Some foreign media misunderstand Liu Xiaobo's case: criminal law expert
2010/11/05

BEIJING, Nov. 5 (Xinhua) -- It is a misunderstanding when some foreign media alleged Liu Xiaobo was sentenced to jail for simply "making remarks," as Liu has gone beyond the scope of free speech and was convicted of the crime of inciting subversion of state power, a noted Chinese criminal law expert has said.

"We shall know what Liu has done before discussing whether his deeds constitute a crime or not," said Prof. Gao Mingxuan in a recent report of Legal Daily, a Beijing-based national newspaper.

Liu published a series of articles including "Change the regime by changing the society" on the Internet between October 2005 and August 2007, inciting time after time the subversion of state power, according to documents from the Beijing No. 1 Intermediate People's Court and the Beijing Municipal Higher People's Court.

Liu, along with some other people, wrote articles proposing " elimination of the privilege of one party to monopolize power" and "setting up a federal republic in China" between September and December, 2008. He organized and induced others to sign in support of his articles and sent them to overseas websites for publication.

Liu was sentenced to 11 years in prison at the end of last year by the intermediate court, with his political rights deprived for two years. His appeal at the higher court was rejected in February this year.

At the court, Liu admitted to writing and publishing the articles, but defended himself saying he was making some comments on the nature of criticism and was not instigating subversion of state power.

However, Prof. Gao said Liu's motive to subvert state power and overthrow the social system was straightforward and clear according to the literal meaning of his articles.

Liu said "the dictatorship of the Communist Party of Chin (CPC) brings calamity to the country and people," and wanted to "change the regime" and "set up a federal republic in China," which was obviously inciting people to subvert the legitimate state power of people's democratic dictatorship that is under the CPC's leadership and overthrow the socialist system.

Liu also said "as for the coming of a free China, we would rather pin our hope on the growth on 'new powers' among the people than on the 'new policy' by the rulers."

It showed he was aiming to instigate so-called "new powers" to overthrow the current regime.

The mentioned remarks by Liu went beyond the scope of free speech and were harmful to the society, Prof. Gao said.

How to distinguish between agitation activities aimed at subverting state power and citizens' freedom of speech? Prof. Gao said there were two basic conditions constituting the crime of "inciting subversion of state power" according to China's Criminal Law and past judicial practices.

The first condition is that the act is carried out through rumor, slander or other forms of the kind. Liu's act was "an extreme form of slander," Gao said.

Liu said in a published article that New China, founded in 1949, was "just a nominal people's republic" and was "under the dictatorship the CPC."

Liu's article also said that among all big countries of today, only China was still "in a political ecology of bureaucratic authoritarianism, which resulted in a series of human rights disasters and social crises."

"What he said is apparently a slander," Gao said.

Gao said the second condition is that the act produced serious social harm.

Past judicial practices show that not all acts of instigating subversion of state power by means of slander are subject to criminal penalty, and "the criterion is whether an act brings about social damage nor not."

The criterion is a dividing line between incitation of subversion of state power and freedom of speech.

Gao said Liu's intention to overthrow the government was "obvious."

He said Liu, during quite a long time and in a systematic way, used the Internet to publish a series of articles to vilify China's state power.

Also, Liu's act produced serious consequences, Gao said, as Liu organized and induced others to sign their names on his articles in order to widely spread his provocative speeches, which was then used by overseas anti-China forces to launch attacks against China.

Gao said Liu had "long been engaged in subversive activities." He was convicted of the crime of "counter revolutionary propaganda and incitement" in January 1991, but was given leniency by the court and exempted from criminal penalty after he burst into tears and pleaded guilty.

In September 1996, Liu was sentenced to "reeducation though labor" for three years for disruption of social order.

"All these show that Liu's acts produce serious social harm and he might possibly commit crimes again, so he must be penalized," Gao said.

Moreover, Liu published his provocative articles on the Internet and collected signatures, which was "not merely an issue of speech but an act banned by the Criminal Law," Gao said.

He said some western media made a comment without a complete understanding of Liu's case when they claimed Liu was punished simply for his speeches.

Gao said crimes in the form of utterance could be seen in laws of almost all the countries around the world as well as relevant international conventions, and that "freedom of speech" should be subject to some limits was prevailing among all countries.

For example, section 2383 and 2385 of the 115 chapter of the United States Code stipulates that "whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof," and "whoever knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States or the government of any State, Territory, District or Possession thereof, or the government of any political subdivision therein, by force or violence, or by the assassination of any officer of any such government" shall be punished.

The Britain's Treason Act 1351 has illegalized practice and seditious statements of conspiracies to disenthrone the Queen.

Section 90b of the Criminal Code of Germany has provisions on crimes of anti-constitutional disparagement of constitutional organs.

Criminal law in Italy has provisions on crimes of insulting political, administrative or judicial agencies.

In Canada, "every one who speaks seditious words, publishes a seditious libel, or is a party to a seditious conspiracy, is guilty of an indictable offence and liable to imprisonment" according to section 61 of the Criminal Code.

Laws in Australia criminalizes advocacy and sedition to overthrow the constitution or the government.

Section 505 of Singapore's Penal Code stipulates that statements conducing public mischief such as offences "against the State or against the public tranquility" are crimes.

Article 20 of the International Covenant on Civil and Political Rights stipulates that "any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law."

Article 13 of the American Convention on Human Rights provides that the exercise of the right to freedom of thought and expression shall be subject to liability established by law to ensure "the protection of national security, public order, or public health or morals."

In the Council of Europe Convention on the Prevention of Terrorism, Article 5 says "each Party shall adopt such measures as may be necessary to establish public provocation to commit a terrorist offence,...when committed unlawfully and intentionally, as a criminal offence under its domestic law."

There are a lot of such cases in the west where citizens were sued for incitement, according to Prof. Gao.

In the 20th century, the United States has dealt with several such cases, including Schenk mailing anti-enlistment leaflets and inciting servicemen's insubordination; Abrams printing and posting fliers against the United States' decision to send troops, calling on ammunition factory workers to go on strike; and Leon Mack inciting opposition against police.

In the United States, people could be suspected of crime for their speech that might threaten other citizens or state leaders. According to British newspaper Independent, a 28-year-old American man posted a poem Sniper on the website, narrating the scene of shooting a "tyrant," with innuendo of the assassination against the American president. Though President Obama did not appear anywhere in the poem, the writer was still sued for committing a crime, which is subject to a maximum five-year imprisonment and a fine of 165,000 U.S. dollars.

Therefore, the American version of freedom of speech is also based on safeguarding its current social system and stability.

Similar cases took place in other countries. For example, in 2005, the Canadian federal court determined that Zundel, a German, advocated subversion of the government and decomposition of diversified society, which had already posed a threat to national security, hence dispelling Zundel from the country.

In 2001, a German band called Landser was convicted of crime for circulating music online with racist indication.

In 2007, a German court convicted Zundel of crime for incitement of racial hatred and Nazi holocaust denial.

In 2003, France announced a website operator guilty for editing webpages that incite racial hatred.

In 2007, Frenchman Gollnisch was convicted of crime for publicly questioning the toll and causes of deaths in Nazi holocaust.

In 2004, a man in Denmark who posted words online to spread hatred to Jewish people was convicted.

In 2006, British historian, David Irving was convicted of crime by a Austrian court for dismissing Nazi holocaust.

Similar cases also occurred at international justice institutions.

For instance, International Criminal Tribunal for Rwanda announced Belgian journalist Georges Ruggiu guilty for stoking racial hatred and violence through broadcasting.

In addition, differed ruling practices had been adopted by various judicial organs in handling cases concerning speech induced crimes due to differences in cultural backgrounds, social development levels and legal systems. Common law jurisdictions usually apply the "clear and present danger test" as established by late Justice Oliver Wendell Holmes in Schenck verses United States (1919).

Justice Holmes wrote in the decision that "the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injection against uttering words that may have all the effect of force. 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."

What's interesting is that Justice Holmes's man-shouting-false-fire-alarm-in-theatre scenario would only amount to a public security case (to be handled by police rather than a court in China) to most Chinese, given that no injury or disturbance to social order was caused. It was, however, a criminal offence in the United States.

Standards for restrictions to the freedom of speech set forth by the United States courts could be taken as references for China, Gao said.

Firstly, freedom of speech should be subject to certain restrictions according to the danger of effect caused by the speech.

Secondly, standards for the restrictions to free speech should be determined in accordance with the nature and extent of danger to public order which might be incurred by the words under specific circumstances.

On these grounds, a state must restrain speeches which are seditious and provocative of social unrest, Gao said.

Therefore, there was no reason to doubt the Beijing courts' rule on Liu Xiaobo's case, even if reviewed with the standards of the United States, Gao said.

 

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