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On January 15, 2021, my lawyer’s license was revoked by the Department of Justice of Sichuan.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!
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).