “entrance area of the Beijing Municipal Education Commission” do not correspond to the characteristics of the “public places” indicated in Article 291. First, in terms of physical characteristics, the entrance area of the Ministry of Education and the entrance area of the Beijing Municipal Education Commission do not share the same characteristics of “railway or bus stations, piers, shopping centers, parks,” etc.  All of these places are places open to the public with enough space for a certain number of people to freely come and go, to linger, and to use. On the other hand, both the Ministry of Education and the Beijing Municipal Education Commission are government organs that are only accessible during certain hours to their employees and to those who need to do business there. As for the “entrance area” of either the Ministry of Education or the Beijing Municipal Education Commission, they are passageways leading to these two government sites, and as physical sites, they do not meet the prerequisites of “public places,” such as having enough space for an uncertain number of people to freely come and go, to linger, and to use.

Secondly, the entrance area of either the Ministry of Education or the Beijing Municipal Education Commission does not perform the functions of a “public place” under Article 291. As it is said before, the “entrance area” of either one of these government sites is  merely a passageway for employees and work-related traffic, and they are not made to, nor could they possibly, meet the economic, cultural and other routine needs of the public as “railway or bus stations, piers, shopping centers, and parks” do. Therefore, any activities in these aforementioned entrance areas, even if they indeed caused disorder, they should not be judged as committing the crime of “gathering a crowd to disrupt order in a public place” because these sites are not “public places” as defined in Article 291 of the Criminal Law. This is the essence of using legally prescribed punishment for a specified crime.

2. When calling for “equal access to education” in “the entrance area of the Ministry of Education” and in the “entrance area of the Beijing Municipal Education Commission,” the appropriate individuals were merely appealing for their rights, asking help from the related government organs, and urging them to do their work. Their actions would not result in any material damage to the “social administrative order” that the Criminal Law is meant to protect.

That the appropriate individuals make appeals to a related government organ for their legally-provided rights in a reasonable manner is a manifestation of normal and healthy civic life in a society, a circumstance that falls completely within the order of social administration. It is part of the government’s job in social administration to respond appropriately to these reasonable appeals by citizens. In fact, when the social administration of a country is in good order, one indication would be that when citizens make rights appeals, the government addresses them effectively. Minor, non-consequential crowd disorder, as well as some radical behaviors resulting from reasonable demands being unfulfilled, should not be ruled as “obstructing the administration of public order” and be dealt with as a crime.

2. On “gathering a crowd” to call for disclosure of officials’ assets”

We believe that given the special functions of parks, public squares and university campuses, staging a public advocacy campaign in these places does not constitute “gathering a crowd to disrupt order in a public place.”

Order in the public places identified in the verdict, such as “Chaoyang Park, Zhongguan Plaza, Peking University, Tsinghua University, and Xidan Culture Plaza,” has specific meaning. Providing platforms for citizens to express lawful opinions and advocate legitimate appeals is part of their functions. Advocating “disclosure of officials’ assets” through “unfurling banners and distributing leaflets” in these public places satisfies the two conditions of “legitimate content” and “peaceful means,” and should be included in the functions of these public places. In fact, such activities are part of the order and the actual use of these public place, and there is no such a thing as “disrupting order in a public place” to speak of.

(1) Order in public places like parks, public squares, and university campuses has its own special and specific meaning. Citizens peacefully expressing their lawful opinions in these public places should be part of the normal order of these places.

By order in a public place, we are talking about the code of conduct that one ought to observe so that the public can use this public place as intended and carry out public activities. It is worth noting that different public places are for different public activities, and public places are designed to serve specific needs. Public order is defined in accordance with a public place. For example, group dancing at public squares and singing and performing in parks are part of the cultural activities and entertainment that are supposed to be carried out in these places, and these activities are not “disrupting order in a public place.” On the other hand, if people group-dance in movie theaters or sing or perform in convention halls, they could be disrupting order in these public places.

Public places like parks, public squares, and university campuses are legitimate places for members of the public to sing, dance, give speeches, or express themselves otherwise. Therefore, as long as citizens are using these spaces to peacefully express legitimate opinions and ideas, their activities are of the same nature as singing, dancing, and making speeches, and they are exercising a citizen’s basic rights that are protected by the Constitution. This is also a kind of public life that the government should encourage.  These activities could not possibly “disrupt” the order of these public places. On the contrary, they are part of the specific order of these places.

(2) “Asset disclosure by officials,” advocated for by the defendants in this case, does not exceed the boundaries of tolerance in the current legal order.

In this case, advocacy for “asset disclosure by officials” by Xu Zhiyong in parks and other locations is not a violation of the law at all. In fact, it is highly compatible with the Chinese Communist Party’s policies. Xu Zhiyong’s organizing others to promote this idea has the exact same nature as other advocacy activities (e.g. the abiding by the law campaign and the environmental protection campaign) we see in our daily lives in these places by various organizations (including government organs), and fall well within the boundaries of existing law.

(3) “Unfurling banners and distributing leaflets” is a peaceful, appropriate way to express opinions

In this case, people gathering in parks, plazas, university gates, etc. and “unfurling banners and distributing leaflets” as a means of expression based on the circumstances of these specific places, should be considered a peaceful, appropriate method. It is part of the normal order of this type of public area.

The verdict mentions that unfurling banners and distributing leaflets “caused onlookers to gather.” But just like how doing Taiji in parks or group dancing in plazas attracts onlookers, these forms of expression and the onlookers’ interest in them are part of the public life that occurs in public places, and should not be characterized as disrupting order in public places.

3. By specifying the prerequisites of this particular offense and by the coherence of different articles of the law, the Criminal Law has established a technical delineation of the boundary between citizens’ freedom of speech and public order

An accurate interpretation and application of Article 291 of the Criminal Law’s prohibition on “gathering a crowd to disrupt order in a public place” must note the relationship between it and “assembling a crowd to disrupt social order” and “assembling a crowd to assault a state organ” in Article 290 and “gathering a crowd to disrupt traffic” in Article 291.

Even though the gatherings that occurred “in the entrance area of the Ministry of Education” and “in the entrance area of the Beijing Municipal Education Commission” did not constitute “assembling a crowd to disrupt order in a public place,” this does not mean that the Criminal Law provides no protection for the order of the entrance area of the Ministry of Education or the Beijing Municipal Education Commission. Of course it is necessary to maintain order in the entrances areas of government offices. Regarding this, the Criminal Law already protects them through establishing Article 291’s prohibition on “assembling a crowd to disrupt traffic” and Article 290’s prohibitions on “assembling a crowd to disrupt social order” and “assembling a crowd to assault a state organ.” If actors gathering in front of the government offices have already exceeded the capacity therein and are extending into the street to the extent of hindering traffic, they could be suspected of constituting Article 291’s “assembling a crowd to disrupt traffic.” If the action of gathering a crowd disrupts social order on a serious level, making it impossible to conduct work, production, business, education, or scientific research and thus causing serious losses, this could possibly constitute “assembling a crowd to disrupt social order.” If actors do not only gather in front of government, but also exhibit behavior that constitutes “assault,” and this assault forcibly interrupts or stops government offices and their staff from being able to exercise their administrative authority and carry out their duties, causing serious damages, then the actors could be suspected of “assembling a crowd to assault a state organ.” However, if the crowd does not linger in the street causing a traffic jam, and does not make it impossible to conduct work, production, business, education, and scientific research, let alone assault a state organ, their action then lacks the characteristics of “assembling a crowd to disrupt traffic,” “assembling a crowd to disrupt social order,” or “assembling a crowd to assault a state organ,” and thus does not constitute any of these crimes.

Furthermore, in the Criminal Law, the difference between the prerequisites for “assembling a crowd to disrupt order in a public place” in Article 291 and the prerequisites in Article 290, and the juxtaposed regulations of Article 291 about order in public places and order of traffic, show the careful consideration the lawmakers have givento the possible contradiction between citizens’ rights to freedom (including freedom of speech) and social order.

First, precisely because public places have the function of realizing citizen’s freedom of expression and are important places that citizens’ freedom of speech rely on to exist, Article 291 of the Criminal Law does not stipulate “public places” generally. Instead, through the enumerative provision of “railway or bus stations, piers, airports, shopping centers, parks,” etc., it makes a restrictive definition for the “other public places” mentioned thereafter. Aside from this, the article also stipulates “resisting or obstructing public security administration personnel of the state from carrying out their duties according to law” and “serious circumstances” as this crime’s objective prerequisites, so as to avoid the excessive pursuit of order and cause possible harm to freedom of speech.

Second, the Criminal Law must protect the normal order of work, production, business, education, or scientific research, and, at the same time, avoid excessively limiting citizens’ freedom of expression by offering a too general a concept of “social order.” Thus, the first clause of Article 290 stipulates that only circumstances where “work, production, business, education, or scientific research cannot be conducted and a serious loss is caused” become punishable by law. Other crowd-gathering actions that do not reach this level do not constitute the crime of “assembling a crowd to disrupt order in a public place.”

Third, precisely because the expression of criticism of the government and demands for political rights need a greater extent of tolerance and protection, the second clause of Article 290 of the Criminal Law defines the prerequisites for the crime of “disrupting  the order of a state organ” as assembling a crowd to “assault” [the state organ], which is much more serious than using the word “disrupt” as in Article 291. It also requires that the assault reach the level of “making it impossible for the state organ to conduct work.”

Fourth, in order to prevent citizens from excessively exercising their freedom of speech to the point of afflicting social order, Article 291 of the Criminal Law provides protection for not only the “order of public places” but specifically also for “traffic order.” This way, while the law gives tolerance to citizens expressing opinions in front of government offices, it prohibits such actions from extending into the street, which would hinder the ability of other citizens to get around. .

All of these show that the lawmakers have taken cautious measures to safeguard freedom of speech and to protect public interest while ensuring the work order of government offices through defining different prerequisites for different crimes and through establishing a coherent relationship among articles of the law. Correspondingly, the judicial authorities that interpret and apply the law should not bluror weaken the different prerequisites for different offenses. They should avoid inappropriately suppressing citizens’ legal rights while maintaining the order of public places to an excessive degree.

4. Conclusion

Based on the relevant facts identified in the verdict and our understanding of Article 291 of the Criminal Law and other related laws, we believe Xu Zhiyong’s actions did not constitute “gathering a crowd to disrupt order in a public place.”

Since its 18th Congress, the Chinese Communist Party has committed itself to reforming and to listening to people’s voices. It has abolished re-education through labor. It has promised to promote the rule of law and improve peoples livelihoods. It has pushed for asset disclosure by public servants and anti-graft efforts. The central government has approved policies for equal access to education and policies allowing migrant workers’ children to take the college entrance exam at locations other than their household registration. All of these government actions have the same intention as the actions of Xu Zhiyong and others. Citizens demand for rights and the government responds to the demands positively and effectively. Such is the order of social administration in a state that operates in a healthy manner. When citizens have resorted to somewhat excessive expression of their demand, as long as they have not caused any serious social harm, the government should use dialogue and communication when dealing with them, not resort to single-minded suppression. This is part of the process of modernizing the state governance system and governance ability.

We believe that the verdict reached by the Beijing First Intermediate People’s Court in the court of first instance did not comply with the true meaning of the law, and it is also a failure in showcasing a modern country’s ideas of governance, not to mention that it directly contravenes the current policies that the Communist Party has been trying to promote.

January 26, 2014

 

Related:

Xu Zhiyong Appeals: Spare Any Talk about Rule of Law in China If the Second Instance Does Not Correct the Decision by the First Instance

Translation of Xu Zhiyong Verdict, by China Law Translate

The New Citizens Movement Trials, a compilation of related posts

 

(Translation by Sophie Jin, Yaqiu Wang and Jack)

Chinese original


3 Comments

  1. […] Why We Believe He Is Innocent, Five Legal Scholars Issue Opinion on the First Instance Verdict Convicting Xu Zhiyong of the Crime of “Gathering a Crowd to Disrupt Order in a Public Place” […]

  2. […] Why We Believe He Is Innocent, Five Legal Scholars Issue Opinion on the First Instance Verdict Convicting Xu Zhiyong of the Crime of “Gathering a Crowd to Disrupt Order in a Public Place” […]

  3. […] for “gathering a crowd to disrupt order in a public place.” Many Chinese were outraged, legal scholarsrefuted every aspect of the case, and the international media reported the trial widely. You and Xu […]

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