Last December, more than a year after his trial, Jiang Qisheng was finally informed of his sentence, four years in prison for issuing an open letter suggesting peaceful ways for people to commemorate the 10th anniversary of the 1989 June Fourth massacre. He is currently being held at the Beijing No. 1 Detention Center.
Jiang, 52, is originally from Changshou City in Jiangsu Province. A leader in the 1989 democracy movement, he spent 18 months in detention following the crackdown. He was then expelled from the university where he had been studying for a PhD. Since then he has thrown himself into human rights activism.
Jiang worked closely with Ding Zilin and others to document the cases of people killed and injured in the June Fourth Massacre. He contributed to a number of human rights-related petitions, and wrote extensively about rights issues. In April 1999, he drafted an open letter to the Chinese people, suggesting that they light candles to silently commemorate those killed on June Fourth. This letter, which was posted in certain areas in Beijing, proposed that people turn out the lights in their homes for one hour on June 3 and June 4 to show respect for the June Fourth victims, remember the freedom, dignity and heroism of the 1989 movement and silently denounce the atrocities that occurred on Tiananmen Square.
Because of this letter Jiang Qisheng was detained on May 18, 1999. His case, like those of many dissidents, has been a catalog of procedural violations, including clear violations of the Criminal Procedure Law (CPL). For example, Jiang was detained without a warrant, his family was given no information about his status or whereabouts and he was denied access to a lawyer until just days before his trial.
The trial opened on November 1, 1999, at the Beijing No. 1 Intermediate Peoples Court. Below are translations of the statements Jiang and his lawyer, Mo Shaoping, presented at the hearing. The court was called into recess without a verdict being announced. Although courts are required by law to issue verdicts within a month, it did not announce Jiangs conviction and four-year sentence until December 27, 2000, and there was no explanation for the delay. One result, though, was that he was unable to receive any family visits during the 19 months between his detention and sentencing. Jiang appealed against his conviction on January 1 this year, but his appeal was thrown out on March 16 without a hearing.
(See China Rights Forum Fall 1999 and Winter 1999-2000 for more information and documents on Jiangs case.)
At this time, I announce that I am pleading not guilty.
Under what circumstances may a citizen who enjoys the right of freedom of speech be liable for an offense when publishing his political ideas? The international understanding is: only when he is inciting the overthrow of an elected government by force, and when threats of such actions are imminent. Other than this, speech is no crime. With this principle in mind, this prosecution becomes an absurdity. It is easy to see from what Li Xiaoping [author of an article Jiang was charged with distributing] and I have written that nowhere did we mention overthrowing the government by force. That being the case, what crime have I committed? I have my own views on the June Fourth Incident and Li Xiaoping has his on the Four Basic Principles [contained in the Constitution and mandating Chinese Communist Party rule] but do we have the right to express them, to write about them and to promulgate these views? Or is it true that we can only say yes and never say no to any official views? Officials initially determined that the 1976 Tiananmen Movement was a counterrevolutionary incident, while many ordinary citizens called it a revolutionary movement. And what was the result? Evidently, the official view was completely wrong. As for the 1989 June Fourth Incident, the authorities labeled it quelling the counterrevolutionary turmoil, but I consider it an extremely tragic event that shocked the world and embodied injustice, falsehood and wrongfulness. This is merely a clear expression of the truth and of my opinions, what crime can there be in that? Li Xiaoping only peacefully expresses his political views by advocating the replacement of the Four Principles of Privilege by Four principles of legal rights through the amendment of the Constitution. What crime did he commit in that? In my opinion, this kind of civic action of daring to exercise rights and refusing to lie is not only not a crime, but also should be widely promoted and encouraged. The future of China lies in great part on nurturing and uplifting this kind of civic quality. By contrast, those who attempt to fight against modern civilization, insist on punishing ideas and prosecute people with dissenting opinions are the real criminals among the Chinese people. On June 26 of this year, I wrote down the words crime of words on the arrest warrant to remind the authorities of this. Today I still want to remind the authorities againdo not learn from [Qing] Emperor Yongzheng, and do not imprison people merely for words. Looking around the world, how many countries are left which still practice the suppression of speech and making words a crime?
Subsection 2 of Article 105 of the Criminal Law is in contradiction with the understanding of international society in that it puts limitations on freedom of speech and on citizens right to express political views. According to that subsection, a citizen may commit an offense even by inciting the overthrow of the government by peaceful means. The authorities are charging me according to the stipulations of this subsection. But what did I write? I only asked people to light candles at home on the evening of June 3 and 4 to mourn those heroic souls. This is ten thousand miles away from incitement to subvert state power. What did Li Xiaoping incite people to do? He only asked people to force the ruling group to compromise. Please note that even high school students will understand that compromise means the ruling group is still ruling. It is different from stepping down or being overthrown. How can the differences between these two be only eight meters or ten meters apart? How can the prosecution be so negligent of the facts and ignorant of common sense and charge me under Article 105? I can only consider that they are being ordered to do so, to call the deer a horse. Isnt this kind of enforced lying just a bit too much?
Frankly speaking, I do not even have the intention to subvert the Street Office [the lowest level of government]. My thoughts are not focused in that direction. For thousands of years, Chinese people have been too accustomed to two approaches to the political domain - one is to be as docile as sheep, and the other is to rise up to overthrow the ruling group. Trying to overthrow the government by force has been done innumerable times. Just in the 20th century, this has happened twice, in 1911 and in 1949. I think the Chinese people do not want to continue this vicious cycle of either being docile or rising up and using force. Of course, if the common people tried to overthrow the government by peaceful means, this would be a new thing for China. But I am very worried that people will abandon their non-violent methods and take up the more familiar violent means. Therefore, my political views, at least up to this moment, exclude the possibility of subverting state power. Without such an intention, why would I make such arguments? All my writings can prove that what I have consistently advocated is to subvert the Chinese peoples vicious cycle of being docile and then rising up. Simply by writing and talking, do I commit such a crime against heaven that I must be put to death?
In summary, I state that the charges against me in the indictment are untenable, and I am indisputably innocent.
[The defendants statement was unreasonably interrupted many times by the presiding judge]
November 1, 1999, in the Beijing No. 1 Intermediate Court
Appointed by Jiang Qisheng and sent by the Beijing Mo Shaoping Law Firm, we appear here to defend Jiang Qisheng against the charge of suspected incitement to subvert state power. In accordance with CPL Article 35, we will address the facts of the case and the law, presenting materials and opinions that prove that the defendant is either innocent, that his crime is minor, or he is guilty of a lesser crime, or he should not bear legal responsibility, in order to protect the legal rights and interests of the defendant. After being appointed as defense counsel, we read the case files carefully, apprised ourselves fully of the circumstances of this case and met with Jiang Qisheng, and thus we present the following defense arguments:
It is our opinion that the charge that the defendant Jiang Qisheng committed the crime of incitement to subvert state power as stipulated in the indictment Document No. 141 (1999) issued by Branch No. 1 of the Beijing Municipal Procuratorate is unfounded.
In the indictment, the first criminal fact charged against Jiang Qisheng is: From the period of 1996 to the spring of 1999, defendant Jiang Qisheng distributed an essay written under the pen name Li Xiaoping entitled, Thoughts on how to peacefully implement fundamental change in Chinas social system (hereinafter Thoughts). Jiang distributed the essay to Liu Qingmei (already sentenced), Meng Yuanxin (prosecuted separately), Fu Guoyong and others at Jiangs residence in Building 19, 13th floor, No. 2, Capital Normal University, Haidian District, Beijing, and other locations. The essay, which contains the malicious slander that The Four Basic Principles are the Four Principles of Autocracy, based in authoritarian beliefs, defiles the Four Basic Principles enshrined in Chinas constitution. The essay incited readers continuously to push those in power to compromise, ultimately causing them to abandon explicitly the Four Principles of Autocracy. From then on, Chinas social system can achieve fundamental change.
This charge is unfounded for the following reasons:
First, Jiang Qisheng should not be held responsible for the contents of Thoughts.
Among all the materials produced by the Public Prosecutor, not one piece of evidence establishes that Jiang Qisheng is the author of Thoughts, or that Li Xiaoping is his pen name. Therefore, even if Thoughts contains content that maliciously slanders and defiles the Four Basic Principles as charged in the indictment, Jiang Qisheng still may not be held responsible because he is not the author of this essay. It is recognized in this country as well as internationally that only the author is responsible for an articles contents.
Second, the act of passing Thoughts to other people to read does not in itself amount to incitement to subvert state power.
The inciting acts in the crime of incitement to subvert state power are generally manifested in the following ways: fabricating rumors, that is fabricating something that does not exist and communicating it to other people with a view to incite discontent; and slander, that is creating and circulating falsified information aimed at inciting peoples hatred. Jiang Qishengs act of passing Thoughts to others to read involved neither fabricating rumors nor slander. Furthermore, there is no evidence indicating that Jiang Qisheng expressed agreement with the political views and ideas expressed in Thoughts or that he urged others to accept these ideas. There is no evidence indicating that Jiang Qisheng encouraged those who read the article to act according to its viewpoint. Therefore, Jiang Qishengs act of passing Thoughts to other people to read does not meet the objective requirements of the crime of incitement to subvert state power.
Third, the defendants act of passing Thoughts to other people to read does not satisfy the requirement that the act in question be committed openly.
An important and objective element of the crime of incitement to subvert state power is that the criminal behavior must be committed in an open manner, that is, the person committing the crime must distribute the materials containing content that incites subversion of state power in a public venue within a relatively short time-span to an indeterminate but substantial number of the people there. In other words, to constitute the crime of incitement to subvert state power by fabricating rumors, slander, or other means, the act itself must be aimed at the public. During the past three years, Jiang Qisheng only passed the Thoughts article to three of his acquaintances (not the public) in his domicile (not a public place). This act does not qualify as being committed openly. Therefore, it does not contain the elements necessary for the crime of incitement to subvert state power.
Indeed, if passing books, materials and articles to others to read constitutes an offense, a librarian lending out books, materials, or even internal information published by the Xinhua News Agency could be subject to prosecution!
The second set of criminal facts cited in the indictment is: In Beijing in April 1999, defendant Jiang Qisheng concocted the leaflet entitled Light a Myriad of Candles in Collective Commemoration of the Brave Spirits of June Fourth (hereinafter Candles). The leaflet slanderously referred to the June Fourth Incident as an extremely tragic event that shocked the world and embodied injustice, falsehood and wrongfulness. It incited people to denounce the atrocity that crushed human rights and to condemn the abrogation of justice in the name of stability. In the same year, on April 14, 1999, Jiang Qisheng rounded up Meng Yuanxin and others to respectively post this leaflet in Haidian District, Baishiqiao, Zhongguancun and other locations.
As to this charge, the counsel for the defense also considers that it is unfounded.
Firstly, there is insufficient evidence to indicate that the Candles article was concocted by Jiang Qisheng. Article 46 of the CPL stipulates: When not supported by other evidence, a defendant cannot be convicted and subject to criminal penalties solely based on his own confession. Of all the evidence produced by the prosecution, not one piece of evidenceother than defendant Jiang Qishengs own confessionproved that the Candles article was authored by the defendant. (Here we are assuming that the term concocted means authored.) Therefore, the charge that Jiang Qisheng concocted the Candles article cannot be legally established.
Secondly, the Candles article does not contain any content that incites people to subvert state power. Therefore Jiang Qishengs act in posting this article does not constitute the offense of incitement to subvert state power. The reasons for this are as follows:
- The intention of the Candles articles was to revive peoples memory, urge people to commemorate June Fourth and to remind city residents not to forget these events (see Jiang Qishengs statement, and the testimony of Meng Yuanxin and others). This makes it clear that Jiang Qisheng did not have the subjective intention of inciting subversion of state power.
- The actions proposed in Candleslight candles, make phone calls, send beeper messages, shun recreation and the likecould not possibly result in subverting state power, in other words, such acts do not constitute any clear and present danger to state power. To put it another way, state power will not be overthrown simply because some people light candles on June 3rd and 4th. Furthermore, the Candles article does not contain any words or phrases which openly advocate the overthrow or subversion of state power. Therefore, Jiang Qishengs act of posting the Candles article does not constitute the crime of inciting the subversion of state power.
- The indictments charge that Jiang Qisheng used the Candles article to incite people to denounce the atrocity that crushed human rights and to condemn the abrogation of justice in the name of stability, takes a short phrase out of context and thereby distorts it. The original meaning of Candles is: if people respond to the appeal and on the nights of June 3 and 4, turn out the lights at home for one hour and light a candle to show our respect and solidarity, This will constitute a silent denunciation of the atrocity that crushed human rights, a condemnation of the abrogation of justice in the name of stability. This passage makes clear that the form of condemnation advocated in Candles is only the silent denunciation of turning off the lights and lighting candles, and not encouraging people to rise up and overthrow state power. It is obvious that such silent, moderate and non-violent forms of condemnation are only a critique or criticism of certain government actions. The question of whether or not these criticisms are correct should not be a matter falling within the scope of adjudication of the law, especially not of the criminal law. How could this then be a issue involving incitement to subvert state power?
- There is no evidence to indicate that people would form the idea of subverting state power as a result of reading the Candles article. According Xi Jiabin, who reported the posting of Candles, the overall content of Candles is to urge people to light candles and, through other ways on June 3 and 4 this year, to commemorate those who died on June Fourth. Another person who reported this leaflet, Yue Guozhong, states of the article, In sum, the content is to urge people on June 3 and 4 this year to light candles and use other ways to commemorate the deaths of June Fourth. These reports from the public are basically correct. Furthermore, there appears to be no personal relationship between those submitting the reports and Jiang Qisheng. According to their statements, no part of the Candles article may be said to incite the subversion of state power. No one would form the idea of subverting state power simply by reading this article.
In conclusion, Jiang Qishengs act of posting and distributing the Candles article to other people to read does not constitute a violation of the Criminal Law of our country under the crime of incitement to subvert state power. Therefore, this charge against Jiang Qisheng by Branch No. 1 of the Beijing Municipal Procuratorate is unfounded.
Lastly, the counsel for the defense solemnly points out that the public security organs have seriously abused the defendants legal rights and interests in their handling of this case.
On the day Jiang Qisheng was detained by the public security organs, he wrote a Power of Attorney entrusting his wife, Zhang Hong, to appoint legal counsel on his behalf to provide legal assistance. However, the public security organs illegally confiscated this Power of Attorney and, to date, never gave it to Zhang Hong. According to CPL Article 96, a criminal suspect may, after being first interrogated by an investigating organ or from the day coercive measures are taken against him, retain a lawyer to provide him legal advice, and file complaints or lawsuits on his behalf. In confiscating Jiang Qishengs Power of Attorney, the public security organs illegally deprived him of his legal right to obtain counsel and assistance from a lawyer.
According to CPL Article 64 and Article 71, except in circumstances where the investigation would be obstructed or where it is impossible to render notification, when a person is detained or arrested, the public security organs should notify the family or the work unit of the criminal suspect within 24 hours citing the reasons for the detention or arrest and the location where the person is held. It is impossible to render notification when the person arrested does not have a family or a work unit, or if he does not reveal his true name and address. However, neither situation applies in the case of Jiang Qisheng who has family and did reveal his true identity and address to the public security organs. An investigation may be obstructed when revealing the identity of the suspect would lead to the flight of co-conspirators, or the destruction and/or fabrication of evidence. It may also include situations where other members of the gang to which the suspect belongs are still under investigation and compulsory measures have not been taken against them. Jiang Qisheng was detained on May 19, 1999. Alleged co-conspirators, such as Liu Qingmei and Meng Yuanxin, were either detained that day or earlier. Therefore, this is not a situation where notification would have obstructed the investigation. Despite the fact that neither the obstruction of the investigation nor the impossibility of notification exists in this case, the public security bureau failed to inform Jiang Qishengs family within the time period required by law.
The Constitution of the Peoples Republic of China stipulates that all government institutions, units and personnel must function within the parameters of the Constitution and the law. Abiding by the laws of the state is not only the obligation of ordinary citizens; it is also the obligation of the countrys law implementation agencies. In a land where Rule by Law is an established principle, the law implementation agencies should strictly observe the law when discharging their duties. When law implementation agencies act to restrict any rights of citizens or deprive them of those rights, they must take special precautions to ensure that they have sufficient legal grounds for doing so. In depriving Jiang Qisheng of his right to retain a lawyer and obtain legal assistance and failing to inform his family within the time required by law, the public security organs committed serious violations of the Constitution and the law of our country.
Finally, we urge this court to take facts as the basis and law as the guiding principles and return a not guilty verdict on Jiang Qisheng in accordance with the law.
Beijing Mo Shaoping Law Firm
Defense Counsel: Mo Shaoping
November 1, 1999
Presiding judge, prosecutors, defense counsel, my wife:
I. First of all, as a defendant, I would like to make two complaints about unlawful acts committed by the Beijing Municipal Public Security Bureau during the litigation of this case. It violated the stipulation of CPL Article 96, thus depriving me of the right to retain counsel and seek legal assistance during the investigation period. Secondly, it also violated the stipulations of CPL Article 64 and Article 71 by refusing to inform my wife about my criminal detention and arrest, thus depriving her of the right to know and to appoint counsel on my behalf.
II. Secondly, as a citizen, I must point out that it is perfectly proper behavior for Li Xiaoping to say no to the official Four Basic Principles and for myself to say no to the June Fourth massacre. This constitutes proper exercise of freedom of speech, and should not be penalized. It is barbaric and backward behavior to ban expression and prosecute dissenters by suppressing free speech, and Article 105 and related articles of the Criminal Law are typical symbols and tools of that suppression.
III. Thirdly, as a thinker, I would like to say that in order to avoid the lowly and repetitive task of changing dynasties, Li Xiaoping only urged people to force the ruler to compromise and not step down. I only asked people to light candles to mourn the heroic souls signifying a silent protest against the June Fourth atrocities. Therefore, the commentaries made by Li Xiaoping and myself did not infringe on Article 105 no matter how unreasonable this law might be. There is a large gap between the two. Using that article to arrest me and charge me with committing the crime of incitement to subvert state power is just a sad repetition of the 2,300 year old tale of pointing at a deer and calling it a horse.
IV. As a husband, I hope my wife can understand my aspirations, and take very good care of herself in facing the unfair jailing imposed on me coolly and calmly. As a son, I pray that my 82-year old mother can still believe as she always has that her son is a good person, and will eventually come out of jail and visit relations in our hometown.
V. As a Chinese who honors loyal friendship, I am sorry to cause trouble for many of my friends due to the confiscation of my diary by the authorities. All I can say to my friends is, throughout my detention, I have upheld the principles that a man should have and the spirit of a dissident, and I have not betrayed anyone.
VI. As a dissident, I have high respect for my defense counsel Mo Shaoping. With his conscience, courage and professionalism, he presented a flawless defense on my behalf, this is especially precious as it is still not very common in China these days.
VII. As a Chinese man who at fifty, understands his fate, I fully comprehend the situation faced by the judges and the prosecutors in this political trial. I never expected to be given a fair trial. My only requests to the court are: first, to reflect truly the opinions expressed by the defense statements made by myself and my counsel Mo Shaoping in the verdict; second, to return the computer and accessories unrelated to this case, but still held by the Public Security Bureau, to my son. My request to Branch No. 1 of the Beijing Municipal Procuratorate is to accept and handle the complaint I filed against the Beijing Municipal Public Security Bureau [regarding the above-mentioned violations of the CPL] and give me a formal reply.
VIII. As the litigant in this case, I would like to end this final statement by saying a few words from the bottom of my heart. Today is November 1, 1999, and in two short months time, human beings will enter the 21st century. Today the universal principles of human rights have been widely accepted. Today, Chinas Taiwan and Hong Kong are gradually moving towards democracy. But also today in Beijing at the end of the century a trial of ideas is underway. This is a shame for China, a shame for human beings. But I firmly believe that the day when we can end this kind of history and wash away this kind of shame is not far away. [At this point, Zhang Hong applauded enthusiastically and was immediately ejected from the courtroom by court guards on the orders of the the presiding judge.] I have no hatred nor regret for what I have done. I can only move one step at a time. Who would not pursue, long for, hope for and envision a society where people defy lies and speak the truth, a society where people lead a real life and act according to conscience, a society where some of the people can be free first and a society where human rights and dignity are above all as I have done?
Lastly, I strongly protest against the rude ejection of my wife from this court! [The final statement was interrupted by the presiding judge many times.]
November 1, 1999, in the Beijing No. 1 Intermediate Court