Zhu Yufu Case: Application of Inciting Subversion Provisions Fell Short of International Standards
In February 2012, a Chinese court sentenced long-time democracy activist Zhu Yufu to seven years in prison on the charge of "inciting subversion of state power." The court's judgment claimed that his writings and activities "harmed national security" and that in early 2011, amid Internet calls for "Jasmine" protest rallies in China, Zhu sent a poem and information to a number of people via the Internet "inciting" them to commit subversion. The court's judgment, however, did not explain how Zhu "harmed national security" or indicate the potential or real subversive effect of his words. Chinese criminal provisions regarding inciting subversion are vague, and, as in Zhu's case, their application falls short of international standards because officials have used them to punish peaceful political expression and activity.
Detailed Charges Against Zhu Yufu
On February 10, 2012, the Hangzhou Municipal Intermediate People's Court sentenced democracy advocate Zhu Yufu to seven years in prison for "inciting subversion of state power," a crime under Article 105, Paragraph 2, of China's Criminal Law, according to the court's judgment released by ChinaAid (10 February 12). The court also sentenced Zhu to three years' deprivation of political rights upon completion of his sentence. The court declared Zhu a recidivist, and based on Articles 65 and 66 of the Criminal Law, gave him a heavier punishment. In the court's judgment, authorities cited several of Zhu's writings and his activities associated with an "illegal" democracy party as evidence of "incitement," as noted below.
- Authorities asserted that beginning in 1998, Zhu engaged in activities associated with the "illegal" China Democracy Party (CDP) that "harmed national security," but did not assert that those activities disrupted public order or advocated or incited violence. The court's judgment did not provide details about those activities or explain how they endangered national security.
- Authorities cited as evidence Zhu's 2010 and 2011 fundraising activities on behalf of Chinese democracy activists and his statements explaining those activities, including one statement titled "2010 New Year Fundraising Brief Explanation." The court's judgment claims that Zhu raised funds on behalf of "criminals that had harmed national security and their families," and that Zhu's explanatory statements posted overseas "incited hostility towards state power and the socialist system in our country." The court's judgment, however, did not indicate who benefited from the fundraising activities or provide details of their "criminal" acts, nor did it provide evidence of the hostility caused by Zhu's statement.
- Authorities noted 21 articles, 8 recordings, and 4 videos dated from September 2009 onward and posted on overseas Web sites in which Zhu "fabricated malicious rumors and slandered our country's state power, inciting people to change (the regime) and seize political power." The court highlighted in its judgment a few of Zhu's statements that reportedly were recorded and transcribed by overseas organizations, including, "[v]icious political power is the common enemy of the Chinese people. This must change, [we] must give back to the people the power forcibly seized from them" (Sound of Hope, via Aboluo Net on January 23, 2011). Authorities did not indicate how this statement incited subversion. Zhu's statements apparently referred to limiting government authority because he followed the statements noted above with the sentence "[we] cannot use public authority to infringe upon an individual's right to religious freedom or infringe upon an individual's basic political rights."
- Authorities asserted that on February 18 and March 2, 2011, Zhu Yufu utilized the Internet to send information to more than 50 people, encouraging them to invite family and friends to gather illegally in the city square to "initiate a Jasmine Revolution similar to that in Tunisia" and "incite people to subvert state power in our country." Authorities noted that among the three documents Zhu sent out on February 18 to a number of people was a poem, entitled "It's Time," which included the line "[i]t's time to head to the Square and make your choice." (See this January 31, 2012, Human Rights in China statement that includes an English translation of the poem by A. E. Clark.)
Arguments by Zhu's Defense Team
According to the court's judgment, Zhu Yufu's defense lawyers argued that Zhu was not guilty. They asserted that Zhu did not incite subversion or engage in activities harmful to state security as a member of the CDP. They argued that his fundraising activities were charitable and not harmful to state security. The defense asserted that the articles Zhu wrote, which were posted overseas, expressed Zhu's dissatisfaction with the government, but did not seek to change the county's socialist system or to incite people to subvert the government. According to the court's judgment, authorities rejected each of the defense's arguments.
Application of Inciting Subversion Provisions Does Not Reach International Standards
In Zhu Yufu's case, Chinese authorities' application of legal provisions regarding "inciting subversion" fell short of international standards, and available information suggests authorities sentenced Zhu to stifle political expression. Both the International Covenant on Civil and Political Rights (Article 19) and the Universal Declaration of Human Rights (Article 29) require that any restriction on free expression be limited to that which is "necessary" to protect national security, public order, or public health or morals. According to a 2009 resolution of the Human Rights Council, governments should refrain from imposing restrictions on "[d]iscussion of government policies and political debate; reporting on human rights, government activities and corruption in government; engaging in election campaigns, peaceful demonstrations or political activities,…" (Item 5(p)(i), 12 October 09, A/HRC/RES/12/16).
Vague Statutes Regarding Inciting Subversion
Authorities do not clearly delineate constitutionally protected speech from subversive speech in relevant laws, which makes them subject to abuse. The court's judgment noted that the PRC Constitution grants citizens freedom of speech and of the press (Article 35). At the same time, it noted the PRC Constitution places limits on those freedoms if they "infringe upon the interests of the state, of society and of the collective, or upon the lawful freedoms and rights of other citizens" (Article 51). Neither the Constitution nor the court's judgment indicates the line between acceptable and prohibited speech. The court's judgment argued that Zhu's speech itself "seriously harmed the interests of the country and society." The court's judgment did not, however, cite evidence of harm or describe the potential or real subversive effect of Zhu's actions or writings. Zhu's case is not unusual. In general, the provision in China's Criminal Law regarding inciting subversion is vague, which contributes to abuse by authorities. A 2008 report by the human rights organization, Chinese Human Rights Defenders, noted that in China, "speech in and of itself is interpreted as constituting incitement of subversion" and that "anything from calling for an end to one-party rule to criticizing corruption has been construed as 'inciting subversion of state power.'" The Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression emphasized in a 2011 report to the UN General Assembly that it "remains concerned by the vague formulation of some domestic legal provisions that prohibit incitement. These include 'inciting subversion of state power'.... Such vague and broad terms clearly do not meet the criterion of legal clarity" (Item 29, 10 August 11, A/66/290).
Background on Zhu's Case
Public security bureau officials in Hangzhou municipality, Zhejiang province, detained Zhu on March 5, 2011, and formally arrested him on April 11 on suspicion of "inciting subversion of state power," according to the court's judgment. On August 8, 2011, the Hangzhou municipal procuratorate sent an indictment to the municipality's intermediate people's court. On October 25, the court cited the need for additional evidence and returned the case for further investigation. On December 22, procuratorate authorities again submitted an indictment to the court. Zhu's trial opened on January 31, 2012, and court authorities sentenced him the next month, also according to the court's judgment. Zhu has filed an appeal of his sentence (ChinaAid Association, 14 February 12). Previously in 1999, authorities sentenced him to seven years' imprisonment for founding a branch of the CDP and for publishing a politically sensitive magazine (Chinese Human Rights Defenders (CHRD), 31 January 12 and the New York Times, 17 January 12). Upon his release, Zhu spoke publicly about torture he allegedly suffered in prison. Authorities also imprisoned him for two years in 2007 on charges of "obstructing official business," because he confronted authorities questioning his son, allegedly with force, according to the CHRD article.
For more information about cases in which Chinese authorities have sentenced citizens for "inciting subversion of state power," see the CECC analysis on Liu Xiaobo, Tan Zuoren, Chen Wei, and the 2011 Crackdown here and here. Also see Section II—Freedom of Expression and Criminal Justice, and Section III—Institutions of Democratic Governance in the CECC 2011 Annual Report.