Thursday, February 13, 2014

China Law Translate | Xu Zhiyong Opinion

Beijing Intermediate People's Court No.1

"Defendant Xu Zhiyong has committed the crime of gathering a crowd to disturb order in a public place. He is sentenced to a fixed-term imprisonment of four years."
- Beijing Municipal No. 1 Intermediate People’s Court Criminal Division, First-Instance Verdict No. 5268 (2013)

IN 1948 in Terminiello v. Chicago the U.S. Supreme Court confronted a question much like that of the Beijing Intermediate People's Court.
Father Arthur Terminiello, a right-wing demagogue, in an auditorium in Chicago, delivered a vitriolic speech in which he criticized various political and racial groups and viciously condemned the protesting crowd that had gathered outside the auditorium. Policemen assigned to the event were unable to prevent several disturbances by the "angry and turbulent" crowd. The police arrested Terminiello for "breach of the peace." He was then tried and convicted for his central role in inciting a riot.
In a 5-to-4 decision, the Court held that the "breach of the peace" ordinance unconstitutionally infringed upon the freedom of speech. Noting that "[t]he vitality of civil and political institutions in our society depends on free discussion," the Court held that speech could be restricted only in the event that it was "likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest." 
Justice William O. Douglas wrote that "a function of free speech under our system is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger." 

China has a long way to go - and there's no reason to think they are going to get there.  Xu Zhiyong - an advocate of western-style liberal democracy - is a determined adversary of the Chinese Communist party which maintains a virtual monopoly of political power.

Jeremy Daum and the China Translate project volunteers have translated the judgment of the court.  One small irony is that the Chinese Supreme People's Court has directed that all judgments be posted on the internet.  In that respect they are well ahead of us.  But in tolerance of political speech and dissent they are not in the ballpark - gwc

China Law Translate | Xu Zhiyong Opinion:

Beijing Municipal People’s Procuratorate Branch No. 1 charged that:

Between July 2012 and March 2013, the defendant Xu Zhiyong, individually and together with others, exploited social issues of great public concern to organize, orchestrate and incite many people to take multiple actions to gather crowds to distrub order in public places, including in front of the Ministry of Education, in front of the Beijing Municipal Education Commission, the South Gate of Chaoyang Park, Zhongguancun, and the Xidan Cultural Square. After committing the offenses, the defendant Xu Zhiyong was apprehended by public security organs.

The Beijing Municipal People’s Procuratorate Branch No. 1 turned over evidence to this court, including physical evidence, written evidence, witness testimony, evaluation opinions, records of crime-scene inspections, audio-visual materials, digital data and the defendant’s statements and explanations. [The procuratorate] found that the defendant Xu Zhiyong repeatedly organized and orchestrated the gathering of crowds to disturb the order of public places and resisted and obstructed state public safety management personnel's lawful performance of their duties; that the circumstances were serious, and that qualify him as a ringleader; that his acts have violated the provisions of Article 291 of the Criminal Law of the People’s Republic of China so that criminal liability should be pursued for the offense of gathering a crowd to disturb the order of a public place; and requested this court to punish him in in accordance with law.

During the trial, the defendant Xu Zhiyong raised objections on jurisdiction and the separation of the case into multiple trials, and did not express opinions on the facts and offenses charged in the indictment. During the court investigation and debate phases, the collegiate bench on repeatedly informed Xu Zhiyong that he enjoys the right to a defense and may express his opinions regarding the facts and evidence in the case. Xu Zhiyong neither expressed his opinions regarding the facts and evidence in this case nor mounted a defense. During the closing statement phase of the trial, Xu Zhiyong discussed his motives for his actions and indicated that the agitation of individual participants were caused by other factors.

During the pre-trial conference, the defendant Xu Zhiyong’s defenders raised objections to the jurisdiction and separation of the case into multiple trials. During the court investigation and debate phases, the collegiate bench repeatedly reminded the defenders that they have a duty of defense in accordance with the law, and should to present materials and opinions, on the basis of facts and the law, showing the the defendant’s innocence or the lightness of the offense, and preserve the defendant’s procedural rights and other lawful rights and interests. During the court’s investigation phase, Xu Zhiyong’s defenders neither posed questions to Xu Zhiyong nor offered opinions on the evidence and no defense arguments were expressed during the court debate phase..

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