SECRET DETENTION POWERS, INCITING SUBVERSION AND PROBLEMS WITH THE CHINESE LEGAL SYSTEM

PROBLEMS WITH CHINESE LEGAL SYSTEM

20080310-legal knowledge5.jpg
Legal knowledge poster
China has a Kafkaesque legal system. Laws are poorly written. Legal codes are a jumble of laws and rules that in many cases are ambiguous and contradictory. Political need and personal whim often play a big part in Chinese legal decisions.

"Rules are words to dance around and laws mean what the authorities say they mean," one analyst wrote. Police routinely "take advantage of legal loopholes, intentionally misinterpret the law, distort evidence and break the laws they are supposed to enforce."

Contracts not enforced, connections rule. In 1996, McDonald's was ousted from a prime piece of real estate near the Forbidden City in Beijing even though it had a long term contract because a developer wanted the land. See Places

Corruption is a big problem. Bribes are given to judges, police and officials that handle evidence. People with enough money and good connections can often have a case decided in their favor. One worker who was thrown in jail for petitioning the government to get pension benefits he was entitled to told the Washington Post, “There is no law in China. Where there is money, there is power, that’s where the law is.”

Ordinary Chinese were angry at the justice system, the banking industry and at corrupt officials who get away with a lot more. One person wrote on the Tianya Club bulletin board, “Compared with Xu Ting, the corrupt officials deserve a thousand deaths. China’s judicial system allows officials to set a fire while forbidding ordinary people to light a lamp.”

Chris Buckley of Reuters wrote: “In China, "state security crimes" include subversion and other charges often used to punish dissidents who challenge the ruling Communist Party. China's police already have broad powers to hold people, and the party-controlled courts rarely challenge how those powers are exercised.

Lack of Enforcement and Recourse in China

There are plenty of adequate laws and regulations. The problem is enforcement. Yasgenh Huang, a professor at MIT’s Sloan Business School told the New York Times, “The issue is not whether Chinese businesses are regulated: they are. The issue is that the regulators are unable to be impartial in the enforcement of the laws. Those laws are meaningless in a system that does not even pretend to have judicial independence, media freedom and legislative oversight.”

The justice system offers few avenues for ordinary people who have been exploited, taken advantage or treated unjustly. Those that look out for their interests often end in trouble themselves. More than 100 defense lawyers have been arrested under a clause in the law that gives police and prosecutors the right to jail people for making statements in court deemed to be false.

After the detainment of well-known artist Ai Weiwei, former dissident Wei Jingsheng wrote in the Christian Science Monitor, This episode reveals not only the essence of a system where the individual has no rights, but also the evolution of a new brand of repression: the perverted “rule by law” instead of the “rule of law.” In other words, the application of legal loopholes to violate human rights instead of protect them.”Residence under surveillance”---where one is detained with no habeas corpus rights---is one of those legal loopholes. [Source: Wei Jingsheng, Christian Science Monitor, April 21, 2011]

Petition System, See Below

See Private Property, Economics

Maoist Thought Police Live On Chinese Justice System

20111123-Wiki CrbiddenCity_MaoZedongPortrait_(pixinn_net).jpg
Jerome A. Cohen wrote in South China Morning Post, “Maoist thought police Mao Zedong has been dead nearly 35 years but the influence of his doctrine is still felt today...The administration of criminal justice is surely one prominent area where the chairman's thinking has left an indelible impact, despite the large body of laws, regulations and interpretations promulgated since 1979. Beijing's increasingly expert legal officials, like law reformers in other countries, seek the right balance between protecting basic rights of all suspects and ensuring punishment of the guilty, and some legislative progress continues even in the present conservative political environment.” [Source: Jerome A. Cohen South China Morning Post, January 15, 2011]

“Nevertheless, foreign observers, not to mention China's able criminal defense lawyers and legal scholars, daily encounter cases where "politics takes command" over law, not only among police and prosecutors but also among judges and justice officials. Indeed, this politicization of criminal justice follows the public instructions of China's highest leaders. The legacy of "Mao Zedong Thought", enshrined in the constitution, is evident in the insistence of President and party General Secretary Hu Jintao , party Political and Legal Affairs Commission chief Zhou Yongkang and Supreme People's Court President Wang Shengjun on the primacy of party over law, in practice as well as theory.” [Ibid]

“The December 23 detention and brutalization by Beijing police of law professor Teng Biao and a fellow human rights defender explicitly illustrates the impact of Maoist thought on police practice. In a horrifying report posted online the day after his ordeal, Teng describes how, after trying to persuade his captors that they had no legal authority to interrogate, detain and beat him, the police station atmosphere suddenly became more threatening when an officer named Xu Ping learned that Teng had just visited the mother of a house-church Christian and legal scholar under house arrest elsewhere.” Xu shouted: "Oh, that's how it is! In that case, this just became a contradiction between the enemy and us! ... In that case we don't have to talk about law at all! And you ... won't get out of here again. You traitors, you dogs! Counter-revolutionaries! ... You keep insulting the party. We will treat you just like an enemy!" [Ibid]

“The fact is that Mao's amorphous doctrine, which originated in the pre-1949 revolutionary struggle to suppress "reactionaries" and establish the "people's democratic dictatorship", continues to serve as a crude rationalization for whatever repression party leaders deem desirable. Many Chinese legal officials and scholars unsuccessfully sought to clarify the criteria for distinguishing the "enemy" from the "people". Mao himself admitted that it was easy to confuse the two and that many good people had been mistakenly liquidated as "counter-revolutionaries". Indeed, as Teng's recent experience reminds us, there have only been two certainties: the party decides who is the "enemy", and anyone so identified loses the protections of the law.” [Ibid]

In tense times, even law professors have had to accommodate the chairman's rhetoric, as I can personally testify. In February 1992, after the Voice of America broadcast excerpts of a talk I had just given to the Beijing Foreign Correspondents' Club noting that Chinese courts were instruments of suppression, five Beijing law school deans were ordered to lie in wait in my hotel lobby "to register a solemn protest". They asked how I, "a friend of China", could make such a claim. I told them I had merely been quoting speeches made by Ren Jianxin, then president of the Supreme People's Court and head of the party's Political and Legal Affairs Commission, in the months after the 1989 Tiananmen slaughter. "Oh," they said, "Ren was only telling the courts to suppress counter-revolutionaries, not the `people'!" As long as Mao's pernicious doctrine persists, no Chinese citizen can be safe. [Ibid, Jerome A. Cohen is professor and co-director of the US-Asia Law Institute at NYU School of Law and adjunct senior fellow for Asia at the Council on Foreign Relations. He wrote the article in response to the account by Teng Biao in the Wall Street Journal]

Corruption in the Justice System in China

Sinologists say that the elite Communist Party judicial system runs to a certain degree on kickbacks and connections. The powerful and lucrative law firm, Kangda, for example, is a spin of the legal department of an immensely profitable and unaccountable corporate-charity empire called Kanghua, which was run by Deng Pufang, son of Deng Xiaoping.

High-profile judicial cadres who received hefty jail terms this year have included the Vice-President of the Supreme People’s Court Huang Songyou and the Director of the Justice Department of the directly administered city of Chongqing Wen Qiang. Both Huang and Wen allegedly offered protection umbrellas to shield the crimes of cronies who were businessmen in Guangdong Province and Chongqing, respectively.

The shocking extent of judicial corruption was exposed earlier this month when three judges in Lingling District, Yongzhou City, Hunan Province were gunned down by Zhu Jun, a post office security guard who claimed he was the victim of the miscarriage of justice. Zhu killed himself after the shootings. One day later, several hundred local residents held a demonstration outside the Lingling court office. Holding placards saying Zhu Jun is a people’s hero, the protestors called upon provincial and central authorities to investigate how Yongzhou judges had colluded with corrupt officials and businessmen to suppress the members of disadvantaged sectors. [Source: Russell Hsiao, China Brief, June 24, 2010]

20111121-1289787074_20.jpg
Liu Bolin, China’s Invisible Man artist

Corruption Fighters in China and Unwillingness to Enforce Laws

Chinese departments charged with fighting corruption and illicit business practices are themselves problematic. Take, for instance, the law courts. Since late 2008, a dozen or so senior judges at both the central and regional levels have been detained for none other than accepting bribes. Among these are the Executive Director of the Guangdong Higher People’s Court Yang Xiancai; Vice-President of the Intermediate People’s Court of Qingdao, Shandong Province, Liu Qingfeng; Vice-President of the Chongqing Higher People’s Court Zhang Tao; and Director of the Chongqing Municipal Judicial Bureau Wen Qiang. Even more disturbing are allegations that several high-ranking judges are accomplices of noted mafia bosses. Chongqing’s Wen, a former vice-head of the Chongqing police force, has been identified by Chinese media as a prime protector of triads. [Source: Jamestown Foundation, China Brief, Willy Lam, August 17, 2009]

Chinese legal institutions are often averse to carrying out laws they mandated to carry out. The Ministry of Public Security and Supreme People’s Procuratorate are often opposed to measures that might limit their powers. After one round of legal revisions in 2007, for example, prosecutors refused to allow lawyers to meet with clients accused of violating state-secrets laws, a hazy designation that is often used against dissidents. [Source: Andrew Jacobs, New York Times, May 31, 2010]

Group Licentiousness, the Last Draconian Law from the Cultural Revolution

Sociologist and sexual rights campaigner Li Yinhe wrote: “After the Cultural Revolution ended, we were left with many draconian laws that had to be reformed or removed. Basically all of these laws were repealed, and out of chaos came order. In 1997, newly created criminal laws finally did away with the crimes of “hooliganism” and being “counter-revolutionary.” This change largely improved the state of human rights in China, making it so citizens could no longer be punished for voluntary speech and behavior that didn't harm other people. Citizens' public and private lives became a lot safer than in the past, when they were punished at the slightest pretext. Since the change, citizens' understanding of their civic rights has also increased.”

“The crime of “group licentiousness” is the last draconian law left to us from the Cultural Revolution. It was originally a sub-clause under the crime of hooliganism. Thirty years ago, these “swinging” cases were handled with extreme harshness. The principal offender would get the death penalty and accomplices would get 15 years to life. The crime of hooliganism was not just leveled on people who engaged in group sexual behavior, but also included any type of extra-marital sexual behavior (the classic case was a female punished for having sex with multiple men). In 1997, after “hooliganism” was done away with, extra-marital relations were no longer considered a crime, but three or more people having sex still is. Such is the behavior that “group licentiousness” laws seek to punish.”

20080226-122206-china-prostitutes parade of shame in Shenzhen.jpg
Prostitutes parade of shame in Shenzhen

Public Shaming and Privacy in China

Public shaming was widely used in the Cultural Revolution and is still used today even though public humiliation of suspects was banned in the 1980s. See Sex, Shenzhen and the Elderly.

Public shaming has been a fixture of the justice system for thousands of years. Xhen Xiaoming, a professor of law at Xiamen University told the Los Angeles Times, “Shaming was very popular in ancient times with the trip from the court to the jail to exile all forms of public humiliation.”

Punishment included tattooing criminals’ faces and cutting off their feet. Tattooing was highly codified with certain colors placed on certain parts of the body identifying the crime. Noses were cut off to make them look pitiful and ridiculous. Some people were tied up and required to wear signboards and people were allowed to throw vegetables and other objects at them.

Criminals found guilty of certain crimes are still sometimes loaded into trucks and taken to town squares where they are shamefully and humiliatingly displayed with signs around their necks. The tactic was widely used in the Cultural Revolution. Public Justice, See Prostitution, Sex, People and Life,

See Internet Justice, Internet, Arts, Media, Sports

Privacy laws are very vague and found mainly in laws dealing with the postal system, labor and medicine. Still ordinary people win cases from time to time. A woman in Xinjiang won a $1,2000 privacy lawsuit against a doctor who allowed a group pf students watch her having an abortion.

In 2010 the Chinese government prohibited police from publicly shaming criminal suspects through such devices as parades, used most controversially for parades of prostitutes. Zhejiang Province introduced laws in 2006 requiring police to obtain permission from higher officials before they can enter hotel rooms. In Shanghai, a proposal to fingerprint elementary school students was scrapped because of privacy concerns.

Arbitrary Detainment in China


black jails
Amnesty International estimates a half million people are detained without charges in China. According to Amnesty International there are currently about 2,000 people in Chinese jails for political crimes and 230,000 people are in prison or labor camps who have not been charged of a crime. Thousands of Tibetan monks and nuns have been arbitrarily detained. China carried out more arrests and indictments for endangering state security in 2008 and 2009 than it did for the five year period between 2003 and 2007 according to the Dui Hua Foundation.

An unpopular law that allowed police to detain people traveling without resident permits was changed in the mid 2000s after a person detained under the law was beaten to death. The law was widely abused by police who would often detain migrants and hold them until a bribe was paid.

Attention was focused on detainment laws was also raised when the three-year-old daughter of a woman detained for shoplifting starved to death in her apartment while the woman was in prison. Once a man was illegally detained for 10 years because police could not gather enough evidence to convict him in court.

When Beijing is criticized about its detainment rules by the United States, the Chinese point out that hundreds of terrorist suspects have been detained without trial at Guantanamo Bay.

China Proposes Secret Detention Powers

Lengthy detentions without arrest are illegal in China, but activists worry changes proposed recently to the country's criminal procedure law may make it easier for police to do that. Activist Hu Jia, released this year after serving three and a half years in jail for sedition, said in a public letter that the proposals would legalise acts by the police that are now illegal but largely ignored, such as not giving prompt notification to relatives of anyone detained.

The Chinese government is expected soon to pass a revision of the criminal law that will allow the police to detain suspects in undisclosed locations for up to six months. For “special cases involving national security, terrorism and major bribery,” the proposed legislation says, suspects can be held in a secret place and their relatives need not be told.

Human rights lawyers see this move as Beijing’s effort to legalize draconian methods it had already been employing to silence dissidents. In the past couple of years, globally-known public intellectuals and NGO activists including artist Ai Weiwei and lawyer Gao Zhicheng had “disappeared” for months without any information being given to their spouses or relatives. Ai’s lawyer Liu Xiaoyuan pointed out that “this new amendment will legalize “forced disappearance.” [Source: Willy Lam, China Brief, September 16, 2011]

On the proposed amendments to China's Criminal Procedure Code. Jiang Tianyong, a lawyer in Beijing. Jiang was detained for two months without any contact with his family, told Reuters, "If this was already law, then people like me, Ai Weiwei and many others could have been detained with even fewer problems and obstacles and with a firmer legal basis. This would be a big step backwards, but I wouldn't discount the strong possibility of it becoming law. More people would face the risk of being disappeared." Ai Weiwei said that "the worst thing about Beijing is that you can never trust the judicial system." [Source:Chris Buckley, Reuters, August 30, 2011]

Chris Buckley of Reuters wrote: “Crime suspects and defendants detained under "residential surveillance" should usually be held in their own homes, says the proposed law released by China's National People's Congress, the Communist Party-controlled parliament. But politically sensitive crimes can be treated differently. "Those suspected of committing state security crimes, terrorist crimes and major bribery crimes" can be held at locations outside usual detention centers, says the draft released on the parliament's website.

Likewise, the families of ordinary suspects and defendants held under "residential surveillance" should be notified of their status within 24 hours. But in state security and other sensitive cases, police do not have to tell the families "if notification could hinder investigations," says the draft.

Some have speculated the measures seem to be a response to the uproar over the secretive detention of Ai Weiwei and other dissidents, Nicholas Bequelin, a researcher on China for Human Rights Watch, told Reuters, “The response is not to be more respectful of the law, but simply to change the law and remove the protections that were there.”

The draft amendment "will further help protect human rights, and conforms rather than contradicts international conventions," the Xinhua news agency said, citing several Chinese legal scholars.In principle, residential surveillance is a more humane kind of detention, allowing suspects and defendants to stay with their families, said Li Fangping, a Beijing lawyer who has defended dissidents and protesters.In practice, he and other critics said, it is used as a pretext to spirit detainees away to informal detention sites, including hotels, without telling their families or lawyers.

Letter from Ai Weiwei’s Wife to the Proposed Detention Law Changes


secret prisons
In an expression of an opinion on Amendments to The People’s Republic of China’s Criminal Procedure Code (draft legislation) To the Working Committee For The Rule of Law of the Standing Committee of the National People’s Congress, Ai Weiwei’s wife Lu Qing wrote: “As an ordinary citizen, I have seen that the Standing Committee of the National People’s Congress has publicly requested opinions on draft legislation for amendments to The People’s Republic of China’s Criminal Procedure Code. Paragraph 30 of the amendment stipulates that public security organs can, under special exceptions, set up a place for a suspect to reside under surveillance without notifying the family. Paragraphs 36 and 39 stipulate the special exceptions in which arrest or detention by public security organs can take place without family notification. This means that a Chinese citizen cannot have protection of his or her most basic rights. Residential Surveillance [originally conceived as house arrest] thus becomes secret detention, this is a blatant violation of the constitution. I ask the National People’s Congress, when you debate paragraphs 30, 36 and 39 of the amendment, not to pass the special exemptions. In this way you can clearly state that when public security organs take up forceful measures of detention, arrest or surveillance against any citizen, they should notify the family without exemption and within the period stipulated by law. [Source: http://erguotou.wordpress.com/2011/09/30/ai-weiweis-wife-lu-qing-writes-to- national-peoples-congress/ September 30, 2011]

My name is Lu Qing, citizen of China, I am a painter. My husband Ai Weiwei, artist, architect and participant in civil society, designer for FAKE Cultural Development Ltd., was taken away at customs at Beijing International Airport. He disappeared for 81 days. We did not receive any notification from the authorities. We did not know why he was kidnapped, where he was held, or about his health condition. When a citizen is taken away by public security, the family should be notified, to honor one the most basic human rights of a citizen. Family members are not co-defendants. They should have a right to know. If a society loses the protection of a citizen’s most basic rights, this is harmful for the whole society.

A cultured nation should respect the most basic rights of a person. If the above measures are passed, it will be a regression for China’s legal system, the deterioration of human rights, and will be a hindrance to the progress of our civilization. I hope that the current modification of amendments to the Criminal Procedure Code could restrain the arbitrariness the public security organs display in upholding law and order. I hope that citizens receive legal protection before the arm of the law, so that the basic human rights as they appear in the constitution are truly recognized....Signed:Lu Qing, 2011-09-28

Wei Jingsheng on Residence under Surveillance

On Residence under surveillance Wei Jingsheng wrote in Global Viewpoint, “In the spring of 1994, the Chinese Communist Party was facing sanctions from the USA. At that time the Clinton administration was preparing to ease the sanctions by delinking trade and human rights, which encountered strong resistance in the US Congress. The opinions of the Chinese dissidents became the key bargaining chip. [Source: Wei Jingsheng, Global Viewpoint, April 11, 2011]

Thus, President Jiang Zemin sent his police to detain me for negotiations. They even initiated a few conditions to improve human rights and the rule of law in exchange for me not to speak out against the delinking of trade and human rights. I did not agree at first. But, eventually, the compromise reached was that in exchange for releasing dissidents and also opening freedom of expression and loosening up on some trade union activities, I would keep silent on the issue of human rights and trade. This agreement encountered great resistance within the Communist Party factions that opposed Mr. Jiang’s initiative. As a result, I was seized again, with a certificate of summons for interrogation. Held incommunicado for two days, I protested the continuously served summons with no recourse.

I said: “First, in accordance with the Criminal Procedure Law, a summons for interrogation is just to talk to me. You have violated the law by interrogating me for more than 24 hours. Second, the continued interrogations should not be more than three times, and today is the last time. If you cannot produce a document that meets legal procedures to arrest or detain me, then I am sorry but I must be free to leave.”

Concerned about the impact if I bolted and exposed the deal, they assured me: “Do not worry, we will go get the right document from the Procuratorate now and give it to you tomorrow.” The following day, I asked: “Is the document here yet? If not, I am ready to go home.” The old policeman said with hesitation: “Yes, it is here, and you cannot go home yet.” When he handed over that piece of paper, I laughed. It was a certificate of “residence under surveillance.” So I said: “Look, without evidence, you cannot even get a detention warrant from the Procuratorate.” He replied: “This “residence under surveillance” (which allows continuous detention without charge) writ by the Public Security Bureau also works.”

I said, “This is illegal detention. I will be looking for lawyers to file against you.” We had a quarrel. Then the authorities who had negotiated with me requested to talk to me alone. We drove away from the “guesthouse” where I was being held---it supposedly belonged to the fake antique company in Tong County. I was told that the situation within the party leadership was very complicated. The anti-Jiang faction wanted trouble. If Jiang did not carry out the already reached agreement, or if there were unexpected protestations from my side, it would cause the breakdown of the deal with President Clinton. They told me that on the outside, the implementation of the agreement was still in effect, and the people I asked to be released were released. People like Wang Dan were still active, and the authorities had not arrested them despite pressure. So they hoped that I would not resist my detention, be patient, and give some face to Jiang Zemin for the sake of the country.

I weighed the pros and cons, and decided to accept their “residence under surveillance” document---while maintaining my rights of suing them for illegal detention at a later time. After that, Mr. Clinton successfully delinked trade and human rights. A new precedent for depriving personal freedom

When the authorities later took me to court, it turned out that even the court would not recognize that my detention had been legal under the Criminal Procedure Law requiring the approvals of the court and Procuratorate to deprive people of their freedom. But, they held, detaining a person without charge under “residence under surveillance” was a legal act. Since then, depriving people’s personal freedom in the name of “residence under surveillance” became “legal.” It is now routine under this public security tool for the state to deprive personal freedom arbitrarily. In other words, the law serves the authoritarian state, not the individual. [Wei Jingsheng was a leader of the Chinese democracy movement who spent 15 years in prison for authoring “The Fifth Modernization,” which he posted on the Democracy Wall in Beijing]

New Legislation Squelches the Disappearance Clause

The most controversial provision, dubbed “the disappearance clause” by human rights advocates, would have allowed the police to hold suspects for up to six months at secret locations without notifying their relatives. In the past few years, the police have increasingly employed that tactic to intimidate and silence government critics. The internationally known artist Ai Weiwei, for instance, was held incommunicado for 43 days last year in a secret location in Beijing before his wife was allowed to visit him.

Chen Guangzhong, a legal adviser to the legislative committee that drafted the amendments, said he and others had argued strenuously that the police should not be given such broad leeway. “I made it clear that was unacceptable,” said Mr. Chen, a consultant to the Supreme Court and the Supreme People’s Procuratorate. “That could mean that someone could be holed up in a place for six months without anybody knowing it.” Under the amendments presented, the police must tell relatives within 24 hours if a suspect is being held at a residential location outside a formal detention center.

“This particular battle has been won,” said Nicholas Bequelin, a Hong Kong-based senior researcher for Human Rights Watch. “This is about reformers preventing the police from getting extra powers.” The police must also notify relatives of suspects who are held in detention centers, unless notification would impede the investigation and the cases involve threats to national security or terrorism. Even then, legal specialists said, the delay is limited to 37 days.

China to Restrict Residential Surveillance---At Least on Paper

On the same legislation AP reported: China's authoritarian government is restricting the police's power to secretly detain people, at least on paper, announcing stricter revisions to a key criminal law Thursday after a wave of public complaints. Scholars welcomed the changes, saying they will offer better protection of suspects and reflect increasing awareness in China of the need for stronger detainee rights. [Source: Alexa Olesen, Associated Press, March 7, 2012]

The formal introduction of the revised criminal procedure law to the national legislature ends a half-year of speculation and debate about whether the government would give police the legal authority to do something they have long done extra-legally: disappear people for months at a time without telling their families. Police have increasingly used the tactic over the past year to detain activist lawyers, democracy campaigners, and even internationally acclaimed artist Ai Weiwei, amid government worries about whether the popular uprisings of the Arab Spring might spread to China.

While legal reformers have cheered the revisions, enforcement of most laws in China is spotty. Police and prosecutors have routinely ignored current legal provisions protecting suspects' rights and have frequently used charges of endangering national security against dissidents. There are two relevant articles in the law that deal with notifying families, one in regular criminal cases and the other involving a type of detention known as residential surveillance. Both have been revised to better protect detainees, though they don't do away completely with secret detentions, scholars said.

In the case of residential surveillance, a sort of house arrest that can happen in a fixed location that is chosen by police, a detainee's family must be notified within 24 hours unless they can't be reached. Dissidents detained under this kind of residential surveillance are often put in suburban hotels or apartments, and many have reported being tortured by police.

"It's not a picnic; it's not fun," said Joshua Rosenzweig, a human rights researcher based in Hong Kong who has documented detainee accounts of residential surveillance. "It involves serious psychological and physical abuse. This is something that is facilitated by police having so much control." Rosenzweig said abuses include being confined to bed for days at a time and holding fixed positions for hours, as well as constant police surveillance including when a detainee is using the toilet or in the shower.

"None of that is necessarily going to change because police are required to notify the family," he said. "What goes on in those so-called designated locations and how much regulation of police behavior in those places can take place is still an open question and an important question." Still, Rosenzweig and others said the latest version of the law marks a step forward for Chinese legal reform. Chen Guangzhong, an 82-year-old tenured professor at the Chinese University of Political Science and Law in Beijing who was critical of earlier drafts of the legislation, said the revised law marked a necessary curtailment of police powers.

Subversion and Inciting Subversion in China

Joshua Rosenzweig wrote in his blog, Siweiluozi's Blog, “According to Chinese Human Rights Defenders, on Wednesday the Wuhan Intermediate People's Court convicted Li Tie of subversion and sentenced him to 10 years in prison. This is the latest in a recent series of heavy punishments handed down against democracy advocates in China and illustrates the government's intent to respond harshly to those it views as political threats. The lead in the Reuters coverage of the sentencing reads: “A Chinese court has sentenced a writer to 10 years in prison on subversion charges for writing essays that urged people to defend their rights, a relative said, the third person to be sentenced on such charges in less than a month.” [Source:Joshua Rosenzweig, Siweiluozi's Blog, January 19, 2012]

This initially left me confused. Have three people been sentenced for subversion in China in less than a month? Not if the other two are Chen Wei and Chen Xi, who were both convicted of "inciting subversion." In fact, the Reuters piece accurately goes on to say exactly that, but then reports that the Hangzhou political activist Zhu Yufu was recently indicted on subversion charges. Actually, it was "inciting subversion." I don't mean to pick on this one piece, as the problem is actually quite widespread. I'm here to tell you that, as far as the law is concerned, "subversion" and "inciting subversion" are not synonymous or interchangeable.

One possible source of confusion is the fact that these two offenses are defined together in a single article of the Criminal Law, Article 105. The first paragraph sets out the crime of "subversion": “Among those who organize, plot or carry out acts to subvert the state power or overthrow the socialist system, the ringleaders and the others who commit major crimes shall be sentenced to life imprisonment or fixed-term imprisonment of not less than 10 years; the ones who take an active part in it shall be sentenced to fixed-term imprisonment of not less than three years but not more than 10 years; and the other participants shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention, public surveillance or deprivation of political rights.”

The offense of "inciting subversion” is defined in the second paragraph: “Whoever incites others by spreading rumors or slanders or any other means to subvert state power or overthrow the socialist system shall be sentenced to fixed-term imprisonment of not more than five years, criminal detention, public surveillance or deprivation of political rights; and the ringleaders and the others who commit major crimes shall be sentenced to fixed-term imprisonment of not less than five years.”

What's the Difference Between Subversion and Inciting Subversion?

On the difference between "subversion" and "inciting subversion"Joshua Rosenzweig wrote in Siweiluozi's Blog, “First off, you'll see that the two offenses involve different sorts of behavior: "organizing, plotting, or carrying out" subversive acts on the one hand versus "inciting others" to do so "by spreading rumors or slanders or any other means." In other words, "subversion" is primarily an offense of association or concrete action---the individual must be personally involved with actions designed to lead to overthrow of the political system---whereas "inciting subversion" is an offense of expression in which the danger lies in the alleged potential for that expression to lead others to want to overthrow the political system.

As a rule of thumb, then, individuals involved in any kind of organization like the China Democracy Party or the New Youth Study Society will most likely be charged with subversion. Individuals who have published articles critical of the government are usually punished with inciting subversion. Unfortunately, that distinction doesn't alway hold in practice (a point to which I'll return below).

Comparing the two offenses, you should also note the different standards for sentencing. Generally speaking, sentences for "subversion" tend to be heavier than sentences for "inciting subversion." Punishment for "serious" subversion starts at 10 years in prison and carries the possibility of life imprisonment, whereas punishment for "serious" cases of inciting subversion range from five to 15 years in prison (and only very rarely exceed 10 years).

One reason for the confusion is that the offenses of "subversion" and "inciting subversion" were written into law before the Internet came along and destroyed the clear distinction between speech and association. Many Internet cases involve a combination of association and expression. If I post articles advocating the need for an opposition party to a group of people in a chat room, is that organization or incitement? If my articles focus more on the structure or goals of my opposition party, then it might be argued that I'm organizing a subversive group. If my articles focus more on criticizing the tyranny of one-party rule, then it could very likely be construed as incitement.

This question came up for me in the early days after Liu Xiaobo was taken into custody for his involvement with Charter 08. I hypothesized at the time (and still believe) that part of the reason why there was such a long delay before formally charging Liu was because investigators were trying to decide whether Charter 08 was primarily an organization or a political manifesto.

Sentencing for Subversion and Inciting Subversion in China

Joshua Rosenzweig wrote in Siweiluozi's Blog, Although I haven't seen the indictment or verdict in Li Tie's case, this report from Radio Free Asia suggests that prosecutors may have aimed to have Li punished under the penalty for "serious" subversion. If so, then the 10-year sentence given to Li would fall in the lower end of that range. By contrast, the 10-year sentences given to Liu Xianbin and Chen Xi were quite heavy for the crime of "inciting subversion," the consequence of treating their crimes as serious and adding on extra time for recidivism.

One might ask whether it ultimately really matters whether a person is imprisoned for 10 years for "subversion" or for "inciting subversion"---the end result is the same. If the goal is, as I have previously suggested, getting perceived troublemakers "off the grid" for a long period of time, then one might expect the authorities to use whatever crime seems to "fit" the situation best or even (as is sometimes alleged) decide on the sentence first and then come up with the charges.

Sometimes the "fit" is not perfect. It's hard for me to interpret Li Tie's case without having access to court documents, but it appears as if many of his alleged crimes involved articles that he published---which would ordinarily fall under the category of incitement. On the other hand, He Depu was convicted of "inciting subversion" despite being an active member of the China Democracy Party---whose other members were almost universally convicted of subversion.

But although there is some ambiguity about how charges of "subversion" and "inciting subversion" are applied in the Chinese criminal justice system, courts ultimately decide on one offense or the other when rendering a verdict. Reporting on Chinese political cases should remain mindful of these distinctions in order to help present the most accurate representation of how China uses state security charges against those who hold different political views.

Image Sources: Posters: Wiki Commons, Landsberger Posters http://www.iisg.nl/~landsberger/; Gang of Four, Ohio State University; Prostitute parade, AP ; Liu Bolin, China’s Invisible Man artist, Global Times Chinese: photo.huanqiu.com http://photo.huanqiu.com/creativity/unlimited/2010-11/1254288.html ; YouTube

Text Sources: New York Times, Washington Post, Los Angeles Times, Times of London, National Geographic, The New Yorker, Time, Newsweek, Reuters, AP, Lonely Planet Guides, Compton’s Encyclopedia and various books and other publications.

Page Top

© 2008 Jeffrey Hays

Last updated April 2012

This site contains copyrighted material the use of which has not always been authorized by the copyright owner. Such material is made available in an effort to advance understanding of country or topic discussed in the article. This constitutes 'fair use' of any such copyrighted material as provided for in section 107 of the US Copyright Law. In accordance with Title 17 U.S.C. Section 107, the material on this site is distributed without profit. If you wish to use copyrighted material from this site for purposes of your own that go beyond 'fair use', you must obtain permission from the copyright owner. If you are the copyright owner and would like this content removed from factsanddetails.com, please contact me.