Zhejiang Court Affirms Lu Gengsong Sentence; CECC Translation of Decision
On April 7, 2008, the Zhejiang Provincial High People's Court affirmed a lower court's decision to sentence freelance writer Lu Gengsong to four years in prison for inciting subversion of state power, a crime under Article 105 of China's Criminal Law. Boxun, a U.S.-based citizen journalist Web site that publishes information and commentary on current events in China, posted a copy of the Zhejiang court's decision.
On April 7, 2008, the Zhejiang Provincial High People's Court affirmed a lower court's decision to sentence freelance writer Lu Gengsong to four years in prison for inciting subversion of state power, a crime under Article 105 of China's Criminal Law. Boxun, a U.S.-based citizen journalist Web site that publishes information and commentary on current events in China, posted a copy of the Zhejiang court's decision, and the Congressional-Executive Commission on China (CECC) has translated the decision into English. In February, a lower court in Hangzhou city, Zhejiang, found Lu guilty of publishing subversive essays on foreign Web sites, such as Blog.Chinesenewsnet.com (Duowei Boke), Boxun, and Future China Forum.
Article 105 provides that anyone who "incites others by spreading rumors or slanders or any other means to subvert the State power or overthrow the socialist system" shall be sentenced to no more than five years. In upholding the original ruling, the Zhejiang court agreed that certain passages in Lu's writings constituted slander and incitement. Among those passages included:
- "If one must find a ‘one and only legal government,’ then from a historical perspective and from the aspect of legally constituted authority, this ‘one and only legal government’ can only be the government of the Republic of China, and not the government of the People's Republic of China."
- "The government established by the Chinese Communist Party is of course China's illegitimate government, just like the ‘Manchukuo’ and Wang Jingwei's Nanjing government of the past."
- "No matter if it's rights defenders, members of the democracy movement, members of Falun Gong, freedom intellectuals, or religious activists, they should all join hands, work in concert, unite as one, and aim the spearhead at the vicious autocratic system. These forces should merge together within this great movement, finally forming a popular force that is sufficient to contend with the autocratic authorities on equal terms."
Lu made several arguments in his defense, including that he was exercising his right to free speech and had not harmed the national interest, according to the court judgment. The court rejected these arguments, noting that while China's Constitution grants citizens the right to free speech (Article 35), it also requires citizens to exercise such rights in a way that does not infringe upon the interests of the state and the society (Article 51). The court said Lu's essays slandered and defamed state power and the socialist system, thereby seriously infringing on the "interests of the state and society." The court did not explain how it concluded that Lu's writings constituted slander and defamation and provided no details regarding the actual harm caused to the "interests of the state and the society." Furthermore, the court did not specify who Lu sought to incite, other than to name the Web sites that his writings appeared on and to say that he sought to "incite the masses." International human rights standards allow officials to restrict freedom of expression if it poses a threat to national security. Article 105 is considered a crime of "endangering national security," but as with many other Article 105 cases in China, the court here made no attempt to show that Lu's writings caused, or were likely to cause, a threat to national security.
The UN Working Group on Arbitrary Detention, Chinese defense lawyers, and human rights groups have criticized the vagueness of Article 105 and China's frequent reliance on this provision to punish peaceful expression without any showing that the expression had any actual or potential subversive effect. (See a previous CECC analysis for more information.) Over the past year, China has used Article 105 to detain and sentence numerous citizens for peaceful expression of opposition to the Chinese government, Party, and their policies. These citizens include Hu Jia, Yang Chunlin, Wang Dejia, Chen Shuqing, and Yan Zhengxue.
For more information on these political prisoners and Lu, see their records of detention, searchable through the CECC's Political Prisoner Database.