Professor Xu Zhangrun was detained by police at his apartment in the western suburbs of Beijing on the 6th of July 2020. Accused of having solicited a prostitute during a trip to Sichuan in November 2019, Xu was questioned for six days before being released without charge. That trip had been organised by the publisher and film-producer Geng Xiaonan for a group of friends including Xu, the art critic Li Xianting and Rong Jian, a cultural commentator and gallery owner.
During the week of Xu Zhangrun’s detention, Geng Xiaonan spoke publicly in his defense, including to the international media, behaviour expressly forbidden by the Chinese authorities. Geng also lobbied Xu’s friends in China and overseas to bring pressure to bear on his captors for his release.
Tsinghua University, Xu Zhangrun’s employer, took advantage of the nettlesome professor’s beleaguered state and dispatched a delegation to where he was incarcerated. They presented him with a formal notification of dismissal. Not only had he lost his job, he was also stripped of accreditation as an educator and deprived of his pension.
Some two months later, on 9 September 2020, Geng Xiaonan and her husband, Qin Zhen, were detained by the authorities. On 12 September, the police issued a statement confirming that the couple had been arrested and were under investigation on suspicion of having engaged in ‘illegal business activities’. In response, Xu Zhangrun issued ‘A Letter to China’s Dictators’ which resulted in him being detained yet again and questioned at length. He was warned not to write or say anything else about the Geng Xiaonan case.
At this time, the detained couple’s legal counsel was repeatedly frustrated by the authorities in their attempts to secure a face-to-face interview with the accused. This contributed to Xu Zhangrun’s decision to compose the following statement, dated 17 September. It was released publicly on 21 September.
According to individuals privy to the situation, Xu Zhangrun was interrogated about this statement by the police on the 23rd of September. He was subsequently released.
Xu Zhangrun’s personal circumstances are a variant of formal incarceration. Subject to a relatively lax form of ‘supervised residence’, his movements are monitored by the police. Deprived of an income and of his pension, Xu’s living situation is stretched and, without access to online shopping or WeChat transactions (his WeChat account was suspended in July), he cannot make purchases nor, since his name is interdicted on the Internet, can friends make any on his behalf.
My thanks to Reader #1 for reading the draft of this translation and to friends in the Australian legal fraternity for their suggestions. Explications and notes are indicated by square brackets.
— Geremie R. Barmé
Editor, China Heritage
24 September 2020
- ‘Geng Xiaonan, a “Chinese Decembrist”, and Professor Xu Zhangrun’, China Heritage, 10 September 2020
- ‘瀟男夫婦9月10日被失去自由，羅列經濟罪名抓捕。這是她自己預感到要被動手前的徵兆，接受亞洲自由電台北明女士的採訪，做的自述。有愛心的朋友請幫著一起傳播呼籲停止對她們的加害和恢復對她們的人生自由’, 《庚子自由談》, 2020年9月11日
- ‘Geng Xiaonan’s Dance of Defiance’, China Heritage, 16 September 2020
- ‘The Kafkaesque Trials of Geng Xiaonan’, China Heritage, 20 September 2020
- Phillip Adams, ‘Geremie Barmé on China’, Late Night Live, 24 September 2020
… the surest defense against Evil is extreme individualism, originality of thinking, whimsicality, even — if you will — eccentricity. That is, something that can’t be feigned, faked, imitated, something even a seasoned imposter couldn’t be happy with. Something, in other words, that can’t be shared, like your own skin; not even by a minority. Evil is a sucker for solidity. It always goes for big numbers, for confident granite, for ideological purity, for drilled armies and balanced sheets. Its proclivity for such things has to do with its innate insecurity, but this realisation, again, is of small comfort when Evil Triumphs.
Questioning China’s Scholars of
Translated & Annotated by Geremie R. Barmé
Gentlemen & Ladies of the Law,
As you are all specialists in criminal jurisprudence I have chosen to address this to you. My early studies also led me to pursue a professional interest in your field and, over the years, I have published a not-inconsiderable body of work related to it. As a result, for better or worse, I am your confrère.
As you are well aware, following countless appeals the regnant power promulgated a ‘Criminal Law’ back in 1979. If nothing else, that code proved to be a considerable advance on the days in which there was ‘No Law and Nothing was Sacred’ 無法無天. [See the Note at the end of this section.] Even then, the new law was produced half a century after the government of the Republic of China had enacted its own ‘Criminal Code’ in 1928. Moreover, it was nearly seventy years since the ‘New Criminal Code’ [which was the first modern law of its type in Chinese history] was drafted during the last-minute reforms of the Qing dynasty.
At the time, the 1979 ‘Criminal Code’ included articles that addressed such crimes as ‘profiteering’ [in Articles 117, 118 and 119] and ‘hooliganism’ [Article 160]. Over the years, the stipulations regarding those two ill-defined crimes were repeatedly deployed in a manner that allowed courts considerable latitude in their application. Will we ever know how many unjust rulings were made as a result?
In legal terminology of our system, these nebulous offenses have a particular designation; they are called ‘Portmanteau Crimes’ 口袋罪. That is to say, if the authorities want to pin some charge on you, then they have a capacious bag of criminality on hand in which everything can be consigned. The glaring deficiencies of such an approach and the pernicious consequences resulting from it have been so numerous that eventually — and in response to all but universal condemnation — those articles in the ‘Criminal Code’ were revised. I would observe that, when gross error is finally recognised by the system, change is sometimes possible.
In 1970, the pro-Party American journalist Edgar Snow reported on what would be his final encounter with Mao. As he was leaving the Chairman’s book-lined study in the party-state compound of Zhongnanhai, Mao described himself as ‘only a lone monk walking the world with a leaky umbrella’ 和尚打傘 / 無髮[法]無天. In an essay written following Mao’s death in September 1976, Pierre Ryckmans (Simon Leys) observed that:
‘With its mixture of humorous humility and exoticism, this utterance had a tremendous impact on Western imagination, already so well attuned to the oriental glamour of the Kung Fu television series. Snow’s command of the Chinese language, even at its best, was never very fluent; some thirty-odd years spent away from China had done little to improve it, and it is no wonder that he failed to recognise in this ‘monk under an umbrella’ (heshang da san [和尚打傘]) evoked by the chairman a most popular Chinese joke. The expression, in the form of a riddle, calls for the conventional answer ‘no hair’ (since monks keep their heads shaven), ‘no sky’ (it being hidden by the umbrella) — which in turn means by homophone (wu-fa wu-tian [無法無天]) ‘I know no law, I hold nothing sacred.’ The blunt cynicism shown by Mao in referring to such a saying to define his basic attitude was as typical of his bold disregard for diplomatic niceties as its mistaken and sentimental adaptation by Snow is revealing of the compulsion for myth-making, of the demand for politico-religious kitsch among certain types of Western intellectual.’
— from ‘Aspects of Mao Zedong’, quoted in GR Barmé
‘Beginning Chinese with Pierre Ryckmans’,
The China Story, 30 November 2015]
Still, in contemporary Chinese judicial practice a grab bag of ‘Portmanteau Crimes’ remains. It includes such vastly disparate charges as ‘creating disturbances’ [尋滋, short for 尋釁滋事罪, ‘the crime of causing a public disturbance’], ‘inciting subversion’ [煽顛, short for 煽動顛覆國家政權罪 ‘the crime of inciting subversion of state power’] and ‘engaging in illegal business practices’ [非法經營罪], which are lumped together willy-nilly.
In cases when the publishing industry is the focus of a criminal investigation [involving, for example, Geng Xiaonan and her husband, who are being investigated for ‘illegal business activities’] it has absolutely nothing to do with the first two crimes listed above. After all, as many friends have observed [publishing is hardly an autonomous field], the government enjoys a monopoly over the nation’s publishing resources and exercises strict control over the issuing of book numbers [CSBN, or China Standard Book Numbers]. In fact, the entire process involved in publishing printed material in China today is subject to what is arguably the most seamless system of oversight and censorship in human history.
As a result of these controls, among the smaller players in the industry the system generates a feeling of incessant trepidation. Not only are they at the mercy of a publishing regime that closely moderates the trade in book numbers, the question of book distribution is even more fraught. Added to that is an unreasonable regime of taxation that forces non-state actors in the industry to skirt dizzyingly on the border of legality merely to survive. It isn’t that publishers want to break the law, but the legal framework in which they are obliged to operate is purposefully unclear, so much so that they constantly feel imperiled. Furthermore, the minute anyone involved in publishing causes offense to the power holders by saying something ‘out of line’, they can be hauled in and penalised without warning.
Not too long ago, the Pastor [Wang Yi 王怡 in Chongqing] was tried for ‘illegal business operations’ [and, on 30 December 2019, for ‘inciting subversion of state power and illegal business operations’]. Now Geng Xiaonan and her husband are being victimised by being accused of the same crime. Separated though they might be both by geography and time, the situation of Wang Yi and Geng Xiaonan is strikingly similar.
China has now been submerged in a swirling Red Tide for seven long decades. During that time, our land has failed to nurture any truly standout intellectual talents, nor can it boast of a culture that adequately reflects the vast scale and deep history of our people. Even less have we seen anything commensurate with this nation’s true potential, be it either in terms of theoretical attainment or scholastic excellence. Why? Because of constant censorship and political malevolence, a regimen that has ceaselessly forced people to live fearful lives; they are psychologically crippled and spiritually emasculated, reduced to a submissive and self-effacing state of mere survival. The creative genius of the nation as a whole has, to all intents and purposes, been thwarted!
But, now to my point: faced with this tragic history, just as legal thinkers have previously noted [as in the case of Xie Chaoping 謝朝平, who was persecuted in 2010 for engaging in ‘illegal business practices’ by publishing his book The Great Relocation 《大遷徙》] ‘the law should not be a tool that is selectively applied so as to repress free expression’. Otherwise [as an article published by the Hongyi Society of Beijing Normal University 北師大弘毅社 in April 2016 stated], ‘we will all end up being endangered’. When just such a state of affairs becomes a universal reality, how can we expect true intellectual creativity or academic achievement? Given this context, the article in the ‘Criminal Law’ under discussion — that is, Article 225 [see the Note below] — when extended to publishers, must definitely be declared to be a bad law. Moreover, its negative impact reaches far beyond the publishing industry.
Is that not indeed the case, Gentlemen and Ladies of the Law?
Article 225 of the ‘Criminal Law’ states that:
‘Whoever, in violation of the state stipulations, commits one of the following illegal business acts, which disrupts the market order and when the circumstances are serious, is to be sentenced to not more than five years of fixed-term imprisonment, criminal detention, and may in addition or exclusively be sentenced to a fine not less than 100 percent and not more than 500 percent of his illegal income and, where the circumstances are particularly serious, be sentenced to not less than five years of fixed-term imprisonment and a fine not less than 100 percent and not more than 500 percent of his illegal income or the confiscation of his property:
‘(1) engage in the monopoly business or monopolized commodities stipulated in laws and administrative regulations, or other commodities whose purchase and sale are controlled, without permission; (2) purchase and sell import-export licenses, certificates of origin, and operation permits or approved documents stipulated by other laws and administrative regulations; (3) conduct other illegal business activities that seriously disrupt the market order.’
— from ‘Criminal Law of the People’s Republic of China’
(amended 14 March 1997]
The ongoing formulation and application of ‘Portmanteau Laws’ like this repeatedly leads to justice being distorted or denied; punishments are meted out in an irregular and exaggerated fashion and in the process the judiciary errs either in favour of the outrageously onerous punishments or farcically light one. There is an egregious real-world disconnect between what exactly constitutes innocence or guilt [in any given case]. This begs the question: Why is this so?
Putting aside the original and stated intentions of the legal thinking involved, one cannot escape the conclusion that the scholastic inadequacies and moral limitations of the specialists involved in criminal jurisprudence are at fault. Previously, for example, the law pertaining to ‘engaging in prostitution with an underage girl’ was universally and rightly condemned as absurd [due to the fact that, in practice, it often led to offenders who, in many cases were actually raping their victims, being given lenient sentences]. It woefully failed to satisfy the universally acknowledged need to protect the well-being of underage girls. In practice that law gave the accused a way of escaping punishment or at least of avoiding a heavy penalty [for their actions]. Given our present social and political circumstances, codifying ‘illegal business activities’ as a punishable crime merely serves to license the legal authorities to apply it in an elastic fashion while providing scant protection to the accused against being unjustly judged. This is, in and of itself, seriously detrimental to the basic legal tenet that the law should, above all, protect the rights of citizens. This situation has no appropriate legal rationale.
After all, in the face of the overwhelming superior force of the state and an all-powerful government, the average citizen invariably finds themselves in a position of weakness. The duty of the law should be to protect the rights and freedoms of citizens. It should forever be alert to and alarmed by any overreach or abuse of state power. At the very least, it should strive to establish a legal system that can effectively mediate the imbalances of power between the state and the individual. Failing to do so merely provides the law with an all-encompassing and inescapable net that any and everyone must be afraid of being ensnared in.
If truth be told, the study of criminal jurisprudence is not all that scholastically demanding nor is it particularly intellectually challenging. Since by its very nature it must deal with matters of life and death, criminal jurisprudence does, nonetheless, play a crucial social function in underpinning adjudications over life, freedom and personal property. For this reason the underlying legal rationale and the legal vocabulary found in criminal jurisprudence are perforce painstakingly precise, while both must, at the same time, also conform to the broader socio-political enterprise of vouchsafing individual rights. Unfortunately, as things stand at present, scholars of criminal law, regardless of your particular mental disposition or personal volition, are reduced to being little more than functionaries. Moreover, most of you are professionally fixated on the dogmas of an outmoded and cruel authoritarianism, one that remains bound up with ‘The Two Handles: Guns and Daggers’ [槍桿子刀把子].
On 2 April 1990, less than a year after the April-June Protest Movement rocked the nation, the Communist Party released a formal notification declaring that social stability would be maintained relying on ‘guns and daggers’. It declared that:
‘The Army is the Gun in the hands of the Party and the People and the legal system is the Dagger in the hands of the Party and the People.’ 軍隊是黨和人民手中的 ‘槍桿子’, 政法部門是黨和人民手中的 ‘刀把子’]
The reality in China today is neatly summed up in the definition of the ‘State Artist’ found in The Velvet Prison. [See the Note below.] When describing the New Socialist Person, the author of that book said that because ‘Without a qualm he exchanges his wizard’s robe for the lab coat of the engineer’, therefore, ’They are angry on behalf of the new state, not at it.’ Just like the scientists [and creative figures described in the book], they too have long since learned to enjoy the special privileges afforded by the system, as well as the sense of security and the pride in their influence that it ensures. The tradeoff is that they must abandon all intellectual curiosity and the heartfelt passion they may have previously felt. In short, [as the author observes], ‘These artists are educated to be unable to create anything unpublishable’ [going on to say that: ‘They are trained to be creative executioners’]. By pledging their loyalty to the system and selling out their own profession, such State Artists [or scholars of law and other apparatchiki] aid and abet the tyranny by doing its dirty work for it. In the process, their only real accomplishment is the generation of absurdly large piles of vacuous prose of the kind sanctioned by the state.
In The Velvet Prison: Artists Under State Socialism, written in the early 1980s and published in English in 1987, the dissident Miklós Haraszti dissected the evolving regime of censorship in Hungary. As Simon Leys observed at the time: ‘When totalitarian thought control reaches its perfection, institutional censorship becomes obsolete. Miklós Haraszti analyzes this paradox with disturbing wit.’ A Chinese translation of The Velvet Prison appeared under the title 《天鵝絨監獄》, translated by Dai Weina 戴濰娜. Ironically, or fittingly, it was published by the Central Compilation Bureau 中央編譯出版社 in Beijing, a body charged with constructing the Communist Party’s empire of words. For more on The Velvet Prison in China, see: ‘Less Velvet, More Prison’, China Heritage, 26 June 2017.
For more on the New Socialist Person in China, see: ‘Homo Xinensis’, China Heritage, 31 August 2018]
The so-called ‘crime of illegal business actions’, as described in the present legislation, is one of the banal contributions of your profession to society. The socio-political impact of such banality acts, in turn, as a kind of heartless revenge on everyone in the society itself. And, as for the extreme minority of hard-core figures who twist the law to suit their nefarious motives, well, they simply have no sense of decency at all. They are nothing less than handmaids of terror in the mould of Andrey Vyshinsky [the Procurator General of Stalin’s Great Purge].
If we take a sideways glance at things, we all will have observed the recent behaviour of that ‘famous quack’ [Zhong Nanshan 鐘南山; here Xu Zhangrun actually calls him a ‘vet’ 獸醫, a disparaging term used to describe medical incompetence]. When presented with a new gold collar [on 8 September 2020 Zhong received a ‘Medal of the Republic’, the highest state honour, from Xi Jinping in recognition of his contribution to the campaign against COVID-19], this much-lauded character had the temerity to remark: ‘I have been lucky to be born into this Prosperous Age and I will contribute my all to it’ 生逢盛世, 該不負盛世! [See the Notes below for more on Zhong Nanshan and the term ‘Prosperous Age’.] Okay, let’s take him at his word: If you really want to call this a ‘Prosperous Age’ in the context of the ancient practices of our nation we would expect that, like then, we would be celebrating the fact that ‘punishments are light and taxes not burdensome’ [here the author has reworked the ancient expression 輕徭薄賦 qīng yáo bó fù] and that we would all be enjoying relaxed government rule and care not to act in an onerous fashion [a reworking of 明德慎罰 míng dé shèn fá].
In May 2020, Xu Zhangrun published a scathing critique of Zhong Nanshan and what he identified as Zhong’s hypocritical and politically opportunistic role during the COVID-19 crisis. See ‘習近平鮮廉寡恥、亙古罕見；鐘南山乃偽君子假扮大眾英雄；徹底追責需至最高政治責任，交由國法論處!’, 《華爾街電視》, 2020年5月22日.
‘Prosperous Age’ 盛世 shèng shì is a term associated with particular golden ages in China’s dynastic past. A ‘prosperous age’, traditionally only ever declared after the fact, was, as the author notes, characterised by social harmony, relaxed and moderate government, as well as intellectual curiosity and cultural creativity. For more on this topic, see: China’s Prosperous Age (Shengshi 盛世), China Heritage Quarterly, Issue 26 (June 2011).
This should be even more necessary during a year of disasters like this [which has seen the coronavirus epidemic and devastating floods]. At such times, it is more urgent than ever for the rulers to display magnanimity towards the people to ensure calm and stability. If things can be dealt with through economic means under no circumstances should police action be pursued; if administrative punishments can be duly meted out, under no circumstances should criminal procedures be launched. This is the rule of economic penalties, something that is an expression of a circumspect self-restraint necessary in the application of criminal law. As such it is grounded in an appreciation of human realities; it gives expression to state rationalism. Why then do those who laud China’s so-called Prosperous Age extoll things that are exactly the opposite to this?! So, instead we see policing methods being used to deal with political disagreements; the imposition of malign laws for the repression of justified democratic hopes; and, when push comes to shove, an unhesitating willingness to wield the criminal code to force people into silence. Time and again history has proven that, when the legal system is perverted, the rule of law is effectively abolished. That then befouls politics itself. Over time even this proves to be incapable of holding back the ever rising tide of democratic political aspiration.
Our country and our people have suffered far too much for far too long. The first three decades [of Communist Party rule, from 1949 to 1979] were punctuated by fifty ‘political movements’. They generated countless cases of ‘injustice, false accusations and incorrect judgements’. They led to the senseless death of tens of millions of people. It is only in recent times that, in the breathing space allowed, people have been able to seize the initiative and make better lives for themselves. They have, finally, enjoyed some peace and quiet and they have been allowed to pursue a meaningful livelihood to sustain their families. Some compatriots have even had the wherewithal to travel and enjoy leisure time activities. They have also been wealthy enough to pursue interests in the creative arts as well as scientific exploration, thereby realising some of the higher goals of life.
These changes, and I’m only talking about the last few decades, have come about because of one thing and one thing only: a ‘relaxation of control’. The reality is that people finally have been given a way out, a way to truly live, to pursue their own path in life. Yet now, here we are again: the totalitarian mindset has been revived and it is working hard on every front to generate conflict and stir up new civil strife [of the kind that Mao Zedong had privately celebrated at his birthday banquet in December 1966 when he toasted the fact that China had fallen into a state of civil war, or as he put it: ‘祝展開全國全面內戰!’]. The aim is to maintain one-party rule at all costs, despite what that could well mean for the prosperity and wellbeing of hundreds of millions of people. What can possibly be in the rulers’ minds?
Returning to the matter at hand: this daring, independent woman [Geng Xiaonan] has been cast into jail. This has been done as a warning to others. It is a classic example of someone being accused of a concocted crime in punishment for her having had the temerity to speak out. No one is in any doubt as to the motivation behind this. They are employing economic penalties to silence political opposition, to use criminal procedures to silence an outspoken person, and by so doing to warn the multitude to submit and obey.
This punishment has been shown up as the dirty little trick it really is. Let me be clear: doesn’t Ms Geng’s trouble stem from the fact that she protested against the treatment that was meted out to me, Xu Zhangrun [when I was detained in early July on trumped up charges of soliciting prostitutes]?
Moreover, to take things out on a woman who has no major backers in this fashion, and to do so with such martial fanfare, has only managed to elicit widespread sympathy for her plight. There has been a very negative response to your actions both within China and internationally. Furthermore, the arrant behaviour of those entrusted as the agents of justice is daring only in so far as it has caused a storm of public outrage. Taking these factors together, and in light of the negative social response, even if one’s sole concerned is bolstering the image of the party-state and that your actions uphold the law for the sake of ‘stability maintenance’, in actual fact, all that you have managed to do is to create even more problems for yourselves. In short, actions such as these are remarkably stupid!
This targeted attack on Geng Xiaonan and her husband has, unfortunately, been undertaken on the grounds of one of the ‘grab-all crimes’ discussed in the above. On the basis of the principle of presumption of innocence in the nation’s legal code, before a final judgment has been made in regard to a case, the accused has to be regarded as being innocent. Not only do they have the right to defend themselves, as citizens they too, like all of us, enjoy freedom of speech, something guaranteed in the constitution. They too, like all of us, also have the right to defend their good name.
Therefore, I, Xu Zhangrun — for my sins a scholar of the law for forty years — on the basis of my academic training and intellectual standing (things that no official instrumentality can strip me of) — do hereby claim by writing this statement the right to defend Geng Xiaonan. Furthermore, I declare that in so doing I am defending to the best of my abilities the cause of justice in China.
May the surging waters of all that is decent and just wash over this land. May the principle of fairness act as the sunlight, bringing light to all quarters.
You legal scholars have produced reams of work that, if piled high, would overshadow you. Like me you are witness to this injustice; you are aware that the misuse of criminal procedures is itself a crime. This is about natural justice and human decency. Above all, it is about the personal safety of those ensnared.
What do you make of my argument?
Don’t you share a pressing sense of outrage?!
First Day of the Eighth Month of the Gengzi Lunar Year
17 September 2020 CE