Friday, January 20, 2023

Translation: Wang Yuwen & Wang Liqin Inciting Subversion Defense Brief

A Defense Opinion in the Wang Yuwen (Wang Zang) Inciting Subversion of State Power Case


Author: Lu Siwei
Article source: Original update time: 2022-12-11 15:21

Return the Power Written on Paper to the People

Defense Opinion of Wang Yuwen (Wang Zang), who stands accused of inciting subversion of state power

Note: This is defense statement comes late. After I learned that Wang Yuwen and Wang Liqin had been given harsh sentences, my conscience urged me to fulfill my duties as a defense counsel. This defense opinion is my defense of Wang Zang and his wife, as well as a brief account of the cases that had not been settled at the time my legal career was brought to an end. This defense statement was strongly supported and corrected by Wang Yuwen's other defense counsel, Zhang Lei. And here I would also like to express my enormous respect for Zhang Lei for all his hard work.

On January 15, 2021, my lawyer’s license was revoked by the Department of Justice of Sichuan. At that time, as Wang Yuwen’s (Wang Zang's) defense lawyer, I had examined all the files in Wang Zang's and Wang Liqin’s alleged "inciting subversion" case, and had prepared the defense opinion and the first draft of the defense. It only due to the suspension of my license before the trial of their case that I could no longer defend Wang Zang as a defense lawyer. This defense was not made public at that time because I did not want to be labeled as having "sensationalized" the case, and I had hoped that without any interference Chuxiong for its part would try to give Wang Zang a satisfactory result. Especially with respect to Wang Liqin, I constantly hoped that the court would release her on bail and let her go home to take care of her four children while she recovered from her own depression. But my kindness and naivete did not yield the desired results. Wang Zang was given a harsh sentence of four years imprisonment, and Wang Liqin was sentenced to two and a half years of imprisonment, both of which were very difficult for me to bear.

In particular, it was the court's smearing and insulting Wang Zang’s noble personality that compelled me to say a few words publicly. Wang Zang never pleaded guilty in the detention center. Later, the police arrested Wang Liqin, and it was only then that Wang Zang, out of profound love for his wife and concern for his children, in the hope that Wang Liqin would be released on bail as soon as possible, that he was forced to reexamine his thinking. These facts were recorded in detail when I met Wang Zang. When we met in the detention center, I could feel Wang Zang's shyness and humility. What I want to say now is that he can be convicted, but his personality and dignity cannot be derogated or tarnished.

To the Court.

In the case of Wang Yuwen (pseudonym: Wang Zang) and Wang Liqin, who are accused by the Procuratorate of Chuxiong Prefecture, Yunnan, of inciting subversion of state power, the defense counsels hereby express their defense opinions as follows.

The defense believes that Wang Yuwen is not guilty.

I. LEGAL BASIS OF THE DEFENSE OPINION

First of all, it needs to be stated that the defense opinions expressed by the defense counsels are based on Articles 35 and 42 of the Constitution. Of these, Article 35 stipulates that "Citizens of the People's Republic of China enjoy freedom of speech, of the press, of assembly, of association, of procession and of demonstration." Article 41 stipulates that "Citizens of the People's Republic of China have the right to criticize and make suggestions regarding any State organ or functionary."

The defense opinions are also based on the "International Covenant on Civil and Political Rights" adopted by the United Nations General Assembly on December 16, 1966 and open to all countries for signature, ratification and accession. The Chinese government signed the "Convention" at the United Nations Headquarters on October 5, 1998. The preamble of the "Convention" states:

The States Parties to the present Covenant,

Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

Recognizing that these rights derive from the inherent dignity of the human person,

Recognizing that, in accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying civil and political freedom and freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as well as his economic, social and cultural rights,

Considering the obligation of States under the Charter of the United Nations to promote universal respect for, and observance of, human rights and freedoms,

Realizing that the individual, having duties to other individuals and to the community to which he belongs, is under a responsibility to strive for the promotion and observance of the rights recognized in the present Covenant,

Agree upon the following articles:

Article 19 of the Covenant stipulates:

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

The protection of national security mentioned here is specifically reflected in the "The Johannesburg Principles on National Security, Freedom of Expression and Access to Information, Freedom of Expression and Access to Information":

II. Restrictions on Freedom of Expression

Principle 6: Expression That May Threaten National Security

Subject to Principles 15 and 16, expression may be punished as a threat to national security only if a government can demonstrate that:

(a) the expression is intended to incite imminent violence;

(b) it is likely to incite such violence; and

(c) there is a direct and immediate connection between the expression and the likelihood or occurrence of such violence.

Principle 7: Protected Expression

(a) Subject to Principles 15 and 16, the peaceful exercise of the right to freedom of expression shall not be considered a threat to national security or subjected to any restrictions or penalties. Expression which shall not constitute a threat to national security includes, but is not limited to, expression that:

(i) advocates non-violent change of government policy or the government itself;

(ii) constitutes criticism of, or insult to, the nation, the state or its symbols, the government, its agencies, or public officials, or a foreign nation, state or its symbols, government, agencies or public officials;

(iii) constitutes objection, or advocacy of objection, on grounds of religion, conscience or belief, to military conscription or service, a particular conflict, or the threat or use of force to settle international disputes;

(iv) is directed at communicating information about alleged violations of international human rights standards or international humanitarian law.

(b) No one may be punished for criticizing or insulting the nation, the state or its symbols, the government, its agencies, or public officials, or a foreign nation, state or its symbols, government, agency or public official unless the criticism or insult was intended and likely to incite imminent violence.

Expression, whether written or oral, can never be prohibited on the ground that it is in a particular language, especially the language of a national minority.

II. THE CONDUCT THE INDICTMENT ACCUSES WANG YUWEN OF COMMITTING - EXERCISING HIS RIGHT TO FREEDOM OF SPEECH IN PUBLIC STATEMENTS, INTERVIEWS, ARTICLES, POEMS, ARTICLES, AND IMAGES POSTED AND REPOSTED ON TWITTER, FACEBOOK, RADIO FREE ASIA AND OTHER MEDIA - DOES NOT CONSTITUTE THE COMMISSION OF A CRIME.

The indictment does not specify which of Wang Yuwen's comments, articles, poems, and images constituted the commission of a crime., but combined with the facts of Wang Yuwen's alleged crimes contained in the public security's "final investigation report," we can divide the alleged facts of Wang Yuwen's acts into commentary on realpolitik, evaluation of historical events, performance art and poetry creation, and acceptance speeches. These are described below.

(i) Political Expression and Political Commentary

Citizens' freedom of political expression and political commentary are part of the right to freedom of expression. Political expression and political commentary may include positive affirmation and critical negation of a political party, with positive affirmation being called praise and virtue, and critical negation being criticism, even severe criticism. If only positive affirmation and praise are allowed, but not critical negation and criticism, then there is no freedom of political expression and political commentary, and there is no freedom of speech. I believe that no one who has the right to make relevant interpretations would admit to saying that there is no freedom of expression in China.

(ii) Historical Commentary

Some of the content of the articles and poems that are the subject of the accusations against Wang Yuwen involved commentary on, and evaluation of, history. History is facts that have happened, and no one can deny what has happened. Historical evaluations and commentary based on that factual basis and arising from personal perceptions, feelings, likes and dislikes, and values are thus are also part of the freedom of expression. Is it yet not allowed to comment on historical facts that have already happened?

(iii) Performance Art

Performance art is a kind of art work created by Wang Yuwen to express his feelings and attitudes toward social phenomena, that is, to reveal some existing social phenomena in his mind, and also to show his artistic thought in pursuing freedom, which may have parodied certain social phenomena of the day, but was in fact merely satire. Almost all realistic literary and artistic works have some kind of satirical content. And irony is precisely a kind of higher expression of literature and art, an important support that gives literary and artistic works vitality and artistic value.

(iv) Poetry Creation and Award Acceptance Speeches

Wang Yuwen's poetry creation and award acceptance speeches expressed the natural feelings of a poet, a person who writes in Chinese, and a person with an independent spirit and libertarian ideology. It was an expression of his deep feelings for literature and words, a kind of inner confession, expressing Wang Yuwen's spiritual realm of seeking independent spirit and libertarian ideology, as well as a kind of literary creation and use of words, an expression of his inner thoughts, and an exercise of the right to freedom of expression.

III. A PATRIOTIC POET, SPEECH WITHOUT GUILT

Wang Yuwen is a poet and artist. The most prominent features of poets and artists are rich emotions and deep feelings beyond those of ordinary people, a humanitarian spirit of compassion, extraordinary sensitivity to social realities, and a strong sense of social injustice. This emotion and spirit must be expressed with the help of poems, articles, and other works of art, and once the inspiration appears, the works will burst forth. When expressing itself a free heart, a soul pursuing freedom, must break through all spiritual shackles in order to create truly good works. When we evaluate this case, we must first pay attention to Wang Yuwen's status as a poet.

Of course,  defense counsel is not suggesting that poets can break the law. What  defense counsel is saying is that special care should be taken to protect the freedom of expression and creativity of poets when dealing with their speech and works.

In the opinion of  defense counsel , Wang Yuwen is a contemporary poet who inherited the spiritual mantle of great patriotic and people-loving poets such as Qu Yuan, Du Fu, Su Shi, Lu You and Wen Tianxiang. He possesses the inherent spirituality of concern for the country and the people as expressed in such lines as:

  • "Long did I sigh to hold back tears; saddened am I by the grief of my people." The Sorrow of Separation by Qu Yuan
  • "While meat and wine go rot behind the vermilion gates of the rich, the poor freeze to death on an empty stomach by the roadside." My Brave Adventures, Du Fu
  • "Would that I had a million mansions! I would house all the poor people who would then beam with smiles." Su Shi
  • "What is a country's rise and fall? Can flesh-pots be as fragrant as mountain fruit?" A Letter to Censor Han, Du Fu
  • "If we do not dare to forget our country, we must wait for the coffin." The Book of Illness, Lu You
  • "Throughout the land no field lies fallow, while the farmers, nonetheless, perish from hunger." Commiserating with Farmers, Li Shen
  • "A magnanimous person of high integrity can adjust and maintain a positive attitude towards whatever life throws at him." Su Shi (trans. David Cowhig, https://gaodawei.wordpress.com/2019/03/07/a-most-chinese-public-disappearance-on-twitter-airmovingdevice/).
  • "Since ancient times who has averted death? Let my undying loyalty shine in the annals of history." On Crossing the Lingding Sea, Wen Tianxiang

It is because of his extreme concern for the country and the people, and his deep feelings for the country, the nation and the people, that Wang Yuwen has consistently written, composed, and published such a large number of works. The judiciary cannot nitpick through his works, picking out a dozen or so of Wang Yuwen's published writings and poems what they consider problematic and accusing him of inciting subversion of state power.

IV. WANG YUWEN LACKED THE SUBJECTIVE INTENT TO INCITE OTHERS TO SUBVERT STATE POWER

The offense of inciting subversion of state power as set forth in Article 105 of the "Criminal Law" is a crime requiring intent.  That is to say, the provisions of the Criminal Law require that a perpetrator must have the subjective intent to incite others to subvert state power in order to constitute a crime. If there is no such subjective intention, it is impossible to constitute this crime.

The evidence on file, mainly Wang Yuwen's statements and explanations, shows that Wang Yuwen lacked the subjective intent to incite others to subvert state power. This includes the explanation of Wang Yuwen's alleged conduct in his statements and explanations quoted extensively in the public security agency's "Final Investigation Report," which shows very clearly that Wang Yuwen only wanted to express his own thoughts, opinions, and ideas, without any intention to instigate or incite others, and that he did not have even the slightest idea of inciting others to "subvert" when expressing himself.

At the same time, there is not a single piece of evidence to prove that anyone was incited by Wang Yuwen to develop a desire to subvert state power or to take any action to subvert state power, and there is no evidence to prove there was.

It is clear, then, that Wang Yuwen cannot be guilty of inciting subversion of state power.

V. WANG YUWEN DID NOT COMMIT ANY ACT THAT INCITED SUBVERSION OF STATE POWER, AND THE ALLEGED ACTS INVOLVED IN THE CASE SHOULD BE EVALUATED AS FREEDOM OF SPEECH RATHER THAN AS A CRIME

The following has already been discussed previously, but shall be covered in more detail below:

(1) Comments on the issue of "Weibo Shutters Accounts of Yu Jianrong and 50 Other Top Accounts"1 in a Radio Free Asia interview.

Wang Yuwen believes that this is a kind of suppression of freedom of expression by the State apparatus. This is Wang Yuwen's perception and opinion of this matter. When an event happens, some people approve, some oppose, some praise, and some criticize. This is a normal phenomenon, and it should be a normal phenomenon in a normal society. If a society only allows one voice, then it really is as Wang Yuwen said in his confession and defense: "In ancient times to be arrested and sentenced for expressing one's own opinion was called a literary inquisition, and in contemporary times it is called being convicted for one's speech."

(2) Reposting the video of He Shiyun in Hong Kong and the performance art of serial masking.

He Shiyun's video was released to the world during the meeting of the United Nations Human Rights Council.2 Wang Yuwen reposted it. How could this constitute a crime? If Wang Yuwen's mere reposting constitutes a crime, can it be considered that the dignified UN Human Rights Council has held a meeting to subvert China's state power? The whole world can say it, but your own citizens can’t retweet it? What kind of mentality is this?

What performance art expresses is just a kind of feeling, a kind of Wang Yuwen's own feeling. He just expresses his own feelings. Others can agree with him, disagree with him, or ignore his feelings. Expressing feelings through works of art is normal freedom of speech and cannot be a crime.

(3) Comments on the hanging of Mao Zedong's portrait in many places.

The content of the interview expressed Wang Yuwen's personal feelings about social and political situations. Others may or may not agree with him. It is understandable freedom of speech for one person to express his personal observations on social situations.

(4) Political commentary on anti-corruption.

This was Wang Yuwen's personal political comment on a policy implemented in China based on his own observations. Since it is a comment, and he is coming at it from a different angle, he will come to different conclusions. It may be a favorable comment or a negative one. There is no right or wrong when it comes to comments. Even if a comment is incorrect, it is within the scope of freedom of speech. If the implementation of a policy only allows everyone to say yes, and does not allow different voices at all, then what freedom of speech is there?

(5) Retweet of Internet user Ruan Jie's content about the comparison between the Communist Party and the Kuomintang; Retweet Internet user Xin Haonian's tweet about Marxist-Leninist China.

First, a retweet does not equal a full endorsement. The views of Internet users Ruan Jie and Xin Haonian are not the same as those of Wang Yuwen.

Second, partially agreeing with other people's views does not mean that Wang Yuwen expressed the views he agrees with.

Third, views based on the history of political parties fall under the category of historical commentary and the category of freedom of speech.

(6) Retweet of a tweet about Hong Zhenkuai's views from "New York Times Chinese Website"

As far as defense counsel is aware, no one from the New York Times who expressed these views, nor Hong Zhenkuai himself, has been prosecuted by any Chinese judicial department for publishing these views. So why does Wang Yuwen's reposting constitute a crime? Where is the spirit and principle of equality before the law? Or is it the case that, these views fundamentally cannot constitute any crime whatsoever, and therefore neither Hong Zhenkuai nor anyone from the New York Times was charged and prosecuted, but in order to punish Wang Yuwen, he is forcibly incriminated for merely forwarding them.

(7) "Use the blood of freedom to illuminate suffering."

This verse has a spiritual connection with Qu Yuan's "On and on stretched my road, long it was and far, I would go high and go low in this search that I made."3 It is here that Wang Yuwen reached out through more than two thousand years of history, and inherited the anxious thoughts from the spirit of the great patriotic poet Qu Yuan.

(8) The poem "Seven Rhythms Mid-Autumn Festival" (last of two poems)

The title says it all. It's lyrical. It is merely expressing personal feelings.

(9) "The Lawyer Sui Muqing Whom I Know" and the interpretation of Wang Yuwen's poems by the outside world.

The article "The Lawyer Sui Muqing Whom I Know" is a kind of public opinion reciprocation by Wang Liqin and Wang Yuwen to the lawyer Sui Muqing, who helped them when they were in trouble. Its content is completely true, without any fiction. How could such an article be an act inciting subversion of state power? It just doesn't make sense.

As for the outside world's interpretation of Wang Zang's poems, that is the business of other people. What does it have to do with Wang Yuwen? He compiled the collection by himself and did not publish it publicly. How could it be an act inciting subversion of state power? He didn't make it public, so how could he instigate anything?

(10) Supporting the "Occupy Central" movement in Hong Kong with a shaved head and an umbrella.

There is no need to discuss this fact in this case, because this fact has already been determined and dealt with in the 2015 Procuratorate of Tongzhou, Beijing's non-prosecution decision against Wang Yuwen: That is, it does not constitute a crime at all.

6. When judging whether or not speech is suspected of constituting the commission of crime, special attention should be paid to the paramount status of the Constitution

All of the facts of Wang Yuwen's alleged involvement in the case relate, in a broad sense, to speech. In particular, speech critical of the Communist Party and the government. The words used in the indictment are "vilifying and attacking the Party and the government, the State regime and the socialist system." Although defense counsel does not agree with the normative terms "vilifying and attacking" used in the indictment, it is also necessary to remind the court here that so-called "vilifying and attacking" are actually very close to "criticizing." Different people may have different feelings about the same words. To someone who is magnanimous, "sharp criticism" may cause feelings of a need to "fix those problems that exist, and guard against problems that might occur." For someone who is not magnanimous, it may mean "attack, vilify, and bring down." "The Communist Party of China must be tolerant of sharp criticism, and it should fix those problems that exist, and guard against problems that might occur. People outside the Party must dare to tell the truth, dare to speak harsh words, truly reflect the aspirations of the masses, and be able to speak on all topics without reservation."4 How is it you can say one thing yet do another while these words still ring in our ears? What is "sharp criticism"? It is criticism that may be fierce or even extreme. It is a negative evaluation that makes you uncomfortable, or even extremely uncomfortable. The defense counsel believes that the speeches, articles, poems, and performance art works of Wang Yuwen subject to accusations by the prosecution can all be attributed to the category of "sharp criticism." It is hoped that the judiciary will implement a judicial policy of positive interaction and fully protect Wang Yuwen's right to criticize.

Among the various considerations in this case, apart from the fact that the ruling party should be tolerant of sharp criticism, special attention should also be paid to the most paramount status of the Constitution, which clearly guarantees freedom of speech. From the perspective of jurisprudence and legal methodology, the judiciary is required to give special consideration to the priority of freedom of speech when evaluating illegal and criminal acts involving speech. It is necessary to avoid escalating the exercise of freedom of speech into a crime of incitement. It is necessary to avoid attributing citizens' conduct of exercising their right to criticize as being in the the nature of attacking and slandering. This is because, if the protection of freedom of speech is not prioritized, and if speech is easily criminalized, it will easily lead to the widespread infringement, reduction, or even elimination of the freedom of speech rights of Chinese citizens. In this divine land, in ancient times there were literary inquisitions, and thought crimes in the "Cultural Revolution." Today, as humanity has arrived into the 21st century, the judiciary must exercise caution when punishing people for their words. Otherwise, due to the general guidance and demonstrative impact such a judgment will have, it will result in a suppression of people's freedom of speech, rendering everyone silent, and society's path will be clear. Is it possible that we would hope for bring about such a society and a return to such an antiquity?

Judicial judgments should not suppress the population and imprison people's hearts. Rather, judgments should guarantee rights, especially constitutional rights, and advocate for people's right to freedom of speech. If a right requires extreme care in order to be exercised, then in essence no one has that right at all. The same is true of freedom of speech. If people need to be careful and repeatedly self-censor before exercising their right to freedom of speech so that what they say, what they write, and what they create will not be suppressed by the law, then people actually have no freedom of speech.

No one wants to live in a place where there is no freedom of speech.

Please use the acquittal of Wang Yuwen and Wang Liqin to tell the Chinese people and the whole world: Chinese people have freedom of speech!

Thank you.

Wang Yuwen's defense counsel: Lu Siwei

First draft in Chengdu at the end of 2020

1. "Fifty Weibo accounts of well-known Chinese scholars Yu Jianrong and others were banned and shut down this week. The official Weibo community management account "Weibo Administrator" released the "Announcement on the Handling of Harmful Information on Current Affairs" on Monday, pointing out that some netizens posted harmful information, and 50 accounts were banned and closed." 微博停于建嵘等50个头部号 川女戴红领巾捕鱼遭拘留12日, April 9, 2019,  https://www.rfa.org/mandarin/yataibaodao/renquanfazhi/ql2-04092019095953.html. Wang's comment: "Wang Zang, an independent artist in Beijing, told this station that punishing people for their speech is a characteristic of a totalitarian society: 'A totalitarian society only allows the existence of the Ministry of Truth and its affiliated institutions, and everything must be painted over and glorified. Freedom of speech is the natural enemy of totalitarian politics, and it is something that must be smothered. They constantly enforce silence, including on the Constitution, which is just a kind of decoration. When the people want to express their voices independently, they will be suppressed and punished by the State apparatus.'" (北京独立艺术家王藏对本台表示,因言获罪是集权社会的特征:“集权社会只允许真理部及其附属机构存在,一切都要涂脂抹粉、歌功颂德。言论自由是集权政治的天敌,是必须要扼杀的。他们一直在封口,包括宪法在内,只是一种装饰。当民众要独立表达声音的时候,就会受到国家机器的各种压制、处罚。”). 

2. See "China Interrupts Hong Kong Pop Star During UN Speech," https://edition.cnn.com/2019/07/08/asia/denise-ho-un-intl-hnk/index.html: "Denise Ho told the UN Human Rights Council in Geneva that China had reneged on the commitments it made when it took control of Hong Kong in 1997, echoing the concerns of millions of Hong Kongers who have joined mass protests in recent weeks. 'The Vienna Declaration guarantees democracy and human rights. Yet in Hong Kong, these are under serious attack,' Ho said in her short address to the UN body. 

3. Translation: Stephen Owen (1996). An Anthology of Chinese Literature: Beginnings to 1911 (New York: W.W. Norton): 162–75.

4. This quotation was taken from a speech given by Xi Jinping in 2013 to leaders of the central committees of the PRC's democratic parties, the All-China Federation of Industry and Commerce, and representatives of personages without party affiliation gathered together to welcome the Spring Festival. See "Xi Jinping Welcomes the New Year Together With People Outside the Party, Li Keqiang and Yu Zhengsheng attend" (习近平同党外人士共迎新春 李克强、俞正声出席) February 8, 2013, http://cpc.people.com.cn/n/2013/0208/c64094-20467155.html (https://web.archive.org/web/20221022140047/http://cpc.people.com.cn/n/2013/0208/c64094-20467155.html). See also, "What Inspiration Can be Derived from Xi Jinping's 'The Communist Party Should Tolerate Sharp Criticism?" (习近平“共产党要容得下尖锐批评”启示啥?), Guo Junkui (郭俊奎), February 26, 2013, http://cpc.people.com.cn/n/2013/0216/c241220-20493723.html (https://web.archive.org/web/2/http://cpc.people.com.cn/n/2013/0216/c241220-20493723.html). It was listed by the People's Daily as one of "Chairman Xi Jinping's 10 New Theories Garnering the Most Attention" (习近平总书记最受关注的10个新论断), http://theory.people.com.cn/n/2014/0121/c40555-24185095.html (https://web.archive.org/web/20221021044557/http://theory.people.com.cn/n/2014/0121/c40555-24185095.html).

王玉文(王藏)被控煽动颠覆国家政权案辩护意见

作者:卢思位 


把写在纸上的权利归还给人民

——王玉文(王藏)被控煽动颠覆国家政权案辩护意见

按:这时一份迟到的辩护词,在我得知王玉文、王利芹夫妇被重判后,良知促使我完成作为一名辩护人的职责,这份辩护意见,算是本人对王藏夫妇,对本人律师生涯终止时尚未办结的案件的一点交待。这份辩护词得到了王玉文的另一辩护人张磊律师的大力支持和斧正,在此也向张律师的辛勤付出表达崇高的敬意。本人于2021年1月15日被四川省司法厅吊销律师执业证,彼时本人作为王玉文(王藏)的辩护律师已经查阅了王藏、王利芹夫妇涉嫌“煽颠”案的所有卷宗,并且提前准备好了辩护意见和辩护词初稿,只是在二人案件开庭之前,本人因被吊销执业证无法再以辩护律师的身份出庭为王藏辩护。但是为政治犯的辩护,并不局限于法庭。当时没有公开辩护词,是不想被人贴上“炒作”案件的标签,也希望楚雄方面能在毫无干扰地情况下尽量给王藏一个理想的处理结果,尤其是王利芹,我一再希望法院能对她取保候审,让她回家照顾四个儿女,同时疗养她自己的抑郁症,但是,我的善良和天真并没有换来理想的结果,王藏被重判四年,王利芹被判两年半实刑,这都让我非常难受。尤其是法院竟然对王藏的高贵人格进行抹黑和羞辱,让我不得不公开说几句,王藏在看守所从未认罪,后来警方抓捕了王利芹,王藏出于对妻子的深爱和儿女的担忧,希望王利芹能尽快被取保候审,才不得不对思想进行了一番认识,这些事实在我会见王藏的时候都进行了详细的记录。在看守所会见的时候,我能感受到王藏的腼腆和谦虚,我现在想说的就是,他可以获罪,但是他的人格和尊严不容贬损和玷污。

法庭:

就云南省楚雄州检察院指控王玉文(笔名:王藏)、王利芹构成煽动颠覆国家政权一案,辩护人现发表以下辩护意见。

辩护人认为王玉文无罪。

一、辩护意见的法律基础

首先需要表明的是,辩护人所发表的辩护意见,是建立在《宪法》第三十五条和四十一条的基础之上。其中第三十五条规定“中华人民共和国公民有言论、出版、集会、结社、游行、示威的自由。”第四十一条规定“中华人民共和国公民对于任何国家机关和国家工作人员,有提出批评和建议的权利;”

辩护意见亦建立在《世界人权宣言》第十九条的基础之上:“人人有权享有主张和发表意见的自由;此项权利包括持有主张而不受干涉的自由,和通过任何媒介和不论国界寻求、接受和传递消息和思想的自由。”

辩护意见同时亦建立在联合国大会1966年12月16日通过并开放给各国签字、批准和加入的《公民权利与政治权利国际公约》之上,中国政府于1998年10月5日在联合国总部签署了《公约》,《公约》前文部分载明:“人类一家,对于人人天赋尊严及其平等而且不可割让权利之确认,实系世界自由正义与和平之基础;确认依据世界人权宣言之昭示,唯有创造环境,使人人除享有经济社会文化权利而外,并得享受公民及政治权利,始克实现自由人类享受公民及政治自由无所恐惧不虞匮乏之理想;鉴于联合国宪章之规定,各国负有义务,必须促进人权及自由之普遍尊重及遵守”。公约第十九条规定:“一、人人有保持意见不受干预之权利。二、人人有发表自由之权利;此种权利包括以语言、文字或出版物、艺术或自己选择之其他方式,不分国界,寻求、接受及传播各种消息及思想之自由。三、本条第二项所载权利之行使,附有特别责任及义务,故得予以某种限制,但此种限制以经法律规定,且为下列各项所必要者为限:(子)尊重他人权利或名誉;(丑)保障国家安全或公共秩序、或公共卫生或风化。”

此处提到保障国家安全,在《约翰内斯堡关于国家安全、言论自由和获取信息自由原则》中有专门的体现:Ⅱ.对表达自由的限制原则6:可能威胁国家安全的表达在遵循原则15和原则16的前提下,威胁国家安全的表达可受到制裁,只要政府能证明:(1)该表达意图激起即将发生的暴力;(2)该表达有可能会引起这样的暴力;并且(3)在该表达与该暴力的发生或与该暴力发生的可能性之间存在着某种直接且紧迫的联系。原则7:受保障的表达(1)依循原则15和原则16,和平地行使表达自由权不得被视为对国家安全构成威胁或者遭到任何限制或惩罚。对国家安全不应当构成威胁的表达包括但不限于:ⅰ宣扬用非暴力的方式改变政府政策或政府本身;ⅱ对本国民族、国家或国家的象征性标志、本国政府及其机构、本国公职人员、或外国的民族、国家或其象征性标志、外国政府、外国机构或外国公职人员构成批评或侮辱;(2)任何人都不得因为批评或侮辱本国民族、国家或其象征性标志、本国政府及其机构、本国公职人员、或外国民族、国家或其象征性标志、外国政府及其机构以及外国的公职人员而受到惩罚,除非这种批评或侮辱意图在于或者有可能引起即将发生的暴力。

王玉文作为中国公民,显然享有中国宪法所明确的言论自由的权利。王玉文作为人类的一员,显然也享有国际公约所倡导的言论自由这一基本人权。

二、起诉书指控王玉文在推特、脸书、自由亚洲电台等媒体上公开发布的言论、接受的采访、发表的文章、发表和转载的诗歌、文章、图片,均是王玉文行使自己言论自由权利的行为,不构成犯罪。

起诉书并没有具体的指控王玉文的哪些言论、文章、诗歌、图片构成犯罪,结合公安“侦查终结报告”所载的王玉文的所谓涉嫌犯罪的事实,可以将指控王玉文的事实行为分为对现实政治的评论、对历史事件的评价、行为艺术和诗歌创作及获奖感言几大部分。以下分述之。

(一)政治表达和政治评论

公民进行自由的政治表达和政治评论,属于言论自由权利的一部分。政治表达和政治评论,可能包括对某政党正面的肯定和负面的否定,正面的肯定谓之歌功颂德,负面的否定即是批评,甚至是严厉的批评。如果只能进行正面的肯定和歌功颂德,而不允许进行负面的否定和批评,那就没有了政治表达和政治评论的自由,那就没有了言论自由。我相信没有任何一个有权进行相关解释的人会承认说中国没有言论自由。

(二)历史评论

王玉文被指控的一部分文章诗歌内容涉及到对一些历史的评论、评价,历史是已经发生过的事实,是谁都不能否认的确定已经发生的事实,基于该事实基础之上的,个人的认知、情感、好恶、价值观,进而进行历史评价、评论,也是言论自由的一部分。已经发生的历史事实,难道还不允许人评论吗?

(三)行为艺术

行为艺术是王玉文所创作的一种艺术作品,是为表达其对社会现象的一种感觉,一种态度,即是揭示其心目中的某种业已存在的社会现象,也是表明自己追求自由的艺术家的艺术思想,可能具有讽刺当今某些社会现象的地方,但这也仅仅是讽刺而已。几乎所有的现实主义文学艺术作品,都具有某种讽刺内容。而讽刺正是一种文学艺术的高超表现手法,是赋予文学艺术作品生命力和艺术价值的重要支撑。

(四)诗歌创作和获奖感言

王玉文的诗歌创作和获奖感言,表达的是一个诗人、一个用中文文字书写的人、一个拥有独立精神和自由思想的人的自然情感,是对自己对于文学、文字的深切情感的表达,是一种内心剖白,表达了王玉文所求独立精神和自由思想的精神境界,同时也是一种文学创作和文字运用,是内心思想的表达,是言论自由权利的行使。

三、诗人爱国,言论无罪

王玉文是一位诗人、艺术家,诗人和艺术家最为突出的特点就是具有超越常人的丰富的情感和深厚的情怀,具有悲天悯人的人道主义精神,对社会现实具有超常的敏感,对社会不公不义具有强烈的愤怒,这种情感和精神必须借助诗歌、文章和其他艺术作品进行表达,一旦灵感出现,作品就将喷薄而出。而一颗自由的心,追求自由的灵魂,在进行表达时,必须突破一切精神枷锁的束缚,才能创作出真正的好作品。我们在评价本案时,一定要首先注意王玉文的诗人身份。

当然,辩护人并不是在说诗人就可以违法,辩护人说的是,在对待诗人的言论和作品时,要特别注意保护诗人的言论创作自由。

在辩护人看来,王玉文是一位继承了屈原、杜甫、苏轼、陆游、文天祥等伟大的爱国爱民诗人的精神衣钵的当代诗人,其具有“长太息以掩涕兮,哀民生之多艰”、“朱门酒肉臭,路有冻死骨”、“安得广厦千万间,大庇天下寒士俱欢颜”、“国家成败吾岂敢,色难腥腐餐枫香”、“位卑未敢忘忧国,事定犹须待阖棺”、“四海无闲田,农夫犹饿死”、“一点浩然气,千里快哉风”、“人生自古谁无死,留取丹心照汗青”的忧国忧民的内在精神气质。

正是因为极度的忧国忧民,怀着对国家和民族以及人民的深切情感,王玉文才写下了、创作了、发表了他那一以贯之的大量作品。司法部门,不能鸡蛋里面挑骨头,从王玉文发表的海量的文字、诗歌作品中挑出十来篇认为有问题的,就指控他煽动颠覆国家政权。

四、王玉文没有煽动他人颠覆国家政权的主观故意

《刑法》第105条煽动颠覆国家政权罪名,必须是故意犯罪,也就是说刑法条文要求行为人必须具有煽动他人颠覆国家政权的主观故意,才有可能构成此罪名。如果没有此主观故意,即不可能构成此罪名。

而在案证据显示,主要是王玉文的供述与辩解笔录,显示王玉文并无煽动他人颠覆国家政权的主观故意,包括公安部门的“侦查终结报告”中大量引用了王玉文供述与辩解笔录中对于被指控行为的解释,其中表现得非常清楚明了,王玉文仅仅就是为了表达自己心中的想法、观点和思想,没有任何鼓动或者煽动他人的意思,他在表达自己的时候,根本就没有哪怕一丁点要煽动他人如何“颠覆”的想法。

同时,也没有任何一份证据证明有任何人受到了王玉文的煽动从而产生了要颠覆国家政权的愿望,或者产生了要颠覆国家政权的行动,没有任何证据证明这一点。

那么,很显然,王玉文就不可能构成煽动颠覆国家政权罪。

五、王玉文没有实施煽动颠覆国家政权的行为,指控其涉案行为均应以言论自由而非犯罪评价之

前已经述及,此再详论:

(一)在自由亚洲电台采访对于“微博停于建嵘等50个头部号”问题时的评论。

王玉文认为这是国家机器对言论自由的一种压制。这是王玉文对于此事的一种认识和看法。一个事件发生,有人赞成,有人反对,有人歌颂,有人批评,这都是正常现象,也应该是一个正常社会的正常现象,如果一个社会只允许有一个声音,那就真正是王玉文在供述与辩解中所说的“因表达自己的看法,最后被抓被判刑,在古代叫文字狱,在当代叫因言获罪”了。

(二)转发香港何诗韵的视频以及连环蒙嘴的行为艺术。

何诗韵的视频是在联合国人权理事会开会时向全世界公开发表的,王玉文转发一下,怎么就构成犯罪了呢?如果王玉文仅仅转发一下就构成犯罪,那是不是可以认为堂堂的联合国人权理事会开了一个颠覆中国国家政权的会?全世界说都可以,自己的公民转发一下就不行?这是什么心态?

行为艺术所表达的也只是一种感想,一种王玉文自己的感受,他只是把自己的这种感受表达出来,别人可以认同他的,也可以反对他的,也可以无视他的这种感受,通过艺术作品表达感受,是典型的言论自由,不可能是犯罪。

(三)对多地挂毛泽东像的评论。

采访内容表达的是王玉文对社会政治形势的一种个人感受,别人可以认同,也可以不认同,一个人发表一下对于社会形势的个人观察,是无可厚非的言论自由。

(四)对反腐的政治评论。

这是王玉文个人根据自己的观察,对中国施行的一项政策的政治评论,既然是评论,站在不同的角度,只然就会得出不同的结论,可以是赞同性评论,也可以是否定性评论,并无对错可言,即便是错误,那也是言论自由的范围。如果一项政策的施行,只允许所有人说好好好,完全不允许有不同的声音,那还有什么言论自由可言呢?

(五)转推网民阮杰关于共产党与国民党比较的内容;转推网民辛灏年的关于马列中国的推文。

首先,转推并不等于完全的认同。网民阮杰、辛灏年的观点并不等同于王玉文的观点。

其次,对他人观点的部分认同,并不代表王玉文发表了他所认同的观点。

第三,以于政党历史的看法,属于历史评论,属于言论自由。

(六)转推“纽约时报中文网”关于洪振快观点的推文

据辩护人了解,发表此观点的纽约时报的任何人、以及洪振快本人,没有因为此观点的发表而受到任何中国司法部门的司法追究,那么,为何王玉文转发就构成犯罪了呢?法律面前人人平等的精神和原则到哪里去了?或者,此观点根本就不可能构成任何犯罪,所以纽约时报的任何人和洪振快都才没有受到追究,但是为了要惩治王玉文,而将本来不可能构成犯罪的事情,在王玉文仅仅只是转发的情况下,将王玉文强行入罪。

(七)“用自由之血光照苦难”。

这一诗句与屈原的“路漫漫其修远兮,吾将上下而求索”打通了精神连接,正是在这里,王玉文穿越两千余年的历史,从精神脉络上承接了伟大的爱国诗人屈原的忧思。

(八)诗歌《七律中秋抒怀》(外二首)。

标题都说了,这是抒怀。抒发个人情怀而已。

(九)《我所了解的隋牧青律师》及外界对王玉文诗歌的解读。

《我所了解的隋牧青律师》一文,是王利芹、王玉文二人对于其受困之时援手帮助他们的隋牧青律师在遭到困难时的一种舆论上的投桃报李,其内容完全属实,并无任何虚构,这样的一篇文章,怎么可能是煽动颠覆国家政权的行为?简直是岂有此理。

而外界对于王藏诗歌的解读,那是外界其他人的事情,和王玉文有什么关系?他自己整理收藏,又没有公开发表,怎么可能是构成煽动颠覆国家政权的实行行为?他都没有公开,何来煽动?

(十)声援支持香港“占中”活动光头打伞照片。

此一节事实,根本就不需要再在此案中进行讨论,因为此节事实,已经由北京市通州区检察院在2015年对王玉文的不起诉决定书里认定处理完毕:那就是,根本不构成犯罪。

六、在用是否涉嫌犯罪来评价言论时,要特别注意宪法的优先位阶

王玉文被指控的涉案事实,全部都是广义上的言论。特别是言论中对共产党和政府的批评部分。起诉书中的用词是“污蔑、攻击党和政府、国家政权和社会主义制度。”虽然辩护人并不认同起诉书中所使用的“污蔑、攻击”之词语定性,但是在此也需要提请法庭注意,所谓“污蔑、攻击”,与“批评”其实是非常之接近的,对于同样的词语,可能不同的人的感受是不一样的,“尖锐的批评”在有雅量的人那里,产生的后果可能就是“有则改之,无则加勉”,而到了没有雅量的人那里,可能就成了“攻击、污蔑、打倒”。“对中国共产党而言,要容得下尖锐批评,做到有则改之、无则加勉;对党外人士而言,要敢于讲真话,敢于讲逆耳之言,真实反映群众心声,做到知无不言、言无不尽。”言犹在耳,怎么能说一套,做一套呢?什么叫“尖锐的批评”?就是可能是激烈的甚至极端的批评言辞,就是让你听着不舒服甚至是很不舒服的否定性评价。辩护人认为起诉指控的王玉文的言论、文章、诗歌、行为艺术作品,全部可以归结到“尖锐的批评”的范畴。希望司法机关能够贯彻落实良性互动的司法政策,充分保障王玉文的批评权。

在本案的各种考量因素中,除了执政党应当有容忍尖锐批评声音的雅量之外,我们应当特别注意到《宪法》的最根本的优先位阶,而其中明载的对于言论自由的保障,则从法理上、从法律方法上,要求司法机构在评价言论所涉及的违法犯罪行为时,要特别考虑到言论自由的优先地位,一定要避免将行使言论自由的行为,拨高成为煽动性犯罪,一定要避免将公民行使批评权利的行为,凑数为攻击污蔑的性质。因为,如果不优先保障言论自由,如果轻易就将言论入罪,则极容易导致中国公民的言论自由权利受到普遍的侵害、减损,甚至是消灭。神州大地,古有文字狱,“文革”中有思想罪,在人类已经发展到了21世纪二十年代了的今天,司法机构在因言治罪时,请一定要慎之又慎。否则,因这样的判决所具有的普遍引导和示范效应,将产生钳制人们言论自由的结果,将使得人人噤若寒蝉,社会道路以目。我们难道希望出现这样的一个社会和如此“复古”的一种局面吗?

司法的判决,应当给权利以保障,特别是给宪法权利以充分的保障,通过判决倡导人们言论自由的权利,而不是钳制人口,禁錮人心。如果一项权利需要人们极度小心翼翼才能够行使,那实质上人们根本就不享有那项权利。言论自由也是这样,如果人们在行使言论自由权利之前,需要小心翼翼、再三自我审查,说出口的话,写出来的文字,创作的作品,才不会遭到法律的压制打击,那么,人们其实就根本没有了言论自由。

没有人希望自己生活在没有言论自由的地方。

请用王玉文、王利芹的无罪判决,告诉中国人,告诉全世界:中国人有言论自由!

谢谢。

王玉文的辩护人:卢思位
二0二0年底初稿于成都

Translation: Huang Xuqin and Wang Jianbing Inciting Subversion Indictment

On June 14, 2024, the Twitter account "Free Huang Xueqin & Wang Jianbing 释放雪饼" (@FreeXueBing)  posted a copy of the last two p...