“If you want to see Mao, you can go to his mausoleum at Tiananmen Square, but don’t forget it’s a Chinese version of the Yasukuni Shrine, which glorifies Mao, under whose hands many people were massacred.”
“Chiang Kai-shek was a dictator ruling with one party, but Mao was actually no different.”
“Less than 5 percent of the content of Chinese history textbooks is true, the rest is pure nonsense.”
These are just some of the comments from popular history teacher Yuan Tengfei that sparked a nation-wide debate in May with many major news organs carrying related stories. (More about Teng here, here and in this great post at chinaelectionsblog.) The public controversy centered around the damage Yuan could supposedly inflict on the image of national political icons and thereby erode the faith that Chinese people put in their leadership, with a lot of statements going something like “of course some of what he says is true but he really shouldn’t say it in such a disrespectful way, especially not in front of students”. It also illustrated how fast this nation can be polarized by one person openly questioning the consensual “historical truth”.
Incidentally the debate led up to the anniversary of a major political incident that is still a taboo in Chinese classrooms (and elsewhere). Even though the party regularly states that “the Chinese government has long reached its verdict on the June 4th incidents” even this seemingly clear position is faded out of the public discourse. In the days leading up to June 4th activists, intellectuals and netizens once again talked about the lack of open discussion and critical examination of the past. As one netizen put it: “In China everything has been wrapped in a cloak of silence for so long that we have almost lost the ability to speak. The problem is, how can we move on?”
But the area of silence seems to be expanding. On May 14th the Work Group for Education of the Party Committee and the Department of Education of Fujian province issued a new set of regulations concerning “professional ethics” of higher education teachers with the intent to effectively prevent “the dissemination of misguided or erroneous speech against the general and specific policies of the Party, the basic theory of the Party, the law and the constitution of the country during the course of teaching, which leads to a harmful effect on conveying correct ideas and political ideals to the students”.
In his excellent rebuttal judicial expert professor He Weifang not only points out how these regulations conflict with the Chinese law and the constitution but also analyzes the possible impact on creativity and the academic discourse.
Strong words still won’t make it a “law”
Originally published in Caijing Magazine, May 25th 2010
Let us first have a look at these passages of the constitution and the law:
Constitution of the Peoples Republic of China, Article 35: Citizens of the People’s Republic of China enjoy freedom of speech, of the press, of assembly, of association, of procession and of demonstration. Article 47: Citizens of the People’s Republic of China have the freedom to engage in scientific research, literary and artistic creation and other cultural pursuits. The state encourages and assists creative endeavors conducive to the interests of the people made by citizens engaged in education, science, technology, literature, art and other cultural work.
Legislation Law of the Peoples Republic of China, Article 8: The following affairs shall only be governed by law: … (5) mandatory measures and penalties involving deprivation of citizens of their political rights or restriction of the freedom of their person.
Higher Education Law of the Peoples Republic of China, Article 10: The state safeguards the freedom of scientific research, literary and artistic creations and other cultural activities in institutions of higher learning according to law. Scientific research, literary and artistic creations and other cultural activities in institutions of higher learning should abide by law.
Education Law of the People’s Republic of China, Article 28: Schools and other institutions of education shall exercise the following rights: … (8) to brook no unlawful interference in their educational and teaching activities by any organization or individual.
The reason why I emphasize these passages form the constitution and the law and cite them individually has to do with the “Regulations concerning the strengthening and improvement of professional ethics in higher education teaching personal in Fujian Province” ((The Chinese word 意见literally means “suggestion”, but since in the political context these “suggestions” tend to have a rather prescriptive character (you can’t really say “Dear higher level authority, thanks for your suggestions but I’ll just do it my way…”) I translated it as regulations. Especially since a series of workshops are held (some examples) on how to properly implement these “suggestions”.)) which were jointly released by the Work Group for education of the Provincial Party Committee and the regional Department of Education. Some “relevant people in the education circles” in Fujian refuted criticism [directed against these regulations] by stating that “they merely contain specifications of particular passages in the ‘Higher Education Law’ and the ‘Teachers Law’”. The strange thing is that these “relevant people” did not actually say what parts of the law they “specified”. And although every execution of government power [in order to modify existing laws] needs to be explicitly authorized, it was impossible to find out under whose authority the two organs introduced these “regulations”.
In this document, which sounds like a law but is not a law, “the dissemination of misguided or erroneous speech against the general and specific policies of the Party, the basic theory of the Party, the law and the constitution of the country during the course of teaching, which leads to a harmful effect on conveying correct ideas and political ideals to the students” is determined as one of the 10 major issues concerning teacher’s professional ethics. It also states that teachers who bring about serious consequences and negative influences [by this kind of behavior] should have their teaching qualification revoked and their employment terminated. Without a doubt these [regulations] pose severe restrictions on the rights granted to teachers by the constitution and the law and a further discussion about its legitimacy is needed.
In regard to the actual implications we have to ask, what exactly does “the dissemination of misguided or erroneous speech against the general and specific policies of the Party, the basic theory of the Party, the law and the constitution of the country during the course of teaching” refer to? If this phrase isn’t further specified, it will inevitably lead to unbearable vagueness and general angst in the process of its practical application. The Chinese constitution states that citizens enjoy freedom of speech, the freedom to engage in scientific research, literary and artistic creation and other cultural pursuits. While this kind of freedom is admittedly restricted by the law it also can only be restricted by the law.
The crucial thing that we have to comprehend about this kind of freedom is that it means we are not confined to existing doctrines, but are able to engage in active discussions about traditional viewpoints, in order to overcome the old and achieve something new in our theoretic discourse. During the Cultural Revolution the specific policy of the Party was “Class struggle is our guiding principle”. According to this [principle] Deng Xiaoping’s policy and path of reform and opening signified a departure from and rebellion against the accepted belief. Just imagine, if the fundamental principle of the “continuous revolution under the dictatorship of the proletariat” could not have been overturned, could we ever have achieved the economic progress and an overall relaxation of our society that we see today?
It is even more baffling and ridiculous that these “regulations” actually confine the law itself to the forbidden area [of discourse] by prohibiting teachers to “disseminate misguided or erroneous speech that is directed against the law and the regulations”. As someone who teaches law I am simply terrified by this. In my classroom I have in the past explicitly told students that our State Compensation Law should actually be called a “State Non-Compensation Law” and that article 306 of the Criminal Law poses a serious threat to lawyers exercising their profession. In 2003 I and some fellow scholars publicly criticized the “Measures for Custody and Repatriation of Vagrants and Beggars” as an abhorrent practice. If you follow the reasoning of the provincial Work Group for Education and the Department of Education I fear my behavior could all be interpreted as the “dissemination of misguided or erroneous speech” and even cost me my job. Just imagine how much a regulation like this can hinder and imperil the spirit of critical thinking!
In our modern society universities should be a hotbed for thought and innovation, a battlefield to cross swords, a place to talk and argue. If the aim is to foster creativity and innovation then you cannot just ban [acts of] expression under the label of “misguided or erroneous speech”. If everyone in the academic discourse stops before each statement to check for possible mistakes and [make sure they adhere to] the correct standards, this can only have the effect of stifling creativity and innovation. Isn’t the reason why the discourse of a new generation is considered innovative exactly because it breaches the boundaries of existing doctrines? You shouldn’t mistakenly think that promoting new ideas is only a privilege of the nation’s leaders. As a matter of fact it is rather teachers who, as a fundamental drive of the academic world, have to undertake this difficult mission. Because, on the basis of studying existing theories, their job is to bring forward new ideas, explanations and proofs. Moreover, the critical questioning of existing theories and doctrines and the exploration of new ideas has to happen in the course of their teaching. This in not only because education should always reflect the latest academic achievements, but also because students have to develop their critical thinking through exploratory work together with their teacher.
During his lifetime Qian Xuesen often sighed at the inability of Chinese Universities to foster talent ((The question that Qian Xuesen repeatedly posed and is also said to have been his last words was: “Why do our schools always fail to nurture outstanding talents?”. Read more about what became known as the “Qian Xuesen Question” here, here and here)) But if we do as those two departments in Fuzhou suggest and force all teachers and their students to crawl at the feet of current theories and doctrines and this kind of education still brings out real talents, that would be no less than a miracle. ((Somehow reminded me of these recent articles…))
The reason why I cited the Legislation Law at the beginning of this article was to question if the two departments actually have the authority to draw up regulations that concern the political rights of citizens. These “regulations”, which were put forward under the banner of strict ethical standards for teachers, impose restrictions on the freedom of speech, a basic political right, and thus override the Constitution. Therefore they clearly violate the Legislation Law as it stipulates that in these cases specific laws need to be introduced. But this also means that only the National People’s Congress or other standing committees can make adjustments to the law. Even regional legislative organs can not be allowed to encroach on this [principle]. Needless to say that this also applies to organs on an even lower level, like a work group for education of the Provincial Party Committee or a Department of Education.
Finally I also observed that the two departments that drafted these “regulations” even followed due process and issued a “notification concerning the circulation of the ‘regulations’”. They demanded that each school should “establish and improve supervision mechanisms” by “urging students, parents and the public to carry out supervision and evaluation of the professional ethics of teachers in higher education.” Furthermore “every school should offer a hotline for complaints about teacher’s ethics to the public, put up complaint boxes or establish other ways to gather public feedback. ‘Supervision personal for teacher’s professional ethics’ should be invited to prevent and reduce behavior that violates the professional code of conduct for teachers.”
Seeing these kinds of methods – encouraging students to report on their teachers and even inviting so-called “supervision personal for teacher’s professional ethics” – I suddenly think of “concealing” and “hiding”, and I bemoan that these old practices of the Cultural Revolution still don’t cease to exist.
While the personal consequences for Yuan Tengfei have yet to be seen it is known that some of his lectures and public readings were cancelled, videos of his classes have wildly been deleted. Although he wasn’t thrown into prison or sent to reeducation through labor and instead got away with a mild warning by “the relevant departments”, something his opponents praised as a testimony to how open the Chinese society has become (although they didn’t sound entirely happy about that). At the same time there seems to be a chilling breeze in academic circles and an overall tightening. He Weifang makes a very good point by stressing that you shouldn’t lightly give up the freedom already achieved and basically invite a new Cultural Revolution in disguise.
Will China even face its historical burdens and openly discuss all aspects of its past, can these collective taboos be broken? Is open criticism a.k.a. freedom of speech important for creativity, innovation and overall societal development and democratization? Was Yuan Tengfei right when he said: “This country can only produce autocracies. If Chinese haven’t shouted ‘Ten thousand years’ for a while they feel hollow and meaningless and cannot go on.”