“Punishment fits the crime”: China’s law expert’s defense of jailing the Nobel Peace Prize winner, and our thoughts (Part 1)

November 3, 2010MeganNo Comments,

Liu Xiaobo, found guilty of inciting subversion of state power, was sentenced to eleven years’ improsonment and two years’ deprivation of political rights on 25 December 2009. Ten months later, the Norwegian Nobel Committee awarded the Nobel Peace Prize this year to Liu. After initially keeping mum about the news, the Chinese state-controlled media decide to stop being passive and open up: It is now fervently spining its side of the story.  Here is a literal translation of excerpts of a news article run by the official Xinhua news agency about Liu Xiaobo’s case. Let’s see how this article justifies criminalization of Liu.

(In the next post, we will give our own thoughts on Professor Gao’s argument. )

The so-called “criminalization of free speech” is a misinterpretation of verdict against Liu Xiaobo

- Experts on Criminal Law and free speech case of Liu Xiaobo

(The original Chinese-language article is  here. )

Foreign media said Liu Xiaobo was sentenced “because of speech”, seeming to believe that Liu’s words and deeds are protected by freedom of speech, and that the court should not pass on conviction or sentence. Does this argument make any sense? What is the line betweem inciting subversion of state power and the freedom of speech? With these questions, the reporter from Xinhua visited the renowned expert on criminal law Professor Gao Mingxuan.

Professor Gao Mingxuan holds that before discussing whether the conduct of Liu Xiaobo constitutes a crime, it is imperative to know what Liu did. Judging by what the Beijing First Intermediate People’s Court and the Beijing Municipal Higher People’s Court recognized as the facts, Liu Xiaobo’s behavior consists of two: First, from October 2005 to August 2007, Liu wrote and published multiple articles, including “Communist China’s authoritarian patriotism,” “Change the society by changing the regime,” and “Negative impact of the rise of dictatorship on world’s democratization”on Web sites such as China Observer and BBC China, attempting to incite subversion of the current regime. Second, from September to December 2008, Liu, together with others, wrote a paper titled “Charter 08,” proposing “abolition of one-party monopoly of power privilege”, “founding a federated republic” and a number of provocative ideas; after collecting signatures of three hundred people, he distributed “Charter 08″ and signatures to overseas Web sites and published them in “Democratic China” and “Independent Chinese PEN Center” and the like. These two acts are facts that Liu himself confessed to in court. Nevertheless, Liu argued that he did not incite subversion, and that he simply made some critical remarks.

What needs discussing is, is the content of articles by Liu just general “critical remarks,” or with the criminal nature of subversion of state power? Professor Gao thinks that judging by the literal meaning of words from Liu Xiaobo, you can clearly tell its intent and purpose of overthrowing the existing political regime and social system. For example, Liu said that “China’s communist dictatorship brings calamity to the country and the people”, demanded “regime change” and “a federated republic,” and so on, which blatantly conveyed the message of subversion. In another example, Liu said: “We would rather pin our hope of the emergence of a free China on continuous expansion of ‘new forces’ among the people than on the ‘New Deal’ of the rulers.” This fully exposed his purpose of instigating the so-called “new force” to overthrow the regime. These remarks have exceeded the scope of general critical comments, and have posed real harm to the society.

Here, the reporter still has one more question to be solved: Is it that whoever made inflammatory statements that are not conducive to stability of the current regime should be corrected by the Penal Code? If so, will it affect citizens’ exercising right of free speech? Gao said that criminal law in any country has a precautionary principle to ensure that punishment fits the crime. Use of the criminal law to combat and stop speech threatening national security speech is conditional. China’s Criminal Law is no exception.

The second paragraph of Article 105 of the Criminal Law of the People’s Republic of China  stipulates that, the crime of inciting subversion of state power is constituted on two premises:

First, the act must be based on rumors, slander or other forms. Liu’s conduct is precisely rumors, libel, slander and other forms of extreme manifestations. For example, Liu Xiaobo in “Charter 08″ wrote, “the establishment in 1949 of the ‘New China’ in the name of ‘the People’s Republic’, is in essence, ‘a Party that rules all’.” He went on “China remains the only large world power to still retain an authoritarian system that so infringes on human rights, resulting in continuous human rights disasters and social crisis.” These are clearly rumors, libel and slander.

Second, the act must have a serious social harm. Precedents tells us that not all rumors, slander as a means of inciting subversion of state power needs penalizing, and the criterion as to determine guilty or not guilty is if it does some kind of serious social harm. This is the line between the general inflammatory speech and the crime of inciting subversion of state power. Correctly grasping the “real line” will address the question here.

As far as Liu’s case is concerned, the following factors are worth noting: First, Liu took advantage of the Internet, whose characteristics are fast transmission, a wide scope of influence, huge social impact, great publicity, and has for a long time systematically published a series of articles on the Internet, brazenly discrediting and defaming our current regime. Its intent to overthrow the existing regime is obvious. Second, Liu organized or induce others to participate in the signature, resulting in the inflammatory statement being widely accessed, referenced, browsed. Overseas anti-China forces used Liu’s words and deeds to bash our country. It had practically serious adverse effects and consequences. Moreover, Liu has long been engaging in subversive activities. In January 1991, he was found guilty of counter-revolutionary propaganda, but was spared criminal punishment (he burst into tears and pleaded guilty in court, so the court showed clemency.) From September 1996 he was sent to a labor education camp for three years because of disturbing the social order. These three factors combined reflect the behavior of Liu Xiaobo, a serious social harm and danger, (considering the likelihood of his re-offending) is so astounding that penalty is a must. At the same time, Liu has written and published inflammatory articles on the Internet, and collected signatures. It is no longer a matter of speech; rather, it is an act prohibited by the Criminal Law. It is thus clear that what western media called “criminalization of speech” is a presumptuous comment made without understanding Liu’s case.

Professor Gao Mingxuan also told reporters that criminal acts in the form of speech is regulated by laws of almost all countries in the world. For example, the “United States Code,” Article 115, section 2383 and 2385 provide that it is a crime to incite, assist, facilitate or carry out insurgents or rebels against the authority or laws of the United States; intentionally or willfully advocate, instigate, persuade, or preach use of force, violence or assassination of government officials in order to overthrow or destroy the federal government or any state, territorial, regional or occupational governments.

[Cathy G.: He listed a number of national laws that have a certain article prohibiting sedition. Due to limited space, I've left out this part.]

Professor Gao added that in Western countries, cases of penalizing sedition have occurred. In the last century, the United States saw cases in which Schenck distributed anti-conscription leaflets, inciting troops against military service; Abrams printed and posted leaflets opposing U.S. sending troops, calling for a strike among workers in arms and weapons industry; Leon Mack encouraged the crowd against the police. In the Unites States, making statements that intimidate others and even national leaders will be prosecuted. According to the British newspaper The Independent, a 28-year-old man wrote and posted the poem, The Sniper on a web page, describing a gunman shooting and killing a “tyrant,” alluding to the U.S. president. Even though President Obama is never mentioned in the poem, he was charged with a crime. The case will be tried on November 2 at the Kentucky District Court. The defendant faces up to five years of imprisonment and a fine of $165,000. [Cathy G: I did find the news article online. ] Clearly, freedom of speech in the United States is also predicated on maintaining social stability and their existing system. There are similar cases in other countries…(examples from Canada, Germany, France, Denmark and Austria.)

In addition, due to differences in cultural background, social living standars and legal systems, countries hold different standards in criminal trials of identifying crimes in words and deeds. Anglo-American countries often use “THE CLEAR AND PRESENT DANGER TEST” as a standard. This principle stems from the U.S. Justice Holmes’ opinion in Schenck v. United States, “The character of every act depends on the circumstances. Even the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” Interestingly, the case of “falsely shouting fire in a theater” that the U.S. Justice mentioned, if causing no casualties or seriously public order disturbance, would be at most a public nuisance in the eyes of Chinese people, but in the United States it constitutes a criminal offense.

Finally, Professor Gao believes that the fact that the U.S. Court sets out a specific standard in cases of abridging the freedom of speech is instructive to us: First, freedom of speech is a right that is subject to restriction when measured against its consequences; second, the standard of determining whether to limit a citizen’s freedom of speech is based on the nature and degree of the danger brought by the speech in a certain circumstance to the social order. Accordingly, the state must prohibit inflammatory remarks that are substantial and can easily lead to social unrest. Even if we use the U.S. standards to evaluate Liu’s case, the court’s decision would not be questionable.

[Cathy G.: In the next part, I will bring our own thoughts on Professor Gao's defense.]

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