Monday, August 19, 2013

Government Notice Fuels Crackdown on Assembly as Subversion

Xu Zhiyong (top) & Guo Feixiong are among the recent arrested for "disrupting social order".
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Over the past several months, Chinese authorities have been cracking down on peaceful assembly and association. As of August 14, more than 50 individuals had been detained, arrested, or disappeared. Among the most prominent are Xu Zhiyong, chief proponent of the “New Citizens’ Movement” and co-founder of the Open Constitution Initiative—a legal aid and rights-protection organization shuttered under government pressure in 2009—and veteran rights activist Guo Feixiong. Both were detained on charges of “gathering a crowd to disrupt social order”; Xu on July 16 and Guo on August 8. Many of those detained were active in calling on Chinese government leaders to disclose their assets and make good on promises to combat official corruption.

An internal notice issued by China’s Supreme People’s Procuratorate in June may be one impetus for this crackdown. The notice called on prosecutors (who also investigate corruption and approve arrests in criminal cases) to support the ongoing propaganda effort to “build a peaceful China” by paying special attention to certain types of criminal cases seen as particularly disruptive to political stability and social order. One thing this notice calls for is resoluteness in combatting criminal activity such as “illegal assembly and gathering a crowd to disrupt social order” where there is a “goal of subverting state power.” It is likely no coincidence, then, that the charges of illegal assembly and gathering a crowd to disrupt social order have been widely used against those detained in this latest crackdown.

In the August 11 edition of Caijing magazine, constitutional law professor Zhang Qianfan published an essay expressing serious reservations about this notice and the latest campaign against assembly and association. In this essay (translated below), he argues that peaceful assembly should be seen as a form of speech and subject to the protections of China’s Constitution. Protecting citizens from punishment for peaceful assembly or legitimate criticism and exposure of government wrongdoing should be, he argues, a key component in pursuing the goal of social stability and security. Though he does not mention the recent detentions specifically, his linkage between clear channels for free public expression and the effectiveness of China’s fight against corruption makes it clear that he is not simply speaking in abstractions.

How to Build a Peaceful China

Zhang Qianfan
Caijing, August 11, 2013

On June 20, 2013, the Supreme People’s Procuratorate issued a “Notice on Making Full Use of the Procuratorial Functions to Thoroughly Promote the Building of a Peaceful China” (hereafter the “Notice”). On the one hand, the Notice calls for severity in combatting especially major and serious criminal cases involving safety and accidents, such as those involving threats to food or pharmaceutical safety, public health, environmental pollution, damage to natural resources or fires, mining disasters, or serious traffic accidents. On the other hand, the Notice calls for severity in accordance with the law in combatting crimes that endanger state security, earnest support for political security, and resoluteness in combatting criminal activity such as illegal assembly and gathering a crowd to disrupt social order or a public place with the goal of subverting state power.

The criminal activities in the first provision produce social harm and are related to public safety, so the procuratorates truly need to exercise their powers to approve arrest and prosecute in order to effectively combat them. As for the latter provision, activities that damage state security such as espionage, inciting defection, and disclosure of legitimately and lawfully classified state secrets truly need to be combatted in accordance with the law. But in order to be compatible with the constitutional goals of ruling the nation in accordance with the law and protection of human rights, there is a need for strict interpretation of broad concepts such as “subversion of state power,” “illegal assembly,” and “disturbing social order”; otherwise, if handled inappropriately, it will not only potentially infringe on citizens’ constitutional rights but may also run contrary to the idea of building a peaceful China.

Part Two, Chapter One of the Criminal Law provides for “Crimes of Endangering State Security,” among which Article 105 punishes the acts of “organizing, plotting or carrying out” or “using rumor, slander or other means to incite the subversion of state power or overthrow of the socialist system.”

According to the definition in Article 4 of the State Security Law, “endangering state security” is an offense based on actions. For example, in “plotting to subvert the government, split the nation, or overthrow the socialist system,” the words “subvert,” “split,” and “overthrow” are all action verbs. In other words, only actual illegal activity such as plotting an armed rebellion, engaging in espionage activity, or disclosing state secrets can possibly constitute actions that endanger state security. Of course, Article 105 of the Criminal Law broadens the crime to speech such as rumor or slander that “incites subversion of state power,” but this broadening must be treated with caution.

In order to charge a particular mode of speech as constituting “inciting subversion of state power,” one must prove that the speech intended to subvert state power and also that it really had the potential to cause subversion of state power. This is because the object of Article 105 is not to restrict speech; rather, it is to prevent the act of subversion. If inciting speech is actually able to cause subversion, it ought to be forbidden in accordance with the law. But unlimited expansion makes it easy to exaggerate and prosecute and repress legitimate criticism of the government as criminal speech “inciting subversion of state power,” thereby trampling on citizens’ right to free speech and right to criticize and make recommendations as granted by Articles 35 and 41, respectively, of the Constitution.

The reason why the Constitution protects citizens’ freedom of speech and especially provides citizens with the “right to criticize and make suggestions to any state organ or functionary,” the “right to make to relevant state organs complaints and charges against, or exposures of, violation of the law or dereliction of duty by any state organ or functionary,” and [states] “no one may suppress [such complaints, charges, and exposures] or retaliate [against the citizens making them]” is because freedom of speech is critical to maintaining the security and stability of the entire society.”

It’s worth emphasizing that the “ordinary mechanism” for maintaining state security and social stability is not the frequent use of the Criminal Law to punish those citizens who dare to speak out; rather, it is actually in the protection of citizens’ freedom of speech. This point is especially important to a great nation. The main source of a variety of sources of instability in Chinese society at present is the uncontrolled abuse of state power. Up to this point, China’s main mechanism for checking official corruption is top-down organizational control. However, China is so large and has so many localities and complex administrative hierarchy that it is difficult for the central government to keep an eye on all the provincial and ministerial-level officials, difficult for provincial government to keep an eye on officials in each of its cities, counties, townships, and towns, and so on. Since top-down organizational oversight is of limited effectiveness and bottom-up democratic oversight is, for many reasons, unable to play a full role, corruption and abuse of power have become rampant.

But with the rise of the Internet in recent years, the citizen voices have played an increasingly big role in oversight over the government, and much corrupt behavior has been exposed through channels like the Internet, providing an opening for the top-down legal- and disciplinary oversight.

But without strict definition of the scope of the crime of “endangering state security,” the social consequences of inappropriate use of those laws may run counter to the intent of protecting state security. For example, if charges are cooked up to punish speech, then the channels for citizen expression and oversight by society will be blocked, corrupt officials will run wild until seething popular resentment shakes the central government, causing irreparable damage to society, more acute social unrest, and accumulated dangers.

By the same logic, there should also be strict interpretation of the “Crimes of Disturbing Public Order” set out in Part Two, Chapter Six, Section One of the Criminal Law. Among these, Article 290 establishes the “crime of gathering a crowd to disturb social order.” So-called “gathering a crowd to disturb social order” means acts “to such a serious extent that work in general, production, business operation, teaching, or scientific research are unable to go on and heavy losses are caused.” From this, it is clear that if one only gathers a crowd but the extent is not serious and it does not lead to work, production, business operation, or teaching being “unable to go on” or “cause heavy losses,” then it is insufficient to constitute “disturbing social order” and the Criminal Law should not be applied as one pleases. If citizens gather together merely to articulate a particular demand and do not attack government offices, obstruct traffic, or negatively affect other people’s work or daily life in any other way, then they should be allowed to speak their minds.

Related to this, Article 291 [sic, should be 296] of the Criminal Law provides for the “crime of illegal assembly,” to be used “where social order is seriously disrupted because an assembly, procession, or demonstration is held with no application made in accordance with the law or regulations, where no permission was granted for the application, or where it is held not in accordance with the time for start and stop, venue, and routes permitted by the competent authorities and the order of dismission is disobeyed.” On this point, “serious disruption of social order” should follow the understanding of “disrupting social order” given in the provision discussed above; namely, its key constitutive criteria should include “work in general, production, business operation, teaching, or scientific research are unable to go on and heavy losses are caused.” If it is merely an assembly without a permit but this does not cause any heavy losses, it cannot constitute “serious disruption of social order” and the crime of “illegal assembly” will also be untenable.

It is especially necessary to point out that citizen assemblies are one form of expression protected under Article 35 of the current Constitution and do not fall under the scope of actions that the law may ordinarily restrict or punish; therefore, use of the Criminal Law to punish assembly ought to be done with the utmost caution. Under general circumstances, peaceful assembly is one manner of rational expression of citizen’s demands, especially small-scale assembly that cannot lead to any serious consequences on society. Therefore, these cannot constitute the key criterion of the crimes of “illegal assembly” or “gathering a crowd to disturb social order”—serious disruption of public order—and even less can they be considered acts of endangering state security such as “inciting subversion of state power.”

At present, there is a common misperception that assembly is an “action” and thus substantially distinguishable from ordinary speech. [In this view,] once citizens assemble, it constitutes an “action” and the relevant authorities can use the Criminal Law to suppress it severely. This understanding does not comport with the provisions of Article 35 of the Constitution: “Citizens have the freedom of speech, publication, assembly, association, procession, and demonstration.” Clearly, assembly, procession, and demonstration are listed alongside speech and publication, making them all “speech” or “expression” in the broader sense and enjoying the Constitution’s protection for freedom of speech in this broad sense. Of course, if during an assembly there are violent incidents like riots, arson, or attacks, this clearly enters the realm of action and the state has both the power and the obligation to prohibit these actions. But peaceful assembly is clearly speech, so even if the legal process is flawed the Criminal Law cannot be used to punish it.

Article [296] of the Criminal Law requires assemblies to apply for permission in accordance with law and regulation and treats assembly without requesting or receiving permission to be “illegal assembly.” Applying for permission is indeed a statutory condition for lawful assembly, and just about all countries with rule of law make similar requirements.

But it needs to be pointed out that the goal of this requirement is to ensure that citizen assembly is carried out peacefully and in an orderly manner so that it does not have a negative impact on others’ work, transportation, or rest, and is not a disguised way to deprive [citizens] of their freedom of assembly. Those who give permission may not refuse their approval because they do not agree with the views that those assembled want to express or out of some inexplicable fear of citizens gathering; otherwise, this is an abuse of the permit authority. This is why in countries with rule of law applications for permission to assemble are a formality, with those giving approval simply conducting a procedural review of the time, location, and manner of the assembly and not a substantive review of the content of the assembly. Any assembly without violent tendency will be approved, making assembly a common way in which citizens peacefully express their demands and gather popular support. One could even say that the more orderly a society, the more common citizen assembly is.

It cannot be denied that the reason why the citizen “strolls” and other activities taking place in many parts of China today are treated as “illegal assembly” is to a great extent because local authorities view ordinary assembly as a plague and very rarely approve requests by citizens to assemble. They routinely refuse to approve assemblies on the grounds that they will “seriously disrupt social order,” without ever giving any specific explanation or reasoning—often without even any written decision. Even though under the provisions of the Law on Assembly, Procession, and Demonstration, failure to respond by the statutory deadline can be seen as approval, once citizens take to the streets, police are mobilized to counter the “illegal assembly.” Not only does this not serve to maintain true public order, it even artificially intensifies social contradictions.

Clearly, Article [296] of the Criminal Law cannot be based simply on whether an assembly is “illegal” but must consider whether an assembly constitutes a “serious disruption to social order” and especially needs to review whether the relevant authorities exercised their power to approve the assembly in accordance with the law.

In sum, enforcing the Criminal Law certainly is the mandate of the public security and procuratorial authorities, but this important mandate must be exercised appropriately. First, we must establish a professional habit of respect for the Constitution, because only the freedom of speech provided by Article 35 of the Constitution can serve as the main path toward true social peace.

The Notice requires investigation and punishment in accordance with the law of the corruption behind especially major and serious criminal cases involving safety and accidents and the serious investigation of crimes of office such as corruption, bribery, and malfeasance. This is commendable, but the experience of past years has taught us that corruption and malfeasance cannot be fully investigated only by the procuratorate’s efforts. Especially in a broader context in which independent procuratorial authority does not enjoy full protection, exposure of the corruption and other crimes of many officials has relied on public whistleblowers. If the public’s channels of expression are blocked or the Criminal Law is used to punish the public-spirited, conscientious, and courageous expression of responsible citizens, then the only result will be a chilling effect on the people of noble character in this realm, people of base character will increasingly have nothing to fear, and it will be difficult to realize “peaceful China.”

The author is a professor of constitutional law at Peking University.