Protesting the Wrongful Arrest of Geng Xiaonan in Beijing

Viral Alarm

 

On 20 October 2020, Voice of America reported that:

Authorities in Beijing have detained an outspoken publisher and her husband on suspicion of running an “illegal business operation” after she made public her support for former Tsinghua University scholar Xu Zhangrun, a critic of China’s leaders who is now under house arrest.

Geng Xiaonan and her husband were taken away in September and have both remained in custody, a move observers said was taken to punish Xu, a legal scholar who has criticized President Xi Jinping’s consolidation of power.

Analysts told VOA that the continuing crackdown shows that authorities are targeting supporters of dissidents to isolate and neutralize their criticism.

***

Geng Xiaonan is the founder of privately run publishing company Ruiya Books. Over the years, she has been quietly assisting liberal intellectuals such as former premiere Zhao Ziyang’s aide Bao Tong, who remains under house arrest for supporting the 1989 student demonstrators, and outspoken former Communist Party School professor Du Guang, among others.

Recently, she called for the release of citizen journalist Chen Qiushi, who went into Wuhan to report from the then epicenter of the COVID-19 pandemic and has been missing since March.

She’s also been ordering groceries for outspoken legal scholar Xu Zhangrun since his arrest in July. Xu is blacklisted by most online vendors in China.

Most of her friends said that they believe it’s Geng’s support for dissidents that landed her in prison. Former Tsinghua professor Xu Zhangrun urged others to speak up for Geng’s release. “She is a brave woman. Let us speak up for her, voice our concern for her,” he posted on social media.

Geng is also a friend of Cai Xia, who was expelled from China Party School and stripped of her pension in August over speeches she made criticizing the country’s direction under President Xi. Cai posted on Twitter that several employees of Geng’s company were also arrested. She said Xi’s repressive rule and persecution of dissidents has reached a new high.

Hu Jia, a Chinese human rights activist, told VOA that Geng’s arrest shows that China is not only targeting critics, but also purging their supporters. They are trying to isolate the dissidents by cutting off their access to economic and legal aid, as well as blocking them from international attention.

“Geng acts like a bridge. She’s good at connecting younger and older generation activists; all she did was communication and coordination,” Hu told VOA. “The party now starts to target people like her. Anyone who helps dissidents to contact journalists, lawyers, or offer help to their families will be prosecuted.”

By detaining Geng, he said, the Chinese Communist Party is trying to set an example to others. “Her case shows that the CCP can arrest and prosecute you with charges completely unrelated to activism … there’s always a charge that they can ‘tailor’ for you,” he said.

— from Hai Yan, ‘Chinese Activists Detained for Backing
Former Tsinghua Professor’, VOA, 20 October 2020

***

The following appeal was released in Beijing by six friends and supporters of Geng Xiaonan and her husband on 21 October 2020. They were:

The authors of the open letter invited those who may wish to support their plea to send their full name, professional affiliation and place of residence to the following email address:

  • freegengxiaonan@gmail.com

At the time this translation of the open letter was published, on 22 October, it had already attracted over 140 signatures. Previously, on 19 October 2020, an international appeal for Geng Xiaonan was released in the name of Bei Ming 北明:

Signatories are encouraged to send their details (full name, professional affiliation and place of residence) to:

  • zhongshanjian1928@outlook.com

— Geremie R. Barmé
Editor, China Heritage
22 October 2020

***

Media Reports

An International Petition for Geng Xiaonan

Related Material in China Heritage

On Xu Zhangrun

冤 yuān, ‘injustice’

***

A Public Appeal for the Immediate Release of
Geng Xiaonan and her Husband

請立即釋放耿瀟男夫婦的呼籲信

 

On 9 September 2020, police in Haidian District [Beijing] detained Geng Xiaonan and her husband [Qin Zhen] for questioning in relation to suspected criminal activities. We the undersigned, all of whom are friends of Geng Xiaonan, were astounded by this action. To us, Ms Geng is not merely a law-abiding citizen, she is also a valiant and profoundly decent individual who has proved to be fearless in the face of power and unswervingly devoted to the cause of justice.

If a woman such as this is regarded as having ‘broken the law and engaged in illegal activities’ we collectively demand to know: exactly what laws has she broken and what crimes has she committed?

2020 年 9 月 9 日，耿瀟男夫婦被海淀公安刑事拘留，近日又被海淀檢察院批捕。作為耿瀟男女士的朋友，我們深感震驚。在我們眼裡，她不僅一直是一位守法公民，更是 一位急公好義、不畏權勢、仗義執言的當代俠女。如果這樣的女子會「違法犯罪」，我們不禁要問: 她究竟違了哪條法、犯了什麼罪?

According to the available information, [Ruiya] the cultural and publishing enterprise operated by Geng Xiaonan and her husband supposedly ‘printed and distributed illegal material’ in contravention of the relevant publishing regulations. We are all cognisant of the fact that legalistic interdictions against ‘illegal business operations’ are, in reality, a hangover and extrapolation of the bans on ‘profiteering’ that existed during the era of the planned economy. This ill-defined and nebulous expression [— ‘engaging in illegal business activities’ — ] is used to cover what is known as a ‘portmanteau crime’. [See the Note at the end of this paragraph.]

In the context of the publishing industry, accusations of ‘illegal business activities’ are all too readily employed to suppress the right of citizens to enjoy their right to free speech and to control freedom of expression across the board. This is why it is crucial that such accusations should only be levelled against an individual or an entity with due circumspection.

We would note that, Article 55 of ‘Regulations on the Administration of Publication’, approved by the State Council in 2005, which declares that: ‘Whoever, without being approved … is unauthorizedly [sic] engaged in the business of publishing, printing/reproducing, importing or distributing publications’ may be determined to be engaged in an ‘illegal business operation’, flagrantly contradicts Article 35 of the Chinese Constitution which clearly states that: ‘Citizens of the People’s Republic of China enjoy freedom of speech, of the press, of assembly, of association, of procession and of demonstration.’

It is for this reason, we must insist, that Article 55 of the Publication Regulations is without a valid basis in law and, as such, it should not be used to prosecute citizens.

[Note:

In the 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.

— from ‘Xu Zhangrun: “I Am Compelled to Speak Out in Defence of Geng Xiaonan” ’
China Heritage, 24 September 2020]

有關部門指控耿瀟男的罪名是「非法經營」，據說她夫婦經營的文化傳播公司存在 「印刷、銷售非法出版物」的行為，違反了現行出版管理的有關規定。我們知道，「非法經營」從計劃經濟時代的「投機倒把」蛻變而來，已經成為一個邊界模糊、定義任性 的「口袋罪」; 用在出版領域，「非法經營」很容易成為壓制公民言論與出版自由的工具和藉口，因而必須尤其慎重。2005年國務院《出版管理條例》第55條規定:「未經 批准……自從事出版物的出版、印刷或者複製、進口、發行業務」的行為可構成非法經營罪。然而，這項規定顯然違反了現行憲法第35條:「公民有言論、出版……的自由」，因而不應被賦予法律效力，尤其不得被用來給公民定罪。

Freedom of expression and freedom of the press are germane to any constitutional order seeking to vouchsafe a nation’s long-term social and political stability. China is no exception to this rule. There is abundant proof of the importance of this from our own recent history [when the repression of public expression contributed to various political and humanitarian disasters] — from the time of the Great Famine [resulting from the Great Leap Forward policies of the Chinese Communist Party in 1959] right through the ‘Cultural Revolution’ era [c. 1964-1978], or, indeed, from the time of the SARS outbreak [during the  years 2002-2004] right up to the corona virus [of 2019-2020]. We hardly need to go into the details [of these events and their impact] here.

Long before this [detention of Geng Xiaonan and her husband], a regime of stringent censorship had been imposed on the media and publishing market in China, the effect of which has been to render the nation increasingly silent. Public speech and the flow of information have been strangled into a monotone and vast quantities of vacuous verbiage and hyperbole are being churned out.

[Note: see, for example, ‘Mendacious, Hyperbolic & Fatuous — an ill wind from People’s Daily’, China Heritage, 10 July 2018.]

Meanwhile, unspeakable trash like Peace Mantra [《平安經》 by He Dian 賀電, pro-Communist Party nonsense in the style of Who Moved My Cheese?] blithely sails through the thicket of the publication bureaucracy to enjoy an official release. You’d think that this was the result of some ridiculous fluke, but it is an inevitable byproduct of the present system.

China’s draconian publication regime is in direct contravention of the national constitution; its operation is now seriously limiting the healthy evolution of the publishing industry. The dampening effect harms the nation as a whole, one that increasingly relies on the free flow of ideas and information. The publishing industry is paying an unsustainably heavy price for the present regimen. In circumstances such as these, to contravene publishing regulations that themselves are constitutionally unlawful is not ‘breaking the law’, rather it should rightly be regarded as an estimable expression of a citizen’s rights as clearly stipulated in Article 35 of the Constitution.

言論與出版自由是任何一個國家得以長治久安的憲法基礎，中國絕非例外。從「大 飢荒」到「文革」、從「非典」流行到新冠肆虐，對言論與出版自由的管控所造成的社會災難有目共睹、無需贅述。對出版領域的嚴格管控早已使中國的輿論與圖書市場變得噤若寒蟬、萬馬齊喑，產生了嚴重的信息單一化和大量假大空文字; 粗俗低劣的《平安經》居然手續齊全、正式出版，貌似不可思議，實際上是出版管制的必然結果。違憲的出版管理體制已嚴重制約了中國圖書市場的正常發展，也嚴重損害了中國最大的國家利益——思想與信息的自由流通，並讓圖書出版行業承受了不可承受的昂貴成本。在這種情況下，違反一個公然違憲並損害社會利益的行政規定不僅不是「違法」，而恰恰是在踐行憲法第 35 條規定的公民基本權利。

Even if one were to follow the logic propounded by the existing regulations, it is impossible to construe Geng Xiaonan’s activities as being illegal.

In the first place, the authorities have not indicated which if any of the contents of the works published and distributed by Geng Xiaonan and her husband can be deemed ‘questionable’. Regardless of her feisty personal honesty, the books that Ms Geng has published relate to children, cuisine, cooking and nutrition. They have enjoyed considerable success in the marketplace and are in no way tainted by accusations of ‘political sensitivity’. Moreover, ‘illegal business activities’ are supposed to have a negative impact on the orderly functioning of the market and have a deleterious impact on society more generally. There is, however, no evidence to indicate that this has been the case in either regard.

Even if so-called ‘illegal business activities’ were the real issue, then surely some individual or entity would have made an accusation and launched a formal legal action to seek compensation for damages. There are no reasonable grounds [in this case] for the government to employ state power to fabricate a crime and to take action unilaterally in such an entirely unjustifiable manner. To detain Ms Geng and to mount a case against her in this fashion is an egregious abuse of power.

即便按照現行法律規定，耿瀟男女士的行為也不構成違反刑法。首先，有關部門並未指控涉嫌違規印刷的那部分出版物在內容上存在任何「問題」。雖然耿瀟男個人直率敢言，但她經營的出版物全部是少兒、美食、烹飪、營養類書籍，在市場上相當受歡迎， 沒有任何敏感內容。其次，「非法經營」的構成要件是產生破壞市場秩序等有害的社會後果，而沒有任何證據表明，耿瀟男經營的任何出版物產生了任何有害的社會後果。事實上，所謂的「非法經營」至多只是損害了出版社或作者的私人利益; 即便確實存在違法經營，也應該由這些私人主體提出民事訴訟並要求賠償經濟損失，而不是由國家公權力以刑事犯罪的名義越俎代庖。對她進行刑事拘留和指控，是國家刑事權力的嚴重濫用。

To reiterate: even if the authorities reach a determination that Geng Xiaonan is guilty of a crime, in so doing they will be acting in direct contravention of the Chinese Constitution. After all, it is widely recognised that the punitive actions being pursued by the authorities have nothing to do with Ms Geng engaging in so-called ‘illicit business activities’. Rather they are a response to her recent principled and brave advocacy on behalf of Xu Zhangrun, Xu Zhiyong and Chen Qiushi [during the coronavirus epidemic], all of whom have in various ways been sanctioned for exercising their own right to freedom of expression.

[Note: for details of statements made by Xu Zhangrun, Xu Zhiyong and Chen Qiushi’s during the coronavirus crisis, see:

The accusation of ‘engaging in illicit business activities’ is a flimsy pretext used by the authorities to punish Geng Xiaonan for having exercised her right to the freedom of expression. As a result, the concerned government organs are themselves in breach of Article 35 of the Chinese Constitution. That is to say, they are flagrantly engaging in an ‘abuse of power’, something expressly interdicted in Article 70 of the ‘Administrative Procedure Law’ of this country. Even if the actions of the authorities may, by an objective measure, be regarded as being without procedural fault, the premise of those actions was flawed from the start. Therefore, they are, both in terms of subjective motivation and objective application, in breach of the law.

最後，即便有關部門認定耿瀟男構成刑事犯罪，其主觀動機也顯然違法——眾所周 知，他們的矛頭指向不是什麼「非法經營」，而是耿瀟男女士最近一段時間為許章潤、許志永、陳秋實等因言獲罪的義士勇敢發聲。「非法經營」只是一個藉口，其真實動機 是懲罰耿瀟男的言論，因而有關部門的所作所為不僅違反了憲法第 35 條，而且也構成 了《行政訴訟法》第 70 條所定義的「濫用職權」。「濫用職權」指的正是這種主觀違法: 即便公權行為在客觀上完美無瑕，但是只要動機不正當，那麼主觀違法行為和客觀違法一樣無效。

The vast majority of Chinese people are susceptible to a logical fallacy: that is the belief that only those who are ‘clean’ [or ‘blameless’] have the right to criticise the government, otherwise, it is reasoned, you shouldn’t be surprised if the government creates problems for you.

But, pardon us: this is the logic of the street tough and the gangster. It is a logic that we reject categorically.

Citizens are not saints; citizens are fallible. Be that as it may, they all enjoy the rights as stipulated in Article 35 of the Constitution and they should not be subjected to nefarious political action aimed at victimising them. If only ‘saints’ are allowed to enjoy the protection of the Constitution, then the 1.4 billion men women and children of China would, in effect, have no rights at all.

這個國家的絕大多數人一直生活在一個思維誤區之中，那就是你要批評政府，自己 首先要「乾淨」;否則，就別怪政府找你的麻煩。對不起，這是一個流氓邏輯，我們拒絕接受。公民不是聖人，公民是會犯錯的，但是並不因此就喪失了憲法第 35 條規定的 基本權利，就必須忍受公權力別有用心的迫害。假如只有「聖人」才能行使憲法權利， 那麼這個國家的 14 億男女老少就沒有一個人能夠行使任何一條憲法權利。

For better or worse, this is our homeland. We, like Geng Xiaonan, are devoted to this place and in our pursuit of that devotion we are mindful that we should enjoy the full protection of our freedom of speech and publishing, as guaranteed by the Constitution. Jointly we endeavour to further those very things that underpin a civilised society and in so doing we resist all abuses of our rights by the Powers That Be. We do so even as we face the threat that by acting in this way we will forfeit effective protection by the very law that is ours and be deprived of the rights that we should enjoy and seek to champion.

不論我們是否喜歡，這裡是我們的家園。我們願和耿瀟男女士在一起，共同守護這個家園，共同行使憲法規定的言論與出版自由，共同遵守並維護一個文明社會所應有的 基本底線，共同抵制公權力的嚴重濫用——儘管我們的權利得不到法律的有效保護，即便我們為了維護本來屬於我們的共同權利會面臨風險。

This is why we are of the opinion that in the present case Geng Xiaonan is not the offending party. On the contrary, the law breakers are those who have detained her. It is for this reason that we strenuously appeal to the authorities concerned to heed the Constitution, respect the dignity of the law and release Geng Xiaonan and her husband forthwith.

基於以上理由，我們認為在此次事件中違法的不是耿瀟男，而恰恰是拘捕她的有關部門。我們強烈籲請有關部門顧及憲法與法律的尊嚴，立即恢復耿瀟男夫婦的人身自由。

We the undersigned launch this appeal on behalf of Geng Xiaonan:

Xu Zhangrun, former professor, Faculty of Law, Tsinghua University
Li Xianting, art critic
Hao Jian, retried professor, Beijing Film Academy
He Weifang, professor, Faculty of Law, Peking University
Zhang Qianfan, professor, Faculty of Law, Peking University
Guo Yuhua, professor, Sociology Department, Tsinghua University

發起人:

許章潤: 原清華大學法學院教授
栗憲庭: 中國藝術評論家
郝建: 北京電影學院退休教授
賀衛方: 北京大學法學院教授
張千帆: 北京大學法學院教授
郭於華: 清華大學社會學系教授

We invite those who wish to add their names to our call to send their full name, professional affiliation and place of residence to the following email address:

freegengxiaonan@gmail.com

願意聯名支持這封呼籲信的人士，請將您的姓名、職業、居住地發送到:

freegengxiaonan@gmail.com

(按姓名拼音順序)