CRD Open Letter to the NPC, Urging Constitutional Review of the Crime of “Inciting Subversion”

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CRD Open Letter to the NPC,

Urging Constitutional Review of the Crime of “Inciting Subversion” and Abolition of Law Criminalizing Free Expression

On March 12, 2007, CRD released an open letter, urging the National People’s Congress to authorize review procedures to examine the constitutionality of an article in the PRC Criminal Code that criminalizes political speech as “inciting subversion against the state.” CRD finds Article 105 (2) in the PRC Criminal Code (1997), which has been systematically and routinely used to prosecute and imprison those who exercise freedom of political expression, unconstitutional.

Article 105 (2) of the Criminal Code violates Article 35 of the PRC Constitution, which protects all PRC citizens’ freedom of speech, press, assembly, association, demonstration and protest. Expressing political views, including dissenting views from Chinese Communist Party ideology and criticisms of government policies, is a constitutionally protected right and human right, thus must not be punishable as the crime of “inciting subversion.”

After the crime of “counter-revolutionary propaganda incitement” in the 1979 PRC Criminal Code was abandoned, it was quietly replaced in the 1997 Criminal Code by “inciting subversion against the state.” Chinese prosecutors and the courts have since used the same punishments under different names to penalize and retaliate against political dissidents, independent writers, journalists, and online activists for criticizing government policies or exposing official scandals. Consequently, free political expression as a crime punishable by law has survived the revision of the Criminal Code.

To illustrate, we present below a list of cases of individuals who are charged with “inciting subversion,” or are serving or have served terms after being convicted of such crimes. These are cases documented from the year 2000 to now and are by no means exhaustive. They indicate widespread use of the particular law to suppress free political expression.

According to PRC Legislation Law (li fa fa), the Standing Committee of the NPC has the authority to repeal any administrative order and law that goes against the constitution (PRC Legislation Law, Article 88 [2]). Article 90 (2) of the Legislation Law further stipulates that PRC citizens who find any law or administrative order unconstitutional can petition the NPC Standing Committee, in writing, to propose a constitutional review of the law or administrative order in question.

Acting on their duties and rights, several PRC citizens including Du Daobin, Huang Qi, and Cai Lujun, all of whom served jail terms on charges of “inciting subversion,” submitted a written petition requesting the NPC Standing Committee to review the constitutionality of Article 105(2) in the Criminal Code. The petition has so far received not even an acknowledgement of receipt from the authorities. CRD regards this as an indication of official irresponsibility and negligence. In endorsing the arguments made by Mr. Du et al., CRD finds “inciting subversion against the state” unconstitutional on the following grounds:

(1) Article 105(2) in the Criminal Code violates Article 35 of the PRC Constitution, which protects Chinese citizens’ right to freedom of expression and press. “Inciting subversion against the state” must be strictly and clearly defined in the law in accordance with the Constitution in order to prevent abuses of the law to criminalize free speech.

(2) The pervasive practice of prosecutors and the courts using Article 105(2) to punish free political expression has revealed confusion within the Criminal Code about the relationships between the state, the government, and the ruling Communist Party. To punish dissent from the government or the Party as inciting subversion against the state is to perpetuate a misunderstanding of Articles 1 and 3 of the PRC Constitution, which makes it clear that neither the Chinese Communist Party nor the Chinese government (the State Council, the prosecutors, the courts and so on) should be treated as the Chinese state itself. The Constitution stipulates that the “workers class” should lead the state. The CCP has no constitutionally specified legal status. The government is supposed to be authorized by the people, through the People’s Congress. The Constitution protects all PRC citizens’ right to supervise the powers exercised by government authorities.

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