25 June 2009

Liu Xiaobo and (Inciting) Subversion

Yesterday, I translated part of an analysis by Beijing lawyer Liu Lu concerning the formal arrest of veteran dissident Liu Xiaobo. I agree with most of this analysis but have a different opinion about the significance of the charge—"inciting subversion" (Article 105.2 of the criminal law).

Liu Lu reasons that because Liu Xiaobo has been charged with "inciting subversion," it's most likely that the "crime(s)" in question concern some of the many articles that Liu Xiaobo has written over the years, rather than "Charter 08"—which is what most people have been assuming. If "Charter 08" were the main issue, Liu Lu argues, the charge would be "subversion" and we would see additional arrests.

First of all, I agree that it's quite possible that police are charging Liu Xiaobo on the basis of the many non-"Charter" items he has published on the Internet over the years. But that doesn't mean that the initial decision to detain Liu and the determination to keep him incarcerated is not connected with "Charter 08." The timing of Liu Xiaobo's detention simply doesn't allow for too many other explanations. (To be fair, I don't think Liu Lu is arguing otherwise.)

As I understand it, the key to making a subversion charge under Article 105.1 is proving that some sort of organization—or attempt to create one—lies behind the supposedly subversive activity. I have suspected all along that the police investigating "Charter 08" have been trying to establish that it was created by people who formed or tried to form such an organization, rather than an informal coalescing of like-minded individuals around an expression of common beliefs. I suspect the authorities haven't been able to find any solid evidence of such organization—not least because one doesn't appear to have existed—and thus have keyed in on Liu Xiaobo as a key drafter of the document (whether he actually was or not).

So, I believe it's still possible that the police are actually building their incitement case around "Charter 08," a document that can be (mis-)interpreted as calling for the overthrow of the one-party state. But the question then remains, why is Liu Xiaobo the only one so far who has been treated to this extended stay in police custody?

It wouldn't be unheard of, however, for the charge to be changed to subversion at a later stage in the investigation and see others charged as well. By formally arresting Liu Xiaobo (as opposed to sending the case directly to prosecutors), police have bought themselves more time to figure it out as they—or the higher-ups actually calling the shots—go along.

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