The defense plea entered by lawyers for activist Tan Zuoren at his trial on August 12 is circulating, though it is often being quickly erased. Nonetheless, many, including Tan’s lawyer Xia Lin, continue to discuss it. CDT thanks an anonymous translator for providing the full translation:
Defense Plea in the Tan Zuoren Case
From Xiao Xuehui’s blog [Xiao Xuehui is a public intellectual based in Chengdu]
August 17, 2009
[At the request of Ms. Wang Qinghua, [the wife of Tan Zuoren] the first instance plea of lawyers Xia Lin and Pu Zhiqiang has been released. The two lawyers faced many obstacles and put up with humiliation in order to carry out their important work with rare perseverance to complete their plea, stopping and starting because they were interrupted many times. The first instance plea should have been published as an exact copy of the original document. This is not possible, however, because of web filtering, and so in order to defeat the control of the web, we made technical changes in some of the keywords. This is a very precious legal document. Everyone concerned with the case of Tan Zuoren should read it.
— Xiao Xuehui made this explanation and requests that this document be reposted on other websites.]
The case of Tan Zuoren Accused of Incitement to Overthrow State Power
To the Panel of Judges of the Tan Zuoren case:
The Beijing Huayi Law Office, which was commissioned according to law by the defendant Tan Zuoren, designated the lawyers Xia Lin and Pu Zhiqiang to make the first instance plea. After receiving this commission, we reviewed the case files, interviewed the defendant, and conducted many interviews and conducted many investigations. We believe that after being reviewed by the court, the accusations brought by the prosecution against Tan Zuoren cannot be proven. Based on the indictment and evidentiary materials exchanged with the prosecution before the trial, we make the following defense:
I. With regard to the nature of the article “1989: The Last Beauty I Witnessed — the Tiananmen Diary of an Eyewitness” written by the defendant Tan Zuoren:
The prosecution states that “The accused Tan Zuoren is dissatisfied with the way the Central Committee of the Chinese Communist Party handled the”June X Incident” and the conclusions it drew about that incident. For many years, he has been carrying out in many ways “June X” commemorative activities. On May 27, 2007, Tan Zuoren concocted an article entitled “1989: The Last Beauty I Witnessed — the Tiananmen Diary of an Eyewitness” and distributed it through the Internet to a website outside of mainland China’s borders, “The Torch of Liberty,” as well as to other websites. The main points of this article provide a distorted account of the “June X Incident” and libel the Chinese Communist Party Central Committee’s handling of it.”
The definition of “libel” in the dictionary is “making something out of nothing, saying bad things about a person, damaging a person’s reputation, slandering someone” (See Modern Chinese Language Dictionary, Second Edition, P. 315, published January 1983). The prosecution’s charge that the defendant Tan Zuoren “made a distorted account and committed libel” is a matter to evaluate according to the facts and as to whether the contents of Tan Zuoren’s article are true.
The court investigation has already determined that “1989: The Last Beauty I Witnessed — the Tiananmen Diary of an Eyewitness” was written on May 27, 2007 and is his personal response to statements about the “June X Incident” by Ma Li, Chairman of the Hong Kong Popular Alliance. The purpose of the article was to make the facts clear (see interrogation record).
However, after Ma Li made that statement, the Vice Chairman of the Hong Kong Popular Alliance, Liu Jianghua said that Ma Li’s statement did not represent the views of the Popular Alliance and wanted to apologize on his behalf. Tan Zuoren wrote this article based upon his memories as an eyewitness of the period leading up to and following the “June X Incident”. The prosecution in its accusation states that Tan Zuoren “made a distorted and libelous account” but has not presented evidence to support that accusation. Nor has it in court “made an accurate account”, so how can Tan Zuoren be accused to writing falsehoods?
According to the indictment, Tan Zuoren has “for many years in many ways conducted activities commemorating ‘June X'” but has presented no evidence to support this charge. Moreover, according to Tan Zuoren’s own account during interrogation in court, before the 2007 statement of Ma Li, he had not conducted any commemoration of “June X”. So what is the basis of “for many years” and what is the basis of “in many ways”?
The defense believes that this prosecution charge against the defendant Tan Zuoren is vague, untrue and not supported by the evidence.
The charge cannot be proved according to law and so should clearly be rejected.
II. With regard to the prosecution’s accusation that Tan Zuoren communicated with the “enemy element outside China’s borders” Wang Dan and suggested that voluntary blood donation drives be conducted.
According to the prosecution’s accusation, “Shortly after the article was published, the enemy element outside China’s borders Wang Dan contacted him by e-mail and on several occasions sent him propaganda materials about the ‘June X’ incident.
On June X, 2008, the accused Tan Zuoren together with others in Chengdu’s Tianfu Square conducted a voluntary blood donation drive to commemorate ‘June X’ by donating blood. Shortly thereafter, he was interviewed by telephone by the media outside mainland China’s borders, ‘Voice of Hope’. Since November 2008, Wang Dan on several occasions sent him materials on activities to commemorate the so-called twentieth anniversary of the ‘June X’ incident. On February 10, 2009, the accused Tan Zuoren sent Wang Dan an email ‘Suggestions on the Twentieth Anniversary of June X’ suggesting that during this year’s ‘June X’ period conducting so-called ‘June X Worldwide Chinese Voluntary Blood Drives’ in order to commemorate the twentieth anniversary of ‘June X’.”
With respect to this charge, the defense believes:
1. Criminal methods of incitement to overthrow state power involve the open encouragement of a group of two or more people. The facts presented in this accusation involve a private email between Wang Dan and Tan Zuoren. This is not in accord with the open nature of this crime and that the incitement be directed at a group of two or more people.
2. The designation of Wang Dan as an “enemy element outside of China’s borders” has not been officially announced by the state and the defendant is not aware of this. Moreover, a search of PRC criminal law did not turn up a crime of “communicating with enemy elements outside of China’s borders”. The prosecution has already determined that Wang Dan is “an enemy element outside of China’s borders” and according to the accusation statement, Wang Dan took the initiative to send to a mailing list materials on “June X”. Considering the political attitudes and behavior of the two people involved in the communication, it could be claimed that Wang Dan was inciting Tan Zuoren but surely it would be nonsense to suppose that the accused Tan Zuoren sought to incite Wang Dan. This is clearly absurd nonsense. This accusation by the prosecution is obviously mistaken.
III. With respect to the prosecution charge that Tan Zuoren made statements about the May 12th Earthquake
The court investigation states that after the May 12 earthquake, the accused Tan Zuoren was interviewed several times by media from both inside and outside China’s borders and on many occasions acted as a guide to assist them in their interviews and investigations. These media included Xinhua, Liaowang Oriental Weekly, First Financial Daily, Humanity and the Biosphere, etc. as well as Hong Kong broadcasters under the Hong Kong government. No matter whether he was interviewed by media from inside or outside China’s borders, he said the same thing.
However, the prosecution accusation stresses only that “Tan Zuoren on several occasions was interviewed by media from outside China’s borders, and made statements that severely damaged the image of our Party and government,” which clearly takes things out of context to make these activities look suspicious.
The defense response to these accusations:
1. The prosecution’s accusations are abstract and empty. The prosecution presented 22 articles with a total of tens of thousands of words as evidence. Looking over these articles, one finds some discussion of the work of the Party and government in earthquake relief. Tan Zuoren praises them where praise is due but not excessively. He does not pass over their shortcomings in silence but discusses them. Just which chapters and which words have anything to do with subversion? I really don’t know.
These 22 articles were collected by the prosecution from the private computer of Tan Zuoren and were edited by Tan Zuoren himself on his computer in the “My Documents” folder. None of them are transcripts of media interviews. This being such an “important case,” how could it have been handled so sloppily? How can these documents be taken as manuscripts that are used as evidence in a criminal case?
2. The court investigation determined that Tan Zuoren is the deputy secretary-general of the Green Rivers environmental NGO and has long been concerned about the construction of hydroelectric power plants in southwest China. His statement about the earthquake involved an analysis of the causes of the earthquake and how it could have been prevented was from the perspective of an expert. This analysis is based upon a considerable amount of scientific evidence. The defense has already provided these materials to the court. Moreover, two experts on the subject, Fan Xiao, an engineer from the Sichuan Province Mining Bureau Geological Survey Team and Prof. Ai Nanshan of the Sichuan University Construction and Environmental College are willing to testify as defense witnesses in court. They are now waiting outside the court because unfortunately the court arbitrarily refused to hear them. We regret this decision.
3. According to the court record of interrogation, after the May 12 earthquake Tan Zuoren made 23 trips to determine the number of students who were killed in the earthquake as well as the number of school and dormitory buildings that had collapsed. He spent over 50 days on these survey trips and collected much first-hand material. He made an objective description of the situation based on these trips.
His surveys showed that for many of the schools in the earthquake zone, poor construction quality led to their collapse. The problem of “bean curd construction” that Tan Zuoren describes certainly exists. Tan Zuoren urges now that the cause of the collapse of the schools and dormitories be thoroughly investigated, that the people responsible face criminal prosecution, and that a natural disaster should not be an excuse to hide a man-made calamity. What is wrong with saying this? And how can anyone be accused of committing a crime by saying this?
Provoked by the deaths of so many students, Tan Zuoren may have said some words in anger and criticized the Ministry of Education. But the defense wants to remind the prosecution: to criticize is not to incite to overthrow the state. The Ministry of Education has never represented state power. Therefore nothing could be as ridiculous as this accusation against Tan Zuoren for incitement to overthrow state power.
IV. The prosecution’s accusation on the legal nature of Tan Zuoren’s behavior.
The prosecution believes that: “The indicted Tan Zuoren, in order to achieve his goal of subverting state power and overthrowing the socialist system fabricated things out of whole cloth, distorted news, and spread speech that is injurious to state power and the socialist system in order to hurt the image of state power and the socialist system in the eyes of the people. This constitutes a crime under article 105 of the Criminal Code of the People’s Republic of China. The crime is clear, the evidence is certain and abundant. Tan Zuoren should be prosecuted and convicted of the crime of inciting subversion of state power.”
The defense again reminds the panel of judges that the accused Tan Zuoren, who has made an accurate description of many matters, is accused of “fabricating things out of whole cloth and distorting news”. However, the prosecution has not yet presented any evidence to contradict what Tan Zuoren has written nor any evidence supporting the accusation. If the prosecution is unable to present relevant evidence, then some of the matters it has presented as fact are not credible.
The defense presents three opinions on the legal validity of the accusations brought by the prosecution:
1. Tan Zuoren’s speech related to this case is a matter of a citizen exercising his right to make suggestions and criticisms. That speech does not constitute incitement to overthrow the state and does not fit the criteria for that crime.
This crime is found in the first chapter of the criminal code, “Crimes Against State Security”. Examining that section of the law, it is clear that the definition of this crime is limited to threatening state security.
How can speech threaten state security? We can find an explanation in “The Johannesburg Principles on National Security, Freedom of Expression and Access to Information” which are widely accepted by international society. Principle Five holds that “Subject to Principles 15 and 16, expression may be punished as a threat to national security only if a government can demonstrate that: (a) the expression is intended to incite imminent violence; (b) it is likely to incite such violence; and (c) there is a direct and immediate connection between the expression and the likelihood or occurrence of such violence.”
In China’s legal system no legal or administrative explanation accompanies the legislation on this crime. Therefore, widely accepted international principles can provide an important reference point for the judging of this case. The speech of Tan Zuoren relating to this case had no language inciting to overthrow of the state or to violence. On the contrary, Tan Zuoren’s political views favor gradual and peaceful social progress. The objective effect of his views does not harm but actually supports state security and so of course does not fall with the legal definition of this crime.
Article 41 of the PRC Constitution stipulates: “Citizens of the People’s Republic of China have the right to criticize and make suggestions to any state organ or functionary.” The defense believes that Tan Zuoren’s speech involved in this case was the normal exercise by a citizen of their right to criticize and make suggestions, and should therefore be protected by the PRC Constitution. How can it be construed as “incitement to overthrow the state”?
2. Tan Zuoren did not have any subjective intention to incite to overthrown the State.
This crime in its subjective aspect relates to intention; the person committing the act must have the motive of inciting two or more persons to act to overthrow state power and to overthrow the socialist system.
The defense believes that in order to determine the subjective motive of a personal act, one needs to do a historical study of its objective manifestations over a long period. The court investigation shows that the indicted freely confesses without reservation that he is passionate about the well-being of society and that he has for a long time been making outstanding contributions to political science and administration.
The principal facts are these:
* During 1996 – 1997, he served as the chief planner of the Chengdu City government’s Fenghuang Mountain development project and later led the planning work for the Sichuan International Rehabilitation Center and the Chengdu Rest Home and Assistance Center for the Elderly, the Chengdu City Temporary Residence project, and was asked by the Pi County government to design the Jinguancheng Recreation Area, the Shudu Rear Garden and other projects;
* In 1998, he was asked by the Sichuan Province Academy of Social Sciences to plan the “Great Turn of the Century Human Talent Project”;
* In 1999 he participated in the Yangtze River Environmental Memorial Construction Project;
* In 2000 he planned the Sichuan Exhibition Center transformation project;
* In 2001 he was chosen by the Chengdu Daily as an outstanding citizen of Chengdu;
* In 2002 he planned and implemented the “Century of Great Changes – Chengdu’s Big Transformation” a major photo exhibition; at the Sichuan Provincial People’s Congress consultative conference his proposal to enact a law to protect the Great Panda was adopted. He also participated in the planning for the construction of the “Deng Xiaoping Old Home Tourism District”;
* In 2004 he was invited by the Chengdu Jinniu District to devise a plan for the Jinsha Ruins Park. His proposal for the “Tianfu Gourmet Park” was adopted and became a key project for Chengdu. On behalf of the Sichuan Cultural Bureau he designed and organized a “Culture and the Creative Industries Forum”; revised and made new suggestions for the “Chengdu City Cultural Tourism Industry Plan”, participated in several important meetings organized by the Chengdu City Propaganda Department, participated in the survey and review of the “South to North Water Diversion Project”;
* In 2006, he was asked to design the “Chengdu City Eastern Suburbs Creative Industries Park” concept;
* In 2007 he led the “Chengdu Citizen Ethnic Culture Tourism Development Plan”. His Botiao River Research Project and the research on the “Small Scale Western Waters Diversion” won the approval of Premier Wen Jiabao;
* In 2008, he designed the Cultural Tourism Street project for the Xichang City government. He wrote and distributed an academic report on the issues of the Pengzhou City petrochemical plant project entitled “A Citizen’s Suggestion on the Pengzhou City Petrochemical Project” and sent it to the departments concerned;
* In 2009 he participated in the “May 12 Student Deaths Survey”.
The facts above demonstrate that Tan Zuoren has contributed for the past twenty years to the construction of Chengdu and of Sichuan Province, to scientific planning and to economic planning, all of which have greatly improved the image of the government. In his capacity as a Chinese citizen or as an outstanding expert, Tan Zuoren has also of course criticized some improper administrative actions of the government. How could these well-intentioned and honest criticisms can be maliciously understood as incitement to overthrow state power?
3. The behavior and speech of Tan Zuoren do not constitute this crime.
As everyone knows, the character of the PRC government is a “people’s democratic dictatorship”, that is to say the great majority of the people through democratic means hold state power. Overthrowing state power, then, means having the intention to use anti-democratic methods to destroy the system of people’s democracy. By looking through all of Tan Zuoren’s writings, one can see that he is a person who passionately loves the people, supports democracy, and is opposed to autocracy. Mr. Tan Zuoren is a pioneer of people’s democracy and its guardian, not one who would overturn it and destroy it. To convict him of incitement to overturn state power contradicts the basic character of PRC state political regime.
The matters described above are sufficient to prove that none of the accusations of the prosecution about the speech and actions of Tan Zuoren constitute the crime described in Article 151 in the PRC Criminal Code of “incitement to overthrow state power”. The accusation that Mr. Tan Zuoren committed this crime fails for lack of evidence.
Sichuan since ancient times has been a place where cultured people gather. Many heroes have arisen throughout the history of Chengdu. We are confident that Sichuan has sufficient political wisdom to handle the Tan Zuoren case. Let us quote here a couplet from the Wuhou Temple of Chengdu for the people involved in this case:
“Those able to win people’s hearts are able to eliminate their doubts and their worries; from ancient times people knowledgeable in military affairs have avoided fighting whenever possible; those who are not able to judge situations will make mistakes no matter whether they are strict or lenient. Those who govern Sichuan in the future should deeply reflect upon this.”
The defense earnestly requests that the panel of judges reflect deeply and according to Article 162 of the Law of Criminal Procedure of the PRC, and that they find and proclaim the defendant Tan Zuoren not guilty.
Defense attorneys: Xia Lin and Pu Zhiqiang
Beijing Municipality Huayi Law Firm
August 12, 2009