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Abstract
Based on the cases of Liu Xiaobo and Xu Zhiyong, this article reviews the Court judgments and discussions about the criminal charges of “inciting subversion of state power” and “disrupting public order” used against Liu Xiaobo and Xu Zhiyong respectively. Through a review of the discourses of Chinese legal scholars surrounding the two cases, we focus on the conflicting arguments regarding the Chinese Constitution and the Constitutional right to freedom of expression. This article concludes with an analysis of the political meaning of the two cases by revisiting the debate about the implementation of a Constitutional review and by reflecting upon the political contention between the government’s recent re-ideologisation of the Constitution and the growing calls of Chinese citizens who advocate Constitutionalism as a proxy for political reform.
摘要：围绕刘晓波和许志永这两个案件的法院判决、律师辩论、及相关讨论，本文着重讨论了关于适用宪法规定的表达自由权的不同辩论。本文认为这些辩论反映了官方宪政意识形态论和民间期冀通过宪政进行政治改革的呼声之间持续不断的政治论争。
Notes
1. Liu Xiaobo First-Instance Verdict, Beijing Municipal No. 1 Intermediate People’s Court, Criminal Division, First-Instance Verdict No. 3901, 25 December 2009; Liu Xiaobo represents one case among many human rights defenders prosecuted for “inciting subversion of state power” who received long prison sentences, including inter alia Tan Zuoren (5 years), Liu Xianbin (10 years), Chen Wei (9 years), Chen Xi (10 years), Li Tie (10 years), Zhu Yufu (7 years) in 2010, Cao Haibo (8 years) in 2012 and Liu Benqi (3 years) in 2014. According to the Supreme People’s Court’s Verdict database, several cases involving Falun Gong were also prosecuted under this charge. For cases before 2010, see, e.g., Guo (Citation2008).
2. Criminal Law, Article 105(2).
3. Liu Xiaobo First-Instance Verdict, Beijing Municipal No. 1 Intermediate People’s Court, Criminal Division, First-Instance Verdict No. 3901, 25 December 2009. English translations of Liu Xiaobo’s First-Instance Verdict cited in this article are by Human Rights in China, retrieved from http://www.hrichina.org/en/content/3209
4. These six articles include: “Can It Be that the Chinese People Deserve Only ‘Party-Led Democracy’?”, “Further Questions about Child Slavery in China’s Kilns”, “The Dictatorial Patriotism of the Communist Party of China”, “To Change the Regime by Changing Society”, “The Multiple Faces of the Dictatorship by the Communist Party of China” and “The Negative Effects of the Rise of Dictatorship on World Democratisation”.
5. The Court Verdict cites websites such as Observe China (guancha) and BBC Chinese Net among others.
6. For example, when the CCP regime is described as a “dictatorship” (ducai).
7. The official interpretations of the meanings of “rumour”, “defamation”, “libel” and “slander” have been very much contested in recent years since they became constitutive elements of the prosecution to “justify” limits on the right to freedom of expression. For a more detailed discussion, see Yan (Citation2011).
8. For example, it cites Charter 08: “abolish the special privilege of one Party to monopolise power” and “aim ultimately at a federation of democratic communities of China”. It is important to bear in mind that those statements were taken out of context, as if it was possible to interpret their meaning without considering the overall argument of the author. On other occasions, Liu Xiaobo also wrote passages about the importance of a gradual, peaceful, orderly approach to reform (an argument Liu Xiaobo articulated in “My Self-defence”; see Link, Martin-Liao, & Liu, 2012, p. 316). Despite this fact, as his lawyers argued in the first instance of his Court trial, the prosecutors Zhang Rongge and Pan Xueqing extrapolated Liu Xiaobo's thought from 330 characters, without taking into account the five million characters that constitute his work. This quantitative argument of the defence responds to the prosecution's efforts at quantifying the “damage” or “social harm” of his articles by citing as evidence the number of page views each article received on the Internet as if this was reliable “forensic data” to measure the potential to “incite subversion”.
9. Liu Xiaobo First-Instance Verdict, Beijing Municipal No. 1 Intermediate People’s Court, Criminal Division, First-Instance Verdict No. 3901, 25 December 2009.
10. Xu Zhiyong’s First-Instance Verdict, Beijing Municipal No. 1 Intermediate People’s Court, Criminal Division, First-Instance Verdict No. 5268 (2013), 26 January 2014. English translation by a group of volunteers; retrieved from http://www.hrichina.org/en/citizens-square/xu-zhiyongs-first-instance-verdict-english-translation
11. Xu Zhiyong Closing Statement to the First-Instance Court, 22 January 2014. English translation by volunteers for China Change; retrieved from http://chinachange.org/2014/01/23/for-freedom-justice-and-love-my-closing-statement-to-the-court/
12. Xu Zhiyong’s First-Instance Verdict, Beijing Municipal No. 1 Intermediate People’s Court, Criminal Division, First-Instance Verdict No. 5268 (2013), 26 January 2014.
13. In this article, we consider Freedom of Expression and Freedom of Speech as interchangeable in the Chinese legal context, since distinctions between the two do not matter as much as in other jurisdictions.
14. Defence Statement of the First Instance, Beijing Municipal No. 1 Intermediate People’s Court, Criminal Justice Court No. 11. Translation by HRiC; retrieved from http://www.hrichina.org/en/content/3206
15. This statistic is calculated based on the defence statement in Chinese. In the first-instance defence statement, Freedom of Speech (yanlun ziyou) is mentioned 11 times, Freedom of Expression (biaoda ziyou) once, and Constitution (xianfa) 13 times. In the appeal defence statement, much shorter than the first-instance defence statement, Freedom of Expression (biaoda ziyou) is mentioned 8 times.
16. Defence Statement of the First Instance, Beijing Municipal No. 1 Intermediate People’s Court, Criminal Justice Court No. 11.
17. Liu Xiaobo First-Instance Verdict, Beijing Municipal No. 1 Intermediate People’s Court, Criminal Division, First-Instance Verdict No. 3901, 25 December 2009.
18. ibid.
19. See BBC, Zhang Qingfang Talks about Xu Zhiyong First-Instance Verdict, 26 January 2014. Audio file retrieved from http://www.bbc.co.uk/zhongwen/simp/multimedia/2014/01/140126_aud_china_xu_verdict.shtml. A day after the trial, Ai Xiaoming interviewed Zhang Qingfang, who described the trial as the “monologue” of “one-Party’s performance” where “the prosecutor takes a deer to court and says it is a horse, and asks the court to confirm it is a horse”. See Ai Xiaoming blog; retrieved from http://aixiaomingstudio.blogspot.fi/2014/02/blog-post.html?spref=tw
20. Xu in fact did not finish reading his closing statement, which was abruptly terminated by the trial panel after he started to present it during the trial.
21. Xu Zhiyong Closing Statement to the First Instance Court, 22 January 2014.
22. Appeal Defence Statement for Dr Xu Zhiyong’s Second-Instance Trial by Liu Shuqing, 11 April 2014. Retrieved from http://xgmyd.com/archives/1486
23. ibid.
24. In response to petitions submitted to the UN Working Group on Arbitrary Detention on behalf of Liu Xiaobo and Liu Xia by the NGO Freedom Now, the Chinese government replied on 13 April 2011 that free speech is limited by articles 51 and 54 of the PRC Constitution, in line with article 19, paragraph 3, of ICCPR, arguing that this justifies restrictions on freedom of expression.
25. Since Liu Xiaobo's charge falls under Endangering State Security crimes, his lawyers also cited Principle 6 of Johannesburg Principles on National Security, Freedom of Expression and Access to Information (updated and renamed as Tshwane principles in June 2013) stating that “expression may be punished as a threat to national security only if a government can demonstrate that: (a) the expression is intended to incite imminent violence; (b) it is likely to incite such violence; and (c) there is a direct and immediate connection between the expression and the likelihood or occurrence of such violence”.
26. Schenck v United States, 249 U.S. 47 (1919).
27. See Teng Biao, “Open Proposal on Judicial Review of the Law on Assemblies, Processions and Demonstrations” (dui jihui youxing shiweifa tiqi weixian shencha de gongkai jianyishu); retrieved from http://blog.boxun.com/hero/201401/tengb/1_1.shtml
28. “Professor Jiang Ping Comments on Liu Xiaobo Case: A Sheer Punishment because of Speech”, Canyu, 23 February 2010; retrieved from http://canyu.org/n13503c6.aspx
29. “Cui Weiping Telephoned for Opinion on Liu Xiaobo Case (2)”, China Perspective; retrieved from http://www.chinainperspective.com/ArtShow.aspx?AID=4264
30. “Minitrue: Silencing Xu Zhiyong”, China Digital Times; retrieved from http://chinadigitaltimes.net/2014/01/minitrue-silencing-xu-zhiyong
31. “Beijing Court Upholds Liu Xiaobo's Initial Sentence”, Xinhua News, 11 February 2010; retrieved from http://news.xinhuanet.com/english2010/china/2010-02/11/c_13172103.htm
32. Chen Weidong played a key role in drafting the 1997 Criminal Procedure Law. While this article does not address the procedural issues in each case, numerous procedural violations occurred in both cases.
33. Zhao Bingzhi is President of the Criminal Law Scientific Research Institute at Beijing Normal University and of the China Law Society’s Criminal Law Research Committee.
34. Xinhua News, 11 February 2010.
35. Suowei “yinyanhuozui” shi dui Liu Xiaobo an panjue de wudu—xingfaxue zhuanjia tan Liu Xiaobo an yu yanlunziyou, Xinhua News; retrieved from http://news.xinhuanet.com/world/2010-10/25/c_12698346.htm. English translation retrieved from http://www.cecc.gov/so-called-punishment-because-of-speech-is-a-misreading-of-the-judgment-in-the-liu-xiaobo-case
36. See “Tang Xuhui: Ye tan Xu Zhiyong an yu xianfa”, Guancha, 18 February 2014; retrieved from http://www.guancha.cn/TangXuHui/2014_02_18_206949.shtml
37. Jiang Shigong is a Professor of Jurisprudence at Peking University and a translator of Carl Schmitt. His discussions about judicial review and judicial judgment are based on the Qi Yuling case about the right to education. See Jiang (Citation2003). For a discussion of the ideological dimension of his work, see Holbig (Citation2014).
38. See Guancha, 18 February 2014.
39. Chinese Constitution, Article 35; ICCPR, Article 19.
40. General Comment No. 34 of the UN Human Rights Committee, Article 11.
41. Ib, Article 21.
42. They include three official agencies (police, procuratorate and court). According to the Constitution, they are supposed to mutually “restrain” and “supervise” one another, but in practice they more often “coordinate” with one another to enforce orders from Party leaders. Mike McConville also noted in his book Criminal Justice in China: An Empirical Inquiry (2011) the endurance of a Mao-era view of the criminal process in which the Courts, police and prosecutors work together like “three workshops in the same factory”. The most powerful of the three is the police, who “hold the hilt” (dao bazi), to use a Mao-era metaphor.
43. For example, Yuen (Citation2013); Zhu (Citation2013).
44. See full text in Chinese at http://china.findlaw.cn/fagui/p_1/135999.html
45. Zuigao renmin fayuan guanyu renmin fayuan zhizuo falǜ wenshu ruhe yinyong falǜ guifanxing wenjian de pifu (1986). The text in Chinese is available at http://www.law-lib.com/Law/law_view.asp?id=3936
46. Zuigao renmin fayuan guanyu yi qinfan xingmingquan de shouduan qinfan xianfa baohu de gongmin shoujiaoyu de jiben quanli shifou ying chengdan minshi zeren de pifu), Fashi 25 hao Sifa Jieshi, [No. 25 [2001] of the Interpretations of the Supreme People’s Court of the People’s Republic of China], 24 July 2001, effective 13 August 2001. Retrieved from http://www.law-lib.com/law/law_view.asp?id=15994
47. On 20 March 2003, Sun Zhigang, a young university graduate, was detained for not carrying his temporary living permit, and was later beaten to death in the detention centre. After this case was reported by Nanfang zhoumo, a leading newspaper in China, it aroused nationwide discussion about the abolition of the system of custody and repatriation.
48. Xu Zhiyong blog, 9 November 2012, Sun Zhigang zhi si−gongmin jianyi; retrieved from http://xuzhiyong2012.blogspot.ca/2012/11/blog-post_6799.html
49. See Beijingshi gaoji renmin fayuan guanyu yinfa <Beijingshi gaoji renmin fayuan guanyu guifan panjueshu yuanyin falǜ deng youguan wenti de zhidao yijian> de tongzhi, Jinggaofa [2005] No. 341, 14 December 2005; retrieved from http://code.fabao365.com/law_104716.html
50. Notice of the Supreme People’s Court, 18 December 2008. This notice stated that the previous “Reply” regarding Qi Yuling, a kind of judicial interpretation, issued by the Supreme People’s Court, was considered “no longer applicable” and thus “abolished”; see also Zhu (Citation2013, p. 4).
51. Charter 08; English translation retrieved from http://www.foreignpolicy.com/articles/2010/10/08/charter_08
52. “Official Data Show State Security Arrests, Prosecutions in China Remained at Historical Levels in 2010”, Dui Hua Foundation, 12 March 2011; retrieved from http://duihua.org/wp/?page_id=1812
53. See English translation; retrieved from http://www.thechinastory.org/2012/09/the-ten-grave-problems-facing-china
54. See English translation; retrieved from https://chinacopyrightandmedia.wordpress.com/2013/09/26/how-to-implement-the-1982-constitution-an-expert-group-talk
55. For an in-depth review and analysis of the Constitutional debate in 2013, see Creemers (Citation2014).
56. See English translation; retrieved from http://www.chinafile.com/document-9-chinafile-translation
57. ibid.
60. For further discussion about the crime of subverting state power, see Teng (Citation2012b, pp. 271–288).
61. For example, in September 2014, Ilham Tohti, a Uyghur scholar and university professor, was sentenced to life imprisonment with confiscation of all his assets for “Separatism”. The main evidence for his conviction was his articles and speeches, which relate to freedom of expression, although Ilham Tohti’s lawyer did not defend the case by referring to Constitutional rights. In 2014, many others, including influential scholars Xu Youyu, Guo Yushan and Hao Jian and lawyer Pu Zhiqiang, were detained for the crime of “disrupting public order”. Even if there are other legal reasons for their detention, it is rational to presume that their cases also relate to freedom of expression, since most of these people have publicly expressed critical opinions about the political system or political issues in China – e.g. organising discussions of the 1989 Tian’anmen Incident, supporting the 2014 Hong Kong students’ “Occupy Central” protest, fighting for real universal suffrage in the election of the Hong Kong Chief Executive in 2017, and so on.
62. See Weibo post; retrieved from http://www.weibo.com/1110550747/zCj35hMPQ#_rnd1424645590950