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Sunday, February 22, 2015

Nine Lawyers File FOIA Request Demanding Legal Basis for Banning the Spread of Western Value Systems in China's Universities

On February 10, 2015, copies of a Freedom of Information Application began appearing online under the title "By Its Nature Learning Should Be Open, To Seal Up Schools and Shut Up the Country is to Endanger the Nation" (学术天然应开放 封校锁国必误国). The Application, dated February 6, was addressed to the Ministry of Education and was signed by nine Chinese lawyers from Beijing, Hubei, Chongqing, Guizhou, and Yunnan: Yang Mingkua (杨名跨), Liu Wenhua (刘文华), Xu Silong (许思龙), Fu Wei (付薇), You Feizhu (游飞翥), Li Guisheng (李贵生), Zhou Lixin (周立新), Zhao Qing (赵庆), and Huang Simin (黄思敏).

The Application noted that, on January 29, 2015, Xinhua reported that at a meeting to study the spirit of the “Opinion Regarding Further Strengthening and Improving Propaganda and Ideology Work in Higher Education Given New Circumstances," Minister of Education Yuan Guiren said that it was necessary to strengthen controls over the ideological battlefield at institutions of higher learning, and in particular to strengthen controls over the creation of teaching materials and in-class instruction. Yuan also issued what came to be known as the "Four Absolute Nos":

  1. Under no circumstances allow into our classrooms any teaching materials that spread Western value systems. 
  2. Under no circumstances permit any discussion that attacks or defames the Party's leaders or smears socialism to take place in college classrooms. 
  3. Under no circumstances permit any discussion that violates the Constitution or laws to spread in college classrooms. 
  4. Under no circumstances permit instructors to grouse and complain in the classroom, or inculcate a bad mood amongst the student body.

For more about this, see this previous blog post: China's Search Engines Censor Searches for Scholar Who Questioned Education Minister's Anti-Western Values Stance.

The Application requested the following information from the Ministry of Education:
  1. Provide the legal support and the basis of authority for Yuan Guiren's "Four Absolute No's" order to the nation's institutes of higher learning.
  2. Publish a standard for delineating "Western value systems."
  3. Publish the criteria for differentiating between "attacking, defaming, and smearing" and the rights of criticism, suggestion, and free speech enjoyed by citizens under the Constitution.
一、请教育部公开部长袁贵仁2015年1月29日指令全国高校“四个绝(决)不”的法律依据和权力来源;
二、请教育部公开“西方价值观念”的界定标准;
三、请教育部公开“攻击、诽谤及抹黑”与公民依《宪法》享有的批评建议权、言论自由、学术自由之间的区分标准。
The Application offered background for these requests. Here are some excerpts:
According to Article 9 of the Organic Law of the State Council:  "The Ministers in charge of the ministries or commissions shall direct the work of their respective departments; convene and preside over ministerial meetings or the general and executive meetings of the commissions; sign important requests for instructions and reports to be submitted to the State Council; and sign orders and instructions to be issued to their subordinate units." In many local education administrative offices and while attending many meetings with responsible officials from institutes of higher learning, Education Minister Yuan Guiren has used the "Four Absolute Nos" as the basis to issue specific orders regarding national education work on behalf of the Ministry of Education. These are actions taken in his official capacity as Minister of Education, and is a classic example of an executive order. 
According to the fundamental requirements for exercising executive authority in accordance with the law as set forth in the "State Council Implementation Outline for Comprehensively Promoting Administration in Accordance with the Law," administrative agencies must conduct executive management in accordance with relevant laws, regulations, and rules. Where something is not stipulated in a law, regulation, or rule, then an administrative agency may not issue any decisions which impact the legal rights and interests of, or which create additional duties for, citizens, corporations, or other organizations. 
The "Chinese Communist Party Central Committee Decision on Certain Major Issues Regarding Comprehensively Promoting the Rule of Law" also clearly requires: "All levels of government must insist upon executing tasks on a rule-of-law track. . . . Administrative agencies shall ensure that they perform those duties mandated by law, and not take actions they are not empowered to take. . . . Administrative agencies shall not establish any authority beyond what is legally mandated, and must not, except upon the basis of laws and regulations, issue any decisions which deplete the legal rights and interests, or increase the duties, of citizens, corporations, or other organizations." 
. . . . 
Article 2 of China's Constitution provides: "All power in the People's Republic of China belongs to the people." Article 35 of the Constitution provides citizens with the right to freedom of speech. Article 41 of the Constitution provides citizens the right to criticize and offer suggestions to "any state organ or functionary." Article 47 further ensures citizens' "freedom to engage in scientific research, literary and artistic creation and other cultural pursuits." Education Minister Yuan Guiren's "Four Absolute Nos" executive order places severe additional requirements and restrictions upon the aforementioned Constitutional rights with respect to the activities of institutions of higher learning, and he ought to publicly explain the legal basis from which this power originates.  
Furthermore, how to define "Western value systems" How to distinguish speech that "attacks and defames Party leaders, and smears socialism"? How to balance speech that is allegedly "attacking, defaming, and smearing" against the rights granted to citizens under Articles 35, 41, and 47 of the Constitution to the freedom of speech, to criticize and suggest, and to academic freedom?  
根据《国务院组织法》第9条:“各部、各委员会实行部长、主任负责制。各部部长、各委员会主任领导本部门的工作,召集和主持部务会议或者委员会会议、委务会议,签署上报国务院的重要请示、报告和下达的命令、指示。”教育部长袁贵仁在有诸多地方教育行政部门和高校负责人出席的教育部会议上,通过“四个绝(决)不”代表教育部对全国高校教育工作作出具体部署,是履行其教育部长职务的行为,属于典型的行政指令。 
按照《国务院全面推进依法行政实施纲要》对依法行政的基本要求,行政机关实施行政管理,应当依照法律、法规、规章的规定进行;没有法律、法规、规章的规定,行政机关不得作出影响公民、法人和其他组织合法权益或者增加公民、法人和其他组织义务的决定。《中央关于全面推进依法治国若干重大问题的决定》亦明确要求,“各级政府必须坚持在法治轨道上开展工作;……行政机关要坚持法定职责必须为、法无授权不可为;……行政机关不得法外设定权力,没有法律法规依据不得作出减损公民、法人和其他组织合法权益或者增加其义务的决定。”
. . . .
《中华人民共和国宪法》第2条规定:“中华人民共和国的一切权力属于人民”。《中华人民共和国宪法》35条规定了公民的言论自由权,第41条规定了公民“对于任何国家机关和国家工作人员”的批评建议权,第47条进一步保障公民进行“科学研究、文学艺术创作和其他文化活动的自由”,在前述一系列宪法权利面前,袁贵仁部长通过“四个绝(决)不”的行政指令对高校教学活动苛以更多要求和限制,理应公开并说明其法律依据和权力来源。同时,如何定义“西方价值观念”?如何区别“攻击诽谤党的领导、抹黑社会主义”的言论?如何衡量所谓的“攻击、诽谤及抹黑”言论与宪法第35、41、47条赋予公民的言论自由、批评建议权和学术自由?