Yan Xin: Opposition and the Legitimacy of State Power

Writer and activist Lü Gengsong (吕耿松), a longtime advocate for the banned , was detained in July of 2014. He was formally arrested a month later for “ of state power,” which carries a maximum sentence of life imprisonment. A Hangzhou court found him guilty in September of 2015 for publishing essays critical of the CCP and in support of democracy on overseas websites, sentencing him to 11 years in prison last June. Lü appealed the verdict, which was upheld in a second hearing last month. His lawyer Yan Xin (燕薪) was disallowed from attending the appeal hearing, but did submit a letter to the appellate court. In the letter, Yan draws a strong case for Lü based on constitutional guarantees of the freedom of expression, and argues that China’s lack of democratic elections means there was no politically legitimate “state power” for his client to subvert. CDT has translated the entire letter in full:

Opposition and The Legitimacy of Political Power–Statement of Defense for Lü Gengsong’s Appeal

Your Honor, Members of the Court,

As the defending counsel of Mr. Lü Gengsong, accused of subverting state power, I would like to lay out my overall position on the case. Let me first state that I believe, without a doubt, that Mr. Lü Gengsong is innocent. For citizens of a free nation, no matter what party they belong to, no matter what essays they publish, no matter what conferences they attend, no matter what friends they make, so long as they do not present clear and present danger, how can these actions constitute a crime? I further submit that if it turns out they do indeed constitute a crime, then only one conclusion remains: This nation isn’t free!

I. Preamble

Before issuing this statement of defense, I took the liberty of reviewing the relevant materials of the case file in their entirety, and would like to draw attention to the following:

1) Mr. Lü Gengsong’s statements from the various interviews conducted as part of the investigation: “[We] must follow the path of ‘democratic constitutional government,’” “I believe that the system currently in effect in China is ‘dictatorial rule,’ it’s a ‘one-party autocracy’ of the Chinese Communist Party (CCP), we should instead follow the ‘path’ towards Western-style ‘separation of powers’ and a ‘presidential system of government’” (see page 13 of File 3), “I believe my behavior is meant to change the current national system, the social system, the political system, and realize a ‘multi-party’ system,” (see page 14 of File 3), “I hope that it will be the same as in Taiwan, with many different parties competing for power, a political system that allows for freedom of assembly,” (see page 45 of File 3)

2) Mr. Lü Gengsong’s testimony from his initial hearing: “China has a constitution, but it isn’t governed by its constitution. Therefore, the China Democracy Party seeks not only a constitution, but also governance by the constitution. The CCP authorities accuse me of subverting state power, but what is state power? What we call ‘state power’ should arise from a general election, in accordance with the principle of governance by the constitution. If there is no truly unified state power in mainland China then, how can I be accused of subverting it? If the goal of the China Democracy Party is to establish a unified, modern state power, then how can that be a crime? What am I subverting? ‘Subvert’ is a neutral word, after all — it means to overturn or set aside old-fashioned and backward things. The overwhelming trend of the world today is toward democratic, constitutional governments” (see Appeal, File 38).

3) From the same testimony: “The political power of the CCP relies on political oppression and economic predation. A close examination of every level of society reveals that this political party has become irreparably degenerate, without a single uncorrupted office — instead, they spend their time going on scenic tours, a euphemism for visiting brothels. They are destroying the natural environment and the land on which the common people depend, and making up enemies to frame on false charges. Cries of discontent echo down every street and every lane, and the people struggle to meet their most basic needs. Shouldn’t an imperious, degenerate state power like this be replaced with a new democratic party? In summary, the current regime does not belong to the common people — it belongs to a minority of influential officials and privileged few who prey on the common people. A political power like this cannot but be subverted, pursuant to the will of the people.”

4) The following excerpt from Mr. Lü Gengsong’s “Criminal Appeal”: “The subject of this appeal would like to state for the record that no true, single state power exists in China today, only regional authorities: the democratic government of Taiwan, the dictatorship (or feudal autocracy) of the CCP in mainland China, and the special administrative regions of Hong Kong and Macau. The actions taken by the subject of this appeal have always been for the sake of establishing a unified and truly democratic, modern state power, governed by the constitution” (see page 135 of Appeal).

5) From the same document: “In a civilized era, to meet civilization with barbarism can only be the act of the strong preying on the weak, perpetuated by a group of violent thugs. How can such a group claim to be the sole legitimate organ of ‘state power’? […] To my knowledge, the sole goals of the China Democracy Party are: to promote democracy, human rights, and the establishment of a modern, democratic constitutional system. Its most important task is to establish a true state power in China. I also know what the China Democracy Party is not: it is not ‘an illegal organization’ with the goal of ‘subverting state power in China’ and ‘overthrowing socialism’” (see page 137, 138 of Appeal).

As the defending counsel, I believe that Mr. Lü Gengsong does not consider himself to be guilty of the crime of subverting state power because he completely rejects the legitimacy of the current state power. He believes “there is no single, unified state power in mainland China,” and asks “What authority does a group of violent thugs have to claim being the sole legitimate organ of ‘state power’?” He believes that all of his actions “have always been for the sake of establishing a unified and truly democratic, modern state power, governed by the constitution.” Based on this, as his counsel, I find that an intentional subversion of state power would have not only done nothing to help Mr. Lü Gengsong achieve his goals, but in fact run counter to the values that the defendant has professed to his statements.

II. Correcting the Initial Sentencing

1) Characteristics of the China Democracy Party

According to the initial verdict, “The Democracy Party of China is an illegal organization with the goal of subverting Chinese state power and overthrowing the socialist system.” In fact, this was copied verbatim from a document titled “The Ministry of Public Security Confirms ‘The Democracy Party of China’ a Hostile Organization.” The Ministry, however, based their conclusion on Article Five of the “Rules for the Implementation of the State Security Law of the People’s Republic of China,” which is contrary to the standard international principles for party government.

As long as an organization or party does not pose a threat to basic order of liberal democracy, in practice it will be recognized as lawful in the capital of the nation of which it operates, with its legal status being confirmed via the registration of a political party. In modern civilized societies, only a small minority of political parties are banned for violating the constitution: to give two examples, the Socialist Reich Party (SRP) and the Communist Party of Germany (KDP), were banned by the German Federal Constitutional Court in accordance with the Basic Law (Grundgesetz) in 1952 and 1956, respectively. In the case of the former, it was demonstrated that the party promoted Nazi ideology and therefore violated the constitution. In the case of the latter, a dictatorship of the proletariat was found to be incompatible with the values system of the Basic Law.

As professed in its constitution, the Democracy Party of China “uses non-violent, peaceful, rational means to realize its political goals, and promote the use of civilized discussion to resolve conflicts and differences of opinion.” It does not pose a threat to liberal democracy — to the contrary, it is actively contributing to the establishment of true liberal democracy governed by the constitution. Treating the China Democracy Party as a hostile organization is a product of dictatorial and oppositional thinking. It is a position which is not only incompatible with the theory of the modern political parties, but even more so it is a violation of the principle of free association enshrined in the Chinese Constitution. The freedom to form organizations and political parties is an undeniable component of free association.

2) Statements, Open Letters, Essays

Mr. Lü Gengsong has consistently exercised his freedom of speech (expression), whether it is through statements, open letters, and essays he has written and published, such as “Understanding the Nature of Chinese Society from Bo Xilai’s Slap in the Face,” “An Open Letter from the Zhejiang Committee of the China Democracy Party to Xi Jinping and Zhang Dejiang,” “Lü Gengsong: The Anniversary of Gaddafi’s Death and Chen Guangcheng’s Birth,” “A Letter of Thanks to Friends at Home and Abroad, and to the International Media, from Lü Gengsong,” “The Dropping and Filing of Charges Against Zhu Yufu,” or through the statements, open letters, and essays he has refused to confirm writing and publishing, such as “A Solemn Statement on the Detainment of Xu Guang and Tan Kai from the Zhejiang Committee of the China Democracy Party,” “Statement on Current Situation in Light of the Heavy Sentences of Chen Xi and Chen Wei,” “Jokes in the Year of the Dragon — A Dedication to New Year’s Day 2012,” “Mourning for Grassroots Pioneer Mr. Fang Lizhi,” “Petition with One Thousand Names: Vehemently Denouncing Chinese Judicial Authorities Guilty Verdict for Zhu Yufu.” Published under his own name, or under the name of the Zhejiang Committee of the China Democracy Party, these statements, open letters, and essays have appeared on sites such as Boxun, China Free Press, Epoch Times, or 64 Tianwang. Beyond simply being expressions of free speech, however, none of Mr. Lü Gengsong’s writings contain “fabrications or distortions of the facts,” any more than they contain “rumors and slander.” Freedom of speech is a basic human right, not only in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, but also guaranteed by the Chinese Constitution.

If an individual publishes a statement under the name of an organization, such as the Zhejiang Committee of the China Democracy Party, it should first be established whether or not that individual has the right to represent the organization in question, so as to determine whether or not the statement represents an individual or organizational point of view. In this case, all of the written and published materials clearly represent the individual point of view of Lü Gengsong, and so fall under the purview of individual freedom of speech. Furthermore, even if a portion of the materials do indeed represent an organizational point of view, they should likewise be considered an exercise of free speech and free association. Free speech should not be used as proof of the crime of subversion of state power.

3) Huangshan Conference

The so-called “Huangshan Conference” convened by Lü Gengsong, Su Yuanzhen, Wei Zhenling, Lou Baosheng, Chu Liang, and others at the residence of Jin Jiming in Huangshan City, Anhui Province, was nothing more than a small private gathering of several Democracy Party of China members, and in no way the first conference of the Zhejiang Committee of the China Democracy Party. Many of the people present were not members of the China Democracy Party, and those who were did not have the authority to represent their branches of the China Democracy Party, not having received any authorization whatsoever to hold an organizational conference. To treat a gathering like this, held at a private residence, as an organizational action of the China Democracy Party is to deny the facts of the situation completely, and is inconsistent with the participants earnest political and organizational conduct. A private discussion like this, even if there is sufficient evidence to demonstrate that the participants “discussed the establishment of the leadership system of the China Democracy Party,” or “assigned duties to various individuals,” anything said on these topics could only represent the opinions of individual participants, and not the organized actions of a political party. Aside from this, in his testimony, Su Yuanzhen has already clearly stated that “no positions were assigned” at the gathering, and Lü Gengsong “had no special position” in the China Democracy Party and was “just a normal party member.” His testimony, along with that of Jin Jiming, Wei Zhenling, Chu Liang, all prove that Lü Gengsong never made a clear statement on the issue of whether or not he would act as the chairman of the Zhejiang Committee of China Democracy Party. And, as the facts demonstrate, after the “Huangshan Conference,” Lü Gengsong never served as the chairman of the Zhejiang Committee of China Democracy Party or organized any activities in this capacity.

Therefore, relying only on the “Minutes of the Huangshan Conference” written and published by Lou Baosheng to determine that the “Huangshan Conference” constituted the organization of a political party, and then to take Lü Gengsong’s participation in the “Huangshan Conference” as proof he is guilty of the crime of subverting state power is obviously ridiculous. A private meeting of members of the China Democracy Party, regardless of what is discussed or under what theme it is organized, cannot be said to fall outside of the freedoms of speech and association afforded in the Constitution, nor can it be said to constitute a crime.

4) Cards and Condolences

Writing, printing, and sending cards, or participating in a memorial for the deceased and giving memorial wreaths, regardless of whether in one’s own name or the name of the Zhejiang Committee of the China Democracy Party, are all normal social interactions, and not political activities. To see giving one’s respects on a holiday, or offering condolences at the passing of a loved one and other behavior typical of Chinese people’s everyday etiquette as key crimes committed as part of Lü Gengsong’s accused subversion of state power is an enormous joke.

III. Opposition Parties and State Power

Alexis de Tocqueville once said: “Among the laws that rule human societies there is one that seems more precise and clearer than all the others. In order that men remain civilized or become so, the art of associating must be developed and perfected among them in the same ratio as equality of conditions increases.” He also said: “In democratic countries the science of association is the mother of science; the progress of all the rest depends upon the progress it has made.”

Man is a social animal, so associations are a natural requirement. The freedom of association is a necessary precondition of all other rights, along with freedom of speech forming the twin cornerstones of civilization. As the most important political right, freedom of association is not only a key element of democracy, it is the primary safeguard of democracy.

In modern mass democratic politics, without intermediary organizations to solicit and collate the will of the people, it is very difficult for individual voters to engage in direct dialogue with their government. Political parties are just this sort of intermediary organization. In this sense, modern democratic politics are party politics; modern nations are nations with political parties. Political parties act as spokesmen for the will of voters, with different voters showing their support for different political parties via the mechanisms of democracy to give voice to their unique concerns; through political parties, the people get to see their abstract political rights being put into practice in the real world.

In this way, the freedom to form political parties can be seen to be an important component of free association. Only with the freedom to form political parties can the people find organizations that will protect their rights and speak up for them. Only with the freedom to form political parties can the people put their political (and economic and social) ideas and ideals into practice. Only with the freedom to form political parties can effective checks and balances and multiparty elections exist. Only with the freedom to form political parties is there a possibility for modern party politics, and for constitutional democracy, to become more than idle words.

Forming political parties is so important that, along with freedom of the press, it has become a key index for assessing the successful democratization of a given country. For this reason, opening up political parties and removing restrictions on publications is thought to be a sign marking the shift from authoritarian autocracy to modern democracy. Modern democracy is built on the foundation of open competition for political power and the co-existence of a plurality of opinions. Moreover, the legitimacy of a given state power must come from universal elections.

In this regard, we must say that a one-party dictatorship is at cross purposes with modern democracy. When a single party monopolizes state power and political office, giving the people no choice, they turn elections into a phony pretense by eliminating real competition, where true opposition is “illegal.” The moment a political party destroys the legitimacy of its opposition party completely, in that same moment it also destroys the foundation of its own legitimacy.

Without multiparty competition, there can be no democratic elections. Without a real opposition party, there can be no legitimate political power. Simple and clear principles like these which have led the China Democracy Party forward through adversity, tireless in the face of overwhelming force, not folding under pressure and not fearing prison. Altogether, they have been sentenced to more than a thousand years of jail time, becoming an inspiring and tragic chapter in the history of Chinese political parties. With an unprecedented degree of courage, they provide an exceedingly moving sacrifice to clear the way for the emergence of party politics in China. In both the mission they have set out for themselves, and the burden they bear, they exist apart from average citizens, providing encouragement and inspiration for others. Together, they have carried the torch of democratic constitutional government to every corner of the land!

IV. Closing Arguments

Mr. Lü Gengsong is already 60 years old and I can’t say for sure if he will survive the next 9 years in prison. He is a person of upstanding moral character, resolute in his ideals, and unyielding in his will, with robust health, an imposing personality. Despite all this, he is, after all, an old man, and life in prison will inevitably wear him down and ruin his health. Will he ever be able to leave the four walls of his jail to rejoin his family and friends? Will he ever be able to reignite the glory and dreams of the disenfranchised people of this land? And does he still hope to see the collapse of the old system and the dawn of a new era? Whenever I consider these questions, I can’t help but feel a sense of despair, because no matter how hard I try, my mind keeps coming back to the fate of our nation, our race, our society, our people.

In the boundless expanse of the universe, humanity is as minute as a speck of dust — but as Kant once said: “The starry heavens above me and the moral law within me.” And it’s true, this moral law within us all is every bit as magnificent as the existence of the many galaxies and stars which we only have to look up to see with the naked eye. I think I finally understand why Lü Gengsong wrote “The sun shines brightly!” on the transcript of his sentencing. Four words, the sun shines brightly. Nothing else matters.

I don’t know if time will come stand on the side of Mr. Lü Gengsong. I do know, however, that morality already does!

Defending counsel:

October 10, 2016 [Chinese]

Translation by Nick.

Lü had previously served a four prison sentence for the lesser charge of “inciting subversion of state power,” also connected with his writing, and was released in August of 2011.