April 9, 2010
Translation by HRIC, based on a translation by Wen Huang.
[Chinese / 中文]
DECEMBER 23, 2009
The Indictment (Beijing Procuratorate Branch No. 1 Criminal Indictment  No. 247) lists six of my articles and Charter 08—and then quotes some 330 characters from them—as the grounds for charging me with violating the provisions of Article 105, paragraph 2 of the Criminal Law of the People’s Republic of China, and committing the crime of “inciting subversion of state power,” for which there should be an investigation into criminal responsibility.
I have no objection to the facts listed in the Indictment, except for the inaccuracy of the facts alleged by the statement, “After collecting over 300 signatures . . . .” I did write those six articles. I [also] participated in [the drafting of] Charter 08. But I only collected some 70 signatures, not more than 300. The rest of the signatures were not collected by me. As for using this as the grounds for charging me with a crime, I cannot accept it. During the more than a year since I lost my freedom, as I faced questioning by pretrial police interrogators, prosecutors, and judges, I have always maintained that I am not guilty. I will now enter a not-guilty defense on behalf of myself, using multiple sources, such as the relevant provisions of the Chinese Constitution, the United Nations’ international conventions on human rights, my positions regarding political reform, historical trends, etc.
1. One of the important results of the Reform and Opening Up policy has been the increasing awakening of our countrymen’s consciousness of human rights and the recurrent civil rights defense, driving progress in the Chinese government’s views on human rights. In 2004, the National People’s Congress amended the Constitution to write into it that “the state respects and guarantees human rights,” thus making the guarantee of human rights a constitutional principle of running the country according to law. The human rights that the government must respect and guarantee are the various rights of citizens stipulated in Article 35 of the Constitution, and freedom of speech is one of those fundamental human rights. In expressing differing political views I am exercising the right to free speech conferred to a Chinese citizen by the Constitution. Not only can the government not restrict or arbitrarily deprive me of this right; rather, the state must respect it and guarantee it by law. Therefore, the charges against me in the Indictment are infringing on my basic human rights as a Chinese citizen and violating China’s fundamental state law. This is a typical example of criminalizing speech, a continuation of the ancient practice of literary inquisition in contemporary China. The practice should be morally condemned and investigated as a violation of the Constitution. Provisions in Article 105, paragraph 2 of the Criminal Law may also violate the Constitution and should be submitted to the National People’s Congress for a review of their constitutionality.
2. Based on a few passages it quotes from my articles, the Indictment charges me with “inciting subversion of state power and the overthrow of the socialist system . . . by means of rumor-mongering, slander, etc.,” which is a trumped-up charge. “Rumor-mongering” means fabricating or inventing false information to harm others. “Slander” means besmirching other people’s reputation and character by creating something out of nothing. Both involve the veracity of facts and other people’s reputation and interest. But my opinion pieces are all critical commentaries, expressions of my thinking and viewpoints. They are value judgments, not judgments of facts. They have not caused harm to anybody. Therefore, my opinion pieces have absolutely nothing to do with rumor-mongering and slander. In other words, criticism is not rumor-mongering, nor is opposition slander.
3. Based on a few passages from Charter 08, the Indictment charges me with slandering the ruling party and “attempting to incite subversion of the current regime.” These charges interpret my statements out of context, completely ignoring the views articulated in Charter 08 as a whole, and the consistent views articulated in all of my articles.
First, the “human rights disasters” mentioned in Charter 08 are all facts that have occurred in contemporary China: the Anti-Rightist Campaign wrongly labeled more than 500,000 people as rightists; the Great Leap Forward caused the unnatural deaths of as many as ten million people; the Cultural Revolution created a national catastrophe. June Fourth was an act of murder during which many people died, and many were thrown into jail. These facts are all universally acknowledged “human rights disasters” that indeed brought on crises in China’s development, “held back the development of the Chinese people, and hindered the progress of human civilization. . . .” As for abolishing the one-party monopoly of power, it is merely a request that the ruling party undertake reforms that would return power to the people and eventually establish a free country where the government is “of the people, by the people, and for the people.”
Second, the long-term objective of the values declared and political reform proposals raised in Charter 08 is the establishment of a free and democratic federal republic. It contains 19 reform measures and advocates a gradual and peaceful approach to reforms. In view of the various malpractices of the current lame-duck reform, it requests that the ruling party transform the lame foot into a second leg, namely, that it advance political and economic reforms together in harmony. That is, this should be a reform that comes from the civic angle that pushes the authorities to return power to the people as soon as possible, one that uses bottom-up civic pressure to urge the government to carry out top-down political transformation, thereby creating an interactive, beneficial cooperation between government officials and the people, so as to realize, as soon as possible, our countrymen’s century-old dream of a constitutional government.
Third, in the past two decades, from 1989 to 2009, I have always expressed the view that China’s political reforms should be gradual, peaceful, orderly, and controlled. I have also consistently opposed quick one-leap radical reforms, and even more so violent revolution. These positions on gradual-style reform are explicitly formulated in my essay “Changing the Regime by Changing Society”: Create bottom-up pressure to push forward top-down reform by government through efforts to awaken civil rights consciousness, expand civil rights defense, raise civic independence, and develop civil society. In fact, the implementation of reforms in China during the past three decades has proven that each time an innovative institutional reform measure was introduced and implemented, its most fundamental driving force has always been a spontaneous reform originated by the civic sector. As the recognition and influence of a civic reform gradually grow, they force the government to accept the innovative civic endeavor and turn it into top-down reform policy decisions.
In short, the key words in my approach to China’s political reforms are: gradual, peaceful, orderly, and controlled, with the interaction between bottom-up and top-down [efforts], because this approach is the least costly and most effective. I know the basic common sense of political transformation: that an orderly and controlled social transformation is bound to be better than a disorderly and uncontrollable transformation. Even social order under a bad government is better than total chaos without a government. Therefore, my opposition to dictatorship and monopoly on power as the governing method is not “incitement to subvert the current regime.” In other words, opposition does not equal subversion.
4. China has an ancient admonition: “One loses by pride and gains by modesty.” Among Western proverbs, there is a similar warning: “Pride goes before a fall.” I know my own limitations, and am therefore aware that my public statements cannot be perfect, or entirely correct. In my commentaries on current affairs in particular, it is hard to avoid sloppy arguments, emotional unburdening, misrepresentations, and sweeping conclusions. However, these statements with all their limitations have nothing whatsoever to do with criminal offense and cannot be used as a basis for criminal punishment, as the right to freedom of speech includes not only the right to publish the correct point of view, but also the right to publish an incorrect opinion. Correct opinions and majority views need to be protected; incorrect opinions and minority views need the same rights protection. As the saying goes: I may disapprove of or oppose your point of view, but I resolutely defend your right to publicly express your different viewpoint, even if the viewpoint you are expressing is wrong; only this is the essential meaning of the freedom of speech. There have also been classical summaries regarding this approach in China’s ancient tradition. I call these summaries a 24-character motto: “Say all you know and say it without reserve. Blame not the speaker but heed what you hear. Correct the mistakes you made and guard against those you did not.” It is precisely because this 24-character motto expresses the essential meaning of the freedom of speech that every generation of our countrymen has been familiar with it and passed it down to the present. I believe that the sentence “Blame not the speaker but heed what you hear” in the motto can absolutely be used as a maxim by our contemporary countrymen as they deal with critical opinion, and should, even more, be a warning for the authorities as they deal with differing political views.
5. I’m not guilty, because the charges against me violate the human rights standards universally accepted by the international community. As early as 1948, China, being a permanent member state of the United Nations Security Council, participated in drafting the Universal Declaration of Human Rights. Fifty years later, in [1997 and] 1998, the Chinese government made a solemn commitment to the international community in signing the two international human rights covenants drawn up by the United Nations. One of them, the International Covenant on Civil and Political Rights, lists freedom of expression as the most fundamental universal human right, and requires that various governments respect and guarantee it. As a permanent member state of the UN Security Council and a member of the UN Human Rights Council, China has an obligation to abide by the human rights conventions drawn up by the UN and the responsibility to honor its own commitments, and should implement the human rights guarantees promulgated by the UN in an exemplary fashion. Only in this way can the Chinese government guarantee the human rights of its own citizens in earnest and make its own contributions to the cause of advancing international human rights, thus demonstrating the civilized demeanor of a great nation. Regrettably, the Chinese government has neither fully fulfilled its obligations nor honored its commitments; it has not translated its pledges on paper into real action. China has a Constitution, but no constitutional government; it has commitments, but no action to make good on them. This is still the standard behavior when the Chinese government responds to criticism from the international community. The present charges against me are but the latest example. Obviously, such criminalization of speech runs counter to China’s status as a permanent member state of the UN Security Council and a member of the UN Human Rights Council and is detrimental to China’s political image and national interests, making it impossible for China to win political trust from the civilized world.
6. Whether in China or elsewhere in the world, in antiquity or in the modern and contemporary era, literary inquisition through the criminalization of speech is an act against humanity and human rights. It runs counter to the prevailing trends and the will of the people in our time. If we look back on Chinese history, even in the imperial era of family-based rule, from the Qin [221–206 BCE] to the Qing [1644–1911 CE] dynasties, the prevalence of literary inquisition had always been a stain on those in power in a given regime and a disgrace for the Chinese nation. The First Emperor of the Qin dynasty achieved the unification of China, but the tyranny of his “burning books and burying Confucius scholars alive” lived on in infamy. Emperor Wu of the Han dynasty was a man of great talent and vision, but his decision to have the Grand Historian Sima Qian castrated brought him blame and shame. The Qing dynasty experienced “the golden age of great prosperity from Kangxi to Qianlong emperors,” but the frequent literary inquisitions during their reigns left them with a bad name. Conversely, Emperor Wen of the Han dynasty gained a reputation as an enlightened and benevolent ruler for abolishing the practice of literary inquisition for “crimes of slander” more than two thousand years ago. His reign and that of his son, Emperor Jing (known as the “rule of Wen and Jing,” have been revered by successive generations.
Turning to modern China, the fundamental reason that the Communist Party of China (CPC) could grow from weak to strong, and eventually defeat the Nationalist Party, was the moral strength in its “struggle against dictatorship and fight for freedom.” Prior to 1949, the CPC’s Xinhua Daily and Liberation Daily constantly published articles attacking the Chiang Kai-shek regime for suppressing the freedom of speech and calling attention to visionary individuals who had been charged with speech crimes. Mao Zedong and other CPC leaders also repeatedly made references to the freedom of speech and fundamental human rights. But after 1949, from the Anti-Rightist Campaign to the Cultural Revolution, from Lin Zhao’s execution by a firing squad1 to Zhang Zhixin’s throat slashing,2 the freedom of speech disappeared in the Mao era and the whole country sank into deadly silence in an atmosphere of extreme political oppression. Since the reforms, the ruling party has restored order out of chaos and substantially increased its tolerance of different political views. The space for expression of public opinion in our society continues to expand and the incidence of literary inquisition has decreased substantially, but the tradition of the criminalization of speech is far from being completely extinct. From the April Fifth Movement  to the June Fourth Movement , from the Democracy Wall  to Charter 08, cases of speech crimes have occurred periodically. My criminal arrest this time is but the latest example of literary inquisition.
Today, in the 21st century, freedom of speech has become commonly understood by the majority of our countrymen, and literary inquisition has been universally condemned. In terms of objective effect, it is more dangerous to stop people’s mouths than to dam a river. The tall prison walls cannot hold back free expression. A regime cannot establish its legitimacy by suppressing different political views, nor can it maintain lasting peace and stability through literary inquisition. For the problems that come from the barrel of a pen can only be resolved by the barrel of a pen; when the barrel of a gun is used to resolve them, this can only create a human rights disaster. Only through institutional eradication of literary inquisition can the constitutionally-stipulated right to freedom of speech be realized by every citizen. Only when the citizens’ right to freedom of speech receives actual institutional guarantees can literary inquisition be wiped out from the vast land of China.
Criminalizing speech does not conform to the human rights principles established by the Chinese Constitution, violates international human rights conventions promulgated by the United Nations, and runs contrary to universal moral principles and historical trends. I hope that the not guilty defense I have made will be accepted by the court, so that the ruling of this case becomes significant for setting a precedent in the history of rule of law in China, a ruling that can withstand examination against the human rights provisions of the Chinese Constitution and international human rights conventions, as well as withstand the moral scrutiny and test of history.
Thank you all!
1. Lin Zhao (林昭, 1932–1968) was a writer who, in 1962, was sentenced to 20 years in prison after criticizing the government during the Hundred Flowers Campaign. In prison, Lin famously continued to write critical commentary in her own blood after her writing instruments were confiscated. She was executed in 1968. ^
2. Zhang Zhixin (张志新, 1930–1975) was a dissident member of the Communist Party of China who criticized Mao Zedong and the ultra-left during the Cultural Revolution. She was imprisoned in 1969, and was tortured and gang-raped. Prison guards slit her throat prior to her execution to prevent her from denouncing the government before her death.
Human Rights in China