China: What’s in a Law?
Five years ago this past Monday, PEN received word from our sources inside China that Liu Xiaobo, who had been held under “residential surveillance” at an undisclosed location in Beijing for more than six months, was finally being formally arrested. The charge used to eventually put him in prison for 11 years, “inciting subversion of state power,” was the number one charge used to imprison writers for years. Now, it is part of a growing cache.
At the time, 11 years in prison was the lengthiest sentence ever given to a writer under the “incitement” clause of the subversion law. A person charged with actual “subversion,” like 2008 PEN/Barbara Goldsmith Freedom to Write Award winner Yang Tongyan, would receive a heavier sentence for purportedly carrying out actual subversive activities. (Yang is still serving a 12-year sentence in Nanjing Prison, Jiangsu Province.) In these cases, officials are typically able to link a person to an organization that, in the Chinese Communist Party’s eyes, was aiming to overthrow the government. In Yang’s case, it was the China Democracy Party.
In Liu’s case, officials were unable to make this link. Liu had remained independent from the years before his advocacy in Tiananmen Square, when he was a salty literary critic at universities in Beijing and abroad, through the time of his incarceration. Like all PEN Centers around the world, the Independent Chinese PEN Center (ICPC)—where Liu was a founding member and president from 2003 to 2007— stayed true to its name and also maintained its independence; association with it could not equate to political activity. “Inciting subversion” typically suggests that a person was urging others, in this case through their writings, to subvert the state.
When Liu was finally brought to trial in December of 2009, though we knew he could receive up to 15 years in prison, PEN thought that he might receive a five-year sentence under the “inciting subversion” clause. We were very, very wrong. His 11-year sentence was egregious and, according to China insiders, an attempt to “kill the chicken to scare the monkeys.”
In other words, Liu’s case set a precedent. Within two years, three other writers were given heavy sentences for “inciting.”
Still, killing the chicken did not, in fact, kill the monkeys. From Liu’s work on behalf of a sustainable, broad-based democratic movement grew a new civil society venture. Writers, activists, and laypersons are now working within the laws to ensure citizens’ civil rights. But since subversion charges don’t always fit in these cases, the Chinese government set off the alarm. Now in vogue is “disrupting public order,” or “gathering a crowd to disrupt public order.” The sentences aren’t as long as those for subversion, but the arrests are widespread, and growing.
Xu Zhiyong, a writer, legal scholar, and leader of the New Citizens’ Movement, was arrested in July 2013. On January 26, 2014, four days after a closed-door trial, he was sentenced to four years’ imprisonment for “gathering crowds to disrupt public order.”
ICPC Member Zhao Changqing, a Beijing-based freelance writer, political essayist, and anti-corruption activist, was put on trial in January this year and, on April 18, was sentenced to two and a half years in prison for “gathering a crowd to disturb public order.” Zhao has been a victim of both laws: he had previously been detained twice before for his dissident activities and writings, and served a total of eight years in prison for “inciting subversion of state power.”
And most recently, Pu Zhiqiang, a writer and human rights lawyer who attended a private gathering to commemorate the 25th anniversary of the 1989 democracy movement and Tiananmen massacre, was detained on May 4, 2014. On June 13, he was formally arrested and charged with “creating a disturbance” and “illegally obtaining personal information.” If brought to trial, he could face a lengthy sentence.
In addition to “disturbance” and “subversion,” two other legal clauses are in full use against writers: “separatism” and “disclosing state secrets.” Both remain extremely worrisome.
Last week, PEN received reports that Ilham Tohti had been tried in secret the in far-flung Xinjiang Autonomous Region, where he is being held on separatism charges. Under Chinese law, “separatism”—also known as “splittism”—indicates acts that aim to “split” a territory from the country and is used against minority nationalities from regions that chafe under Chinese rule. Here, too, there is an “inciting” aspect of the clause that, like “inciting subversion,” is often used against writers who the state determines have used their writings to encourage others to plot to split the motherland.
We were relieved to discover that the reports were inaccurate—instead, his case was handed to the Urumqi office of the prosecutor—who will determine if there is enough evidence to indict. If they do, we are seriously concerned that Ilham has little chance for a fair trial. He still has not been granted access to his lawyer. If convicted, he could face life in prison or even the death penalty for the charge of “separatism.”
The “state secrets” clause knows no ethnic boundaries. It has been used against minority writers like Kunchok Tsephel, a Tibetan writer and founder of a website dedicated to Tibetan literature and culture who is serving a 15-year sentence, and most recently has been lobbed against Gao Yu, an ICPC Member and journalist who was also detained in the weeks leading up to the 25th anniversary of the Tiananmen crackdown. Most writers who are accused of this have information about state directives—often, these may not be palatable to the public. Here, there is no splitting of hairs. If convicted of “disclosing state secrets,” the penalty is large: writers convicted of the crime generally face at least 10 years in prison.
There seems to be a catch-all law for every form of speech the Chinese government finds disfavorable, despite the fact that Article 35 of the country’s constitution guarantees freedom of expression. We’re still prepared to defend every writer jailed because of what they write. Are you?