19 January 2012

What's the Difference Between Subversion and Inciting Subversion?

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 lede 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.
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 don't even mean to pick on the foreign press corps in China (though some will probably argue that it's too late) because I suspect the problem often originates at the editing stage, as seemingly superfluous words are cut to save space and facilitate readability.

I'm here to tell you that, as far as the law is concerned, "subversion" and "inciting subversion" are not synonymous or interchangeable. The difference has important ramifications, especially in light of my earlier discussions about sentencing.


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," about which I've written before, 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.
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).

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.

The problem 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.

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.

See also:
Heavy Punishment and the Ongoing Crackdown in China (10 January) and
More on Heavy Punishment and the Ongoing Crackdown in China (13 January)

13 January 2012

More on Heavy Punishment and the Ongoing Crackdown

In my last post, I argued that the most important factor behind the heavy sentences recently handed down in China for "inciting subversion" is not the authorities' crackdown against dissent but, rather, the fact that the individuals who were being punished all had prior convictions for inciting subversion.

I later had a brief exchange on Twitter with someone I know to be knowledgeable about cases like these and the legal issues involved. His comments have led me to a partial rethink of how the sentencing works in cases like this. In this post, I want to look briefly at the example of Chen Wei, whose verdict has been made public by Chinese Human Rights Defenders.

Chinese verdicts are not necessarily a good record of everything that goes into determining a sentence, especially in political cases like these. But one can usually find an outline of the basic legal reasoning used by the court to determine the length of the sentence.

First, though, a word about sentencing for the offense of "inciting subversion." Fixed-term imprisonment for this offense can range anywhere from six months to 15 years, depending on the severity. According to Article 105(2) of the Criminal Law of the PRC, the only guideline is that ordinary offenses should be punished by up to five years in prison, whereas if the crime is "very serious," a sentence of no less than five years is indicated.

There are thus two levels of sentencing for "inciting subversion": from six months to five years for "ordinary" offenses and from five to 15 years for "very serious" offenses. I would argue that in practice there are actually three levels, with the "very serious" level divided in half at 10 years. As far as I know, Liu Xiaobo is the only person who has been sentenced to more than 10 years for inciting subversion since that offense became part of China's criminal code in 1997. I therefore see that upper range as territory "reserved" for those who are considered to be the "worst of the worst."

Towards the end of Chen Wei's verdict, the court explains how it reached its determination of how to sentence Chen. First:

The articles published on the Internet by Chen Wei were numerous, strongly inciting in nature, and the scope of their influence was large; [therefore], his crimes were very serious.
The evidence for this finding is a mixture of subjective and objective factors. The assessment of the "inciting nature" of the articles is based on a reading of the texts themselves, involving the isolation of selected passages illustrating Chen's alleged intent to incite overthrow of the political order. The objective factors are cited earlier in the verdict:
截止2011年2月25日,陈卫在“民主中国”、“中国人权”、“议报”等网站上发表的11篇文章,共计网页链接37个,点击数8 524次。

As of 25 February 2011, the 11 articles Chen Wei posted on websites such as "Democratic China," "Human Rights in China," and "ChinaEWeekly" had links to 37 websites and a total of 8,524 hits.
This evidence is intended to support the prosecution's charge in the indictment that:

The articles published [by Chen Wei] were widely linked to, reposted, and read, [resulting in/causing an] extremely bad impact.
I am not aware of the existence in China of any objective standard upon which to judge the impact of views expressed on the Internet, though I suspect that there may be some internal regulations on this since this kind of evidence has been showing up in verdicts for "inciting subversion" since at least the trial of Hu Jia in 2008.

In any case, the court makes clear that the alleged impact of Chen Wei's writings pushed him into the "very serious" sentencing range, meaning that a sentence of at least five years could be expected. That is where Chen's prior criminal record comes into play:

Chen Wei was previously given a criminal punishment for crimes of endangering state security and again committed a crime of endangering state security after that punishment had been served; this constitutes recidivism, and in accordance with the law punishment should be heavier.
In other words, where Chen's punishment falls within the range of five to 15 years' imprisonment is influenced by his status as a recidivist. Again, I would argue a sentence of greater than 10 years for "inciting subversion" enters territory "reserved" for only those who are deemed to be the "worst of the worst." So, Chen Wei's sentence of nine years satisfies the requirement that he be punished on the heavier end of the spectrum within the range indicated for "very serious" offenses.

Chen's lawyers argued that he shouldn't be treated as a recidivist because there is no legal basis for treating the crime of "counterrevolutionary propaganda and incitement" as an offense under the category of "endangering state security." While technically true, the categories of "counterrevolution" and "endangering state security" have been treated as interchangeable in practice ever since the Criminal Law was revised in 1997. It is therefore not surprising that the court basically ignores the argument and asserts the equivalence of the two types of offense for the purposes of Article 66.

I continue to believe that, as a practical matter, prior conviction for political offenses was a decisive factor in determining the length of punishments given last year to Liu Xianbin, Chen Wei, and Chen Xi. It is therefore misleading to compare the length of these recent sentences with the length of sentences given to first-time offenders like Hu Jia or Du Daobin and say that the difference shows evidence of a crackdown.

I will concede the possibility, even probability, of "crackdown influence" on the criteria determining what distinguishes "ordinary" from "very serious" offenses. Given that these criteria appear to be based on both subjective judgments about what constitutes "incitement" and more objective (but opaque) measures of influence, there is plenty of room for the overall political climate or direct intervention from above to influence sentencing.

But one looks, as I have, at the details of the dozens of known cases for "inciting subversion" that have been adjudicated since 1997, I think it is impossible but to conclude that history of prior convictions is one of the main determinations of where punishment falls in the sentencing spectrum.

10 January 2012

Heavy Punishment and the Ongoing Crackdown in China

Earlier today, the Committee to Protect Journalists issued a news alert on the recent conviction of veteran Chinese democracy activist Chen Xi, who was sentenced late last month to 10 years in prison for "inciting subversion."

In the alert, Bob Dietz, CPJ's program coordinator for Asia, is quoted as saying: "The severe sentence given to Chen Xi for online writing indicates that Chinese authorities are tightening their control of dissent. Penalties against government critics appear to be growing harsher."

As evidence for this trend of harshness, CPJ points to the sentences handed down last year to Liu Xianbin, Chen Wei, and Chen Xi, all in the range of 9-10 years, and rightly contrasts that to the sentences of up to five years normally handed down for that offense. By contrast, they cite earlier sentences given to Hu Jia, Chen Daojun, and Du Daobin, all of whom served less than four years.

I don't disagree that the recent sentences are heavy. I'm less convinced, however, that the sentences themselves are clear evidence of a crackdown on dissent in China. This is because the length of the sentences in each of these cases can be attributed in large part to mandated penalty-intensification under Chinese law.

According to Articles 65 and 66 of the Criminal Law of the PRC, heavier punishment is indicated for offenders who commit a second crime under the category of "endangering state security" after having served a prison sentence for a previous offense under the same category (including "counterrevolutionary" crimes under the 1979 criminal code. There is no time limit for state security offenses, meaning that heavier punishment is automatically mandated for a second conviction.

Let's look at the records of these recent cases:

Liu Xianbin (10 years): sentenced to 2-1/2 years' imprisonment for "counterrevolutionary propaganda and incitement" in 1992; sentenced to 13 years' imprisonment for subversion in 1999.

Chen Wei (9 years): sentenced to 4 years' imprisonment for "counterrevolutionary propaganda and incitement" in 1994.

Chen Xi (10 years): sentenced to 3 years' imprisonment for "counterrevolutionary propaganda and incitement" in 1990; sentenced to 10 years' imprisonment for "organizing and leading a counterrevolutionary group" in 1996.

By contrast, recidivism did not appear to be a factor in sentencing Liu Xiaobo (11 years in 2009), who, though detained for "counterrevolutionary propaganda and incitement" after June Fourth was ultimately exempted from criminal punishment. The harshness of that sentence can thus properly be seen as a direct response to Liu's alleged crimes. Likewise for the sentencing of He Depu (8 years in 2003.

The heavy sentences given to Wang Xiaoning (10 years in 2003) and Zheng Yichun (7 years in 2005) were the result of a different type of mandated intensification. Their state-security crimes were determined to have been committed in league with "overseas entities" and thus subject to heavier punishment under Article 106 of the Criminal Law.

Note that I'm not saying that there is no crackdown underway or that the punishments that were handed down are justified. I believe that China's use of criminal sanctions against "inciting subversion" is a clear violation of international human rights law protecting free expression.

What I am saying is simply that Liu Xianbin, Chen Wei, and Chen Xi were given heavy punishments not simply because of any ongoing crackdown but more because of their persistent and long-standing political activism, for which each of them has spent a considerable amount of the past two decades behind bars. I think it gives us a better understanding of how the government cracks down on dissent to recognize that it's precisely these kinds of veteran activists whom the authorities want "off the grid" and that the legal system is designed to enable them to do so.