MCLC: subversion vs. inciting subversion

Sat Jan 21 10:28:38 EST 2012

MCLC LIST
From: Anne Henochowicz <annemh at alumni.upenn.edu>
Subject: subversion vs. inciting subversion
***********************************************************

The BBC article Rowena posted touches on the difference between charges of
"subversion" and "inciting subversion." Joshua Rosenzweig addresses this
distinction in the blog post below.

Anne

=====================================================

Source: Siweiluozi's Blog (1/19/2012):
<http://www.siweiluozi.net/2012/01/whats-difference-between-subversion-and.
html>

What's the Difference Between Subversion and Inciting Subversion?

According <http://wqw2010.blogspot.com/2012/01/10.html> 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
<http://in.reuters.com/article/2012/01/19/china-writer-subversion-idINDEE80
I02Q20120119> 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
<https://twitter.com/#%21/siweiluozi/status/159902103509274624>) 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
<http://www.siweiluozi.net/2012/01/heavy-punishment-and-ongoing-crackdown.h
tml> discussions 
<http://www.siweiluozi.net/2012/01/more-on-heavy-punishment-and-ongoing.htm
l> 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
<http://www.siweiluozi.net/search/label/New%20Youth%20Study%20Society>
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 <http://www.rfa.org/mandarin/yataibaodao/lt-04182011084752.html>
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
<http://www.siweiluozi.net/2009/06/liu-xiaobo-and-inciting-subversion.html>
 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.