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An Open Letter to Procuratorate of Haidian District from senior researchers of the Transition Institute

Former members of the Beijing-based independent think-tank, Transition Institute, in this open letter to the authority charged with deciding whether or not to prosecute TI’s co-founder, Guo Yushan, and He Zhengjun, TI’s former administrative director, challenge the case against them and call for their immediate release. The Transition Institute was shut down last October in a heightened government crackdown on Chinese civil groups.

Note from Probe International: The public response to the “Transition Institute case” has not been condemnation of the Institute, its members and its work (researching and writing articles and reports, and giving university lectures on policies central to China’s economic development and environmental protection) as the Chinese authorities might have hoped. Rather, the move to shut down TI and target two of its members with criminal charges has drawn condemnation of the public security authorities and antipathy for the “Recommendation to Indict” Guo Yushan and He Zhengjun from the public at large, lawyers, and scholars. The following letter garnered widespread public support for the Transition Institute on Chinese social media and prompted yet another visit from the police to the signatories. International media continues to follow this important case. Meanwhile, there has been overwhelming support for the news that Pan Haixia, a lawyer and the wife of detained economic scholar and TI co-founder, Guo Yushan, is to represent him as his attorney: a move that is also expected to make legal history in China. Without the right to visit her husband, Pan, in her capacity as his lawyer, can now gain access to Guo in custody as she builds her case to defend him. According to China’s Criminal Procedure Law, the People’s Procuratorate of Haidian District (which took over the case from the First Branch of Beijing Municipal People’s Procuratorate on April 15) is due to deliver a decision on the case against Guo Yushan and He Zhengjun by May 15, but delays are entirely possible. The procuratorate has the option to extend its decision by another 15 days. 

April 27, 2015

To the Procuratorate of Haidian District, Beijing Municipality:

We, former members of staff at the TI, are aware of the recommendation for indictment sent to the First Branch of Beijing Municipal People’s Procuratorate by the Beijing Public Security Bureau on April 24, in which TI was accused of “illegal business activity.” In the knowledge that your honored Procuratorate is handling the case, we would like to offer you our opinions thereof.

1. Why did the police spend six months investigating a well-known fact?

TI is a research platform with the status of an independent think tank. Its work consists of investigating social issues and public policy, writing research reports, and printing and publishing those reports and data. This work has always been undertaken openly and honestly. The organization’s research was not only posted on the TI website (which was shut down last October), but was also presented to state security personnel when they visited the office and invited TI staff to “tea.”[1] Thus, the municipal police were fully aware of the kind of research TI performed.

The amount of research undertaken by TI was easy for the police to ascertain, given the organization’s long-term contract with a printing company, which TI used for all its printing. As early as August 2013 when the TI office was raided by the Beijing Civil Affairs Bureau, some research materials were seized, and the printing company was also investigated. In other words, by August 2013, the government departments already had a comprehensive understanding of TI’s research.

TI has never been evasive about these matters, and the government departments knew that. And yet, since October 2014, the Beijing Municipal Public Security Bureau has deployed many of its staff and spent as many as six months on this “investigation.” We don’t know whether to laugh or cry!

2. It’s hard to call a widely accepted social norm a violation of the law

In today’s China, distributing printed materials for free to peers, teachers, and friends for the purposes of exchange is commonplace. Government departments, research institutions, businesses, and individuals all participate in such activities to some degree. We can say that this is a widespread social reality in our country. When it comes to real crimes, it is clearly inappropriate to neglect to investigate them because the offenders are so many. However, printing materials should not automatically be considered illegal. Since ancient times in China, scholars have printed and presented texts to other members of their community as a legitimate form of exchange – whether composing a poem to which others replied, or expressing their views on a certain matter. Even during periods of literary inquisition such as those initiated by the Kangxi, Yongzheng and Qianlong emperors,[2] this practice remained popular and was not officially prohibited.

Generally speaking, the charge of “illegal business activity” refers to business activities through which the offender seeks illegal profits and which disturb the market order as a result. But most printing activities widespread today are not in themselves commonly understood as business practices, since the printed materials are distributed free of charge, making no profit, certainly without disturbing the market order. TI’s printed materials clearly belong to this category.

Even according to the “Supreme People’s Court’s Interpretation of Legal Issues Associated with the Trial of Criminal Cases of Illegal Publications,” TI certainly did not engage in “illegal business activity,” because its printed materials did not meet the condition of “seriously harming social order and disrupting the market order.”

Moreover, justice is a fundamental principle of the rule of law. If the public security department regarded TI’s printed materials as constituting “illegal business activities,” why was the municipal police so inconsistent with its pursuit of similar activities undertaken by other institutions and individuals? “Selective enforcement” by the police not only violates rule of law, it may also constitute
malfeasance.

3. Both the police and the procuratorate should follow the trend towards the rule of law

The government is currently enforcing a strict examination and approval system for publication management, but we shouldn’t rigidly understand this system with a mindset that goes against the rule of law. The “Administrative Licensing Law” stipulates the following: in order to establish an administrative license, the licensee must follow the laws of socio-economic development; help bring the initiatives of citizens, legal persons or other organizations into full play; safeguard public interest and social order; and promote the harmonious development of the economy, society and ecological environment.

The law also provides that the license is not required to be established in the following circumstances: those that can be decided by the citizens, legal person or other institution themselves; those that can be effectively regulated by competitive market mechanisms; those that are subject to self-management by trade organizations or intermediary institutions; and those matters that can be resolved by the subsequent supervision of administrative organs and through other administrative methods.

In addition, since China’s new leaders took office, the concept of the rule of law has been the subject of unhindered debate. Simultaneously, at the institutional level, decentralization and administrative streamlining have been promoted. Publication management has not yet been decentralized or streamlined, but given the current administration’s concern with the rule of law, we hope that the social norm of printing materials for distribution will be seen in a more favorable light.

For TI, printing materials is an academic practice based on professional knowledge and concern for society, which benefits the country and its people. If convicted on this basis, TI would be convicted for the “crime of independent study” and the “crime of academic exchange.” How could anyone be convinced by the merits of such conviction, whether in law or in principle?

4. Police should not be hostile towards international cooperation

In the recommendation for indictment submitted to the Procuratorate, the Beijing Public Security Bureau made special note of TI’s partners, and described “…funds provided by domestic and foreign foundations, NGOs and the U.S. Embassy…” This vague wording seems to be an attempt to manufacture an impression of TI as a “mouthpiece of foreign forces.” We must solemnly point out that such ideas and statements not only violate the facts, but also indicate the backwardness and rigidity of the police’s thinking.

TI is a legally registered and independent legal person who can operate autonomously. TI maintains equality with all its partners, and its cooperation with them is based on bilateral interest on given issues. The partners have no right to interfere with TI’s operation and research, nor are responsible for its behavior. The police are now taking pains to point out that the institute’s partners “provided funds.” We wonder if the Beijing Municipal Public Security Bureau would use similar expressions in its other recommendations, for example: “using government positions and salaries to take bribes, pervert justice, and engage in cronyism?”

Furthermore, according to the police’s wording, it seems that they are alleging that TI committed “the crime of cooperation with domestic and foreign foundations, NGOs and foreign embassies.” Since the reform and opening up, especially since its accession to the WTO, China has benefited greatly from engagement with the international community. International exchange occurs at both official and civil levels, and includes commercial transactions, academic exchange, and public welfare initiatives. TI’s engagement in academic and public welfare cooperation was at the civil level, and consisted of normal activities.

Officials should consider this in a dispassionate manner, rather than use ambiguous wording to stigmatize and smear TI.

In summary, we entreat your honor to be guided by the provisions of the “Criminal Procedural Law,” refuse the indictment, and immediately release our friends and colleagues, Mr. Guo Yushan and Mr. He Zhengjun.

In addition, in the light of the fact that the Beijing Municipal Public Security Bureau abused its power and committed other illegal acts in its handling of TI’s case, we call for the immediate submission of this case to the Beijing Municipal People’s Procuratorate and an investigation into the violations committed by the Beijing Municipal Public Security Bureau.

Signed by:

Chen Min (Xiao Shu), TI Researcher, worked at TI: September 2012-November 2014

Huang Kaiping, TI Researcher and Second Director of TI, worked at TI: March 2010-November 2014

Xia Nan (Chu Wangtai), TI Researcher and Director of Board, worked at TI: March 2007-November 2014

Ren Xinghui, TI Researcher, worked at TI: October 2008-November 2014

Yang Zili, TI Researcher, worked at TI: August 2009-November 2014

Liu Zhi, TI Researcher, worked at TI: June 2011-November 2014

Ding Minshuai, TI Researcher, worked at TI: October 2011-November 2014

Wu Aoqi, TI Researcher, worked at TI: November 2007-September 2010

Return to text Since around 2007, Chinese netizens have used terms such as “invited to tea,” “tea talk” or “forced to drink tea” to describe interrogations by the internal security police. These “tea talks” with police have become so common that Chinese netizens, in particular those who are active and influential, regard it as part of everyday life. Those invited to “tea” are asked about their political activities and warned against further involvement.

Return to text Refers to the consecutive reigns of three emperors of the Manchu Qing Dynasty (1644-1911), who all ordered literary inquisitions: Kangxi, who reigned from 1661 to 1722, Yongzheng, who reigned from 1722 to1735, and Qianlong, who reigned from 1735 to 1796.

_________________________

Update: The Transition Institute case returned to police for further investigation

Published on June 2, 2015

Monday, June 1: Li Jin, one of two lawyers representing detained Transition Institute (TI) founder, Guo Yushan, said the People’s Procuratorate of Haidian District (which took over the TI case from the First Branch of Beijing Municipal People’s Procuratorate on April 15) returned the case against Guo Yushan, and TI administrative director He Zhengjung, to the police authorities for further investigation on May 30.

According to China’s criminal procedure laws, the time limit for further police investigation is one month. Upon completion, the police are likely to recommend to the Procuratorate that the suspect be indicted but the decision by the Procuratorate could take another 1.5 months. The case can also be returned to the police for further investigation again if the Procuratorate considers existing evidence insufficient. The maximum number of times a case can be returned to the police for further investigation is two times.

Therefore, the decision whether or not to indict Guo Yushan and He Zhengjung could take five more months in total if the Procuratorate deems the maximum number of reviews permitted by law are necessary.

_________________________

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