Viral Alarm

 

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.

Following his release on the 7th of July, Xu Zhangrun was notified to report to the local authorities at the end of the month to confirm his status as an ‘unemployed individual’.

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

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Related Material:

• ‘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

• Viral Alarm: China Heritage Annual 2020
• Xu Zhangrun 許章潤 Archive (1 August 2018-)

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Questioning China’s Scholars of
Criminal Jurisprudence  
致疑刑法學家

Xu Zhangrun
許章潤

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 something on you, they have a capacious bag of criminality on hand to 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.

[Note:

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]

諸君以刑法學為業，在下早年亦曾誤入此途，略有產出，差類同行。同行皆知，1979年，千呼萬喚，國朝頒布《刑法》，比無法無天好。此距民國政府1928年頒行《刑法典》，已然過去半個世紀，而距清末變法更張，制頒《新刑律》，则將近七十年矣！考1979年《刑法》，曾規定「投機倒把」與「流氓」兩罪。多少年裡，拿捏隨心，出入人罪，不知冤枉幾何，適成所謂「口袋罪」，想治你，就把你裝進去。積弊既眾，造孽多矣，廣遭詬病，這才修法刪订，也算知錯能改。

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?

[Note:

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]

今則有所謂「尋滋」、「煽顛」與「非法經營罪」，情形類同，也是一大「口袋罪」。僅就後者而言，引入出版行業，更是牛头不对马嘴。如吾友所言，政府壟斷出版資源，嚴控書號審批，整個出版流程更是實行人類史上最為嚴苛的書報檢查制度。由此導致小型私營出版企業步履維艱，不僅受控於政府出版機構的書號買賣，而且為發行戰戰兢兢，加上乖張之稅收規定，逼得他們不得不為生存而遊走於法律的邊緣。不是他們不願守法，而是現有立法與做法之模糊本身，導致其處境艱危。更何況，一旦從業者言論「出格」，得罪有司，便可以隨時據此論罪。前有牧師傳教居然定罪為「非法經營」，現有瀟男夫婦同罹此罪，雖時空有別，而情形如一。紅潮七十年，華夏了無思想建樹，亦無與國族規模相匹配之像樣文化、理論和學術成就，蓋因鉗口苛政之下，人人觳觫，心氣萎頓，精神陽痿，人格卑微，遂致文明創造力隳矣！而正是在此，面對慘史，恰如此前論者所言，「法律不能成為執法者選擇性適用以箝制言論的工具」，否則，「我們將人人自危。」那時節，還談什麼思想創發與學術建樹。就此而言，此罪法條，也就是現行刑法第225條，一旦擴大適用於出版業，可謂不折不扣之惡法。而且，惡劣影響所及，已然超逾出版行當。——是不是這樣，諸君説呢？

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.

刑事立法屢現「口袋罪」，導致量刑畸輕畸重，乃至於有罪無罪之重大出入，原因何在？拋開立法旨意鋒芒所向之本心本願不論，則刑法學家們的學理疏忽與德性虧損，在此難辭其咎。如同曾有「嫖宿幼女罪」這一立法之举世无伦荒唐，全然罔顧幼女身心保護的普世準則，而為真正罪犯製造了脫罪理由或者逃避重罪的法律藉口，「非法經營罪」這一立法表明刑法學理對於現有社會政治條件下，司法據此擴張性適用，從而出入人罪的高度可能性之了無防範，也對立法首應捍衛公民權利之深切法意缺乏應有法律理性。畢竟，較諸強勢國家與全能政府，國民永遠處於弱勢。因而，法律首應捍衛國民權益與公民自由，而對公權之無端坐大和極限濫用，必須永懷怵惕。至少，必須設置有望達致平衡的法律機制。否則，法網恢恢，反倒人人自危矣！

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].

[Note:

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.

[Note:

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].

事實上，刑法學雖無複雜學理，更談不上什麼高深思想，但因事關生死，總是以生命、自由與財產之有無多寡為制裁的結果導向，因而，其法律推理和法律修辭，更須嚴謹，也更要符合人權保障之大經大法。不幸的是，此間刑法學家，其心智與心志，多數乃辦事員也，甚至於心心念念的還是「槍桿子刀把子」那一套陳腐酷烈的專政教條。其情其形，恰如《天鵝絨監獄》所描繪的「政治藝術家」，作為社會主義新人，他們「安然地將自己的巫師袍換成了社會工程師的白大褂」，因而，「他們代表國家發怒，而不是向國家發怒」，一如那些科學家們，早就懂得享受組織帶來的特權樂趣、安全感及影響力，而了無窮索自然的好奇與激情。其結果，「這些藝術家們被教化得沒有能力創作任何不能發表的東西」。獻上忠誠，出賣專業，助紂為虐，獲允連篇累牘製造文字垃圾所能收穫的，不過是出奇的平庸。所謂「非法經營罪」這樣的法條，便是他們的平庸對於社會的報應，而恰成製造其平庸的社會政治條件對於這個社會全體成員之無情報復。至於極少數者，鐵心白首，深刻周納，喪盡天良，不過是維辛斯基式的幫兇，更不論矣！

***

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].

[Note:

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.

轉進一層。一位著名獸醫，大紅大紫，最近在佩戴黃金狗鍊時感言，「生逢盛世，不負盛世」。好的，即依此說，則既稱盛世，依照吾邦文教傳統，就當輕刑薄賦，寬政慎罰。尤當大災之年，更要展示善意，安定人心。可以經濟手段對付，就絕不啟動治安。能用行政處罰解決，就千萬不要動用刑法。此為刑罰經濟原則，表達的是刑法謙抑主義，而一本於人道立場，恰恰是一種優良的國家理性，而為所謂盛世自當標榜者，何故反其道而行之？！以治安對付政治，藉惡法阻擋民主要求，進而不惜動用刑法，以行箝口之實，歷史早已證明，其於毀滅法制之际，令法治蕩然，既敗壞政治，而終究難擋民主政治大潮洶湧。

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?

吾國吾民，顛沛久矣，磨難多矣。三十年裡五十多場「運動」，製造了無數冤假錯案，數千萬同胞死於非命。晚近得於缝隙间攀腾更好生活，可以稍微安寧于生計，終於能夠合法辛勞養家餬口，部分國民有心有力旅遊玩樂，甚至於有幸追求藝術與科學，進行形上探索。凡此變化，也就是最近一、二十年的事，全賴這寬鬆二字，其實，也就是與民生路、與己生路的意思。不意極權政治四面出擊，全面內戰，旨在維續黨國專制，而置億萬國民與華夏文明的根本福祉於不顧，真不知心腸何在？！

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!

究其實，侠女羈狱，殺一儆百，實為典型的因言獲罪，舉國上下，路人皆知。其意在藉經濟而窒政治，以刑罰求鉗口，令萬民順服再順服。可惜一來因言獲罪，昭然天下，說白了，不就是因為耿某為許某鳴不平而遭殃嗎！二來拿一介無依無靠平民女子開刀，大動干戈，引發廣泛同情，遭致國內國際普遍輿論反彈。再者，其以身體力行公義著稱，而著意擒拿，幹犯眾怒矣！諸項因素疊加，其社會效果為負數，縱便站在黨國立場，如此執法，名曰維穩，實則幫倒忙，也可謂愚不可及！

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.

瀟男夫婦遭此定點打擊，不幸入此「口袋罪」中，根據國朝法律無罪推定原則，在終審定罪之前，其得被視為無罪，不僅依法享有辯護的權利，吾人亦均享有憲法規定的言論自由，而捍衛其清白的公民權能。在此，章潤起居法學四十載，不幸而為法學家，其專業稟賦與知識資格，非任何官方機構所能剝奪，願以此文為瀟男辯護，而為正義暢行國中盡心，惟願正義如滔滔江河流暢大地，祈禱公道若燦爛陽光普照人間。

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?!

著作等身的刑法學家們，面對冤獄，罪刑事大，事關天理人情，而首先是罹難者的身家性命，不知在下以上陳述，諸君以為然否，而喟然同慨乎？！

 

Xu Zhangrun
許章潤

First Day of the Eighth Month of the Gengzi Lunar Year
17 September 2020 CE

庚子八月初一
耶誕二零二零年九月十七日

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