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.

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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.

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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)

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