Liu Xiaobo Appeal Defense Statement
January 28, 2010
[Translation by Human Rights in China, January 29, 2010]

BEIJING   MO   SHAOPING   LAW   FIRM
The Southwest Yard Zhongshan Park Beijing 100031 P.R.China
Tel/Fax: 86-10-6605-8311  Zipcode:100031  e-mail：shaoping@public.bta.net.cn

Liu Xiaobo’s appeal against the charge of inciting subversion of state power

Defense argument of the second instance

To the first department of the Criminal Division of Beijing Municipal High People’s Court:

Honorable Presiding Judge Zhao Junhuai and Judges Liu Donghui and Lin Bingbing:

We have been retained in the present case of the appellant Liu Xiaobo and have been designated by the Beijing Mo Shaoping Law Firm; we are continuing to serve as defense counsel during Liu Xiaobo’s appeal against the charge of inciting subversion of state power. We shall faithfully fulfill the obligation of defense counsel that is stipulated in Article 35 of the Criminal Procedure Law of the People’s Republic of China (“CPL”); we shall, according to facts and law, put forward material and opinions proving that Liu Xiaobo is innocent, that the crime was light, or that his criminal responsibility should be exempted or mitigated; andwe shall uphold Liu Xiaobo’s lawful rights and interests in accordance with the law.

We have scrutinized the criminal verdict, Beijing Municipal No. 1 Intermediate People’s Court (the “court of first instance“) (2009) No. 3901 (the “verdict”), carefully considered the proof upon which the verdict was based, and have heard at length Liu Xiaobo’s own views on the verdict. In light of the verdict completely accepting all charges and evidence in the indictment put forth by this case’s public prosecutor, the No. 1 Branch of the Beijing Municipal People’s Procuratorate, the defense adheres to its original plea in the first instance, namely that: 1) the existing evidence does not prove Liu Xiaobo’s subjective intent to incite subversion of state power; 2) the charges of inciting subversion of state power against Liu Xiaobo in the indictment are based upon [writings] quoted out of context; 3) the charges in the indictment blur the line between a citizen’s free speech and criminal offenses; and 4) there have been major flaws during the investigation, the procuratorate’s examination before prosecution, and the trial of this case. Thus Liu Xiaobo should be acquitted!

Regarding the verdict, the defense needs only to re-emphasize the following:

The residential surveillance of Liu Xiaobo undertaken by the investigating organ of this case, the Beijing Municipal Public Security Bureau, is actually a disguised method of detention, and the duration of Liu’s surveillance should therefore be set off against his sentence. It is wrong that the verdict did not accept this argument.

While the defense is entering a plea of not guilty and does not agree with the court of first instance’s guilty verdict, the investigating organ’s “residential surveillance” of Liu Xiaobo was effectively a disguised method of detention and therefore, on the basis of judicial interpretations of the Supreme People’s Court and the relevant regulations, the period of “residential surveillance” should be set off against the sentence period.

According to the stipulations of Article 57 of the CPL and the stipulations of Articles 97 and 98 of the Regulations on the Procedures for Handling Criminal Cases by Public Security Organs, investigating organs shall observe the following provisions when adopting residential surveillance measures: 1) residential surveillance shall be carried out in the criminal suspect’s domicile (only for those without a fixed domicile can residential surveillance be conducted at a location determined by the investigating organ); 2) those put under residential surveillance have a right to live together with family members with whom they reside; and 3) those put under residential surveillance do not need approval to meet with their attorney.

The Beijing Municipal Public Security Bureau, the investigating organ of this case, fundamentally violated the above provisions during Liu Xiaobo’s residential surveillance. The specific facts and reasons are as follows:

1. No. 502, Unit 1, Block 10, Bank of China Dormitory, Qixian Village, Haidian District, Beijing is the lawful domicile of Liu Xiaobo and his wife, Liu Xia, in Beijing. It was the location required by the legal provisions for Liu’s residential surveillance. For the Beijing Municipal Public Security Bureau to put Liu Xiaobo under residential surveillance at any other location is illegal.
2. The Residential Surveillance Decision issued for Liu Xiaobo by the Beijing Municipal Public Security Bureau on December 9, 2008 did not state the location of the residential surveillance at all. For the duration of Liu Xiaobo’s residential surveillance, he was only permitted to meet twice with his wife, Liu Xia, at the Xiaotangshan Conference Center. His wife Liu Xia did not know where Liu Xiaobo was detained. Nor was Liu Xia, as a cohabitant family member, allowed to live together with Liu. According to Liu’s testimony during the trial of first instance, the location of his residential surveillance somewhat resembled a room in a guesthouse, but the room had no windows, just a small window in the bathroom. The conditions were worse than that of a detention center. Liu Xiaobo was put under solitary confinement and his personal liberties were restricted in full.
3. The attorneys retained by Liu Xiaobo’s wife, Liu Xia, repeatedly requested with the Beijing Municipal Public Security Bureau to meet with Liu Xiaobo, but they were never able to receive any reply [from the bureau]. Throughout the entire duration of Liu Xiaobo’s “residential surveillance,” he was unable to obtain permission to meet with counsel.

In sum, the Beijing Municipal Bureau Security Bureau’s residential surveillance of Liu Xiaobo was actually a disguised method of detention. The duration of Liu Xiaobo’s “residential surveillance” should be set off from his prison term per the stipulations set out in the Reply from the Supreme People’s Court Regarding the Question of Whether the Lawful Residential Surveillance Period Can Be Set Off against the Prison Term, that “if the criminal acts for which the defendant was sentenced and penalized and the acts for which the defendant was detained or taken into custody prior to arrest are the same acts, then the detention period can be set off against the prison term, regardless of the detention location, provided that there was a complete restriction on his personal freedom.”

As the defense’s plea from the trial of first instance expounded amply on the facts, laws, and legal principles of this case, we need not repeat them here. We hereby make the following plea in regards to some common-sense questions touched upon in the verdict:

I. On state power, the government, and the ruling party

Normally in political science and legal theory, “state power,” the “government,” and the “ruling party” are all different concepts.

“State power” is the specific embodiment of the state. It refers to the political organization that controls national sovereignty and all of the political power that it holds, to uphold the rule and administration of society. Generally this includes armed forces, police, courts, government, and officials.

The “government” is the executor of a state’s administrative power. It specifically refers to the organizational structure that enjoys administrative power according to the law within a state’s political system, i.e., the administrative organs among the institutions of the state’s political power.

The “ruling party” refers to the political party that wields a country’s state power through institutional elections or violent revolution. It can be one political party or an alliance of several political parties.

The government is the executor of a state’s administrative power. In the course of exercising its power, it is difficult for the government to avoid shortcomings or mistakes. As the ruling party is the wielder of state power, and it is often said that it “governs,” it is also difficult for the ruling party, in the course of governing, to avoid shortcomings or inadequacies and mistakes. Criticizing or censuring these types of shortcomings, inadequacies, or mistakes is a right due to any citizen, and it is also the foundation of Article 41 of the Constitution of the People’s Republic of China. Specific to this case, that Liu Xiaobo, in his capacity as a citizen, criticized the government and the ruling Communist Party of China to the point of opposition was one method of exercising his constitutional rights. Whether the contents of the criticism or opposition were right or wrong has no relation to the subversion of state power!

Around seventy years ago in Jiangsu, Zhang Shizhao made an incisive analysis of the relationship between the state, the government, and the party in his plea on behalf of CPC founder Chen Duxiu as he was being tried for endangering the Republic of China: “The ‘government’ is not equivalent to the ‘state.’ The sovereignty of the Republic was with the people; restoring the old system would have been treason and endangering the country. Any criticism, regardless of it being toward the government or a person or party within the government, is normal; only a semi-civilized country would subject those who criticize to jail time.” Seventy years later, as the entire world has undergone earth-shaking changes, is it possible that our rule of law common sense has not only not increased but instead declined?

II. On the freedom of speech

Normally in political science and legal theory, freedom of speech is the right to freely discuss with and to hear opinion of others as one wishes. Freedom of speech generally is regarded as an indispensible value and idea in modern democracies, the most fundamental human right. This means that every person has the right to voice “correct speech” and, moreover, the right to voice “wrong speech.” (If only “correct speech” is allowed and “wrong speech” prohibited, then it cannot be called “free speech.”) [The exercise of] public power can not only not intervene [in this speech], it cannot deprive [someone of this right to voice views] nor can it censor; it can only uphold [this right]. This is the foundation of Article 35 of the Constitution of the People’s Republic of China. In its verdict, the court of first instance, which was exercising public power, not only intervened and deprived Liu Xiaobo of his right to voice “wrong speech” in this case, it also sentenced Liu Xiaobo to a fixed term of eleven years’ imprisonment because he voiced his views. This is an abuse of public power and, moreover, a subversion of the commonly-held definition of “free speech.”

The evidence establishing Liu Xiaobo’s acts of inciting subversion of state power that the verdict sets forth were certain “inciting” phrases from six articles that Liu Xiaobo published on the Internet and from Charter 08. As cited in the verdict, [these included]: “changing the regime by changing society”; “for the emergence of a free China, hopes should be placed in the continuous expansion of the ‘new power’ among the people rather than in the ‘new government’ of the ruler”; “abolish one-party monopolization of ruling privileges”; and “establish China’s federal republic under the framework of constitutional democracy.”

Setting aside the suspicion that the “criminal evidence” set forth in the verdict and listed above was interpreted out of context and wantonly distorted, from the perspective of a commonly held understanding of “free speech,” one can easily see that the “criminal evidence” consisted only of Liu Xiaobo’s views and ideas. Putting aside the question of whether or not his views and ideas are correct, just how are they relevant to “inciting subversion of state power”? Specifically:

1. The excerpted phrase “changing the regime by changing society” is the title of Liu Xiaobo’s article “Changing the Regime by Changing Society.” From the title it can be seen, that the main purpose of Liu Xiaobo in writing this article is to express his personal insights on the reform of the political system. So-called “changing the regime” is not “subversion of the regime,” and the two are not the same concept. They have completely different content and implications (The change of government of each term can be interpreted as changing the regimes, yet only overthrowing the regime through violence and other illegal means can be called subversion of the regime.); further, there is no such crime as “changing state power.” (Upon close reading of the full text of “Changing the Regime by Changing Society,” it can be seen that what Liu Xiaobo advocated was “not pursuing the goal of seizing state power, but dedication to the establishment of a human society in which people can live with dignity.” It can be further clearly concluded that Liu Xiaobo did not “incite subversion of state power.”)
2. “For the emergence of a free China, hopes should be placed in the continuous expansion of the ‘new power’ among the people rather than in the ‘new government’ of the ruler.” This excerpt is only half of the sentence in Liu Xiaobo’s article “Can It Be that the Chinese People Deserve Only ‘Party-Led Democracy’?” The original text reads, “For the emergence of a free China, hopes should be placed in the continuous expansion of the ‘new power’ among the people rather than in the ‘new government’ of the ruler; the day that people’s dignity can be affirmed conceptually and legally, is the day that human rights of our countrymen receive institutional protections.” Liu Xiaobo wrote this article to express his personal overview regarding the white paper, “The Construction of Chinese Democratic Politics,” released by the Information Office of the State Council of the People’s Republic of China on October 19, 2005, and was never an act to incite others to subvert state power. Free China is only a vision of the future, containing no implication of subverting state power. (As long as one takes a closer look into the full text of “Can It Be that the Chinese People Deserve Only ‘Party-Led Democracy’?” instead of judging merely from the excerpts cited in the verdict, this conclusion is clear. )
3. “Abolish the privileges [derived from] the one-party monopoly on power” and “establish the federal republic of China under the frameworkof democracy and constitutional government” are two sentences from Charter 08. The original text reads, “Lift the ban on political parties. Regulate party activities according to the Constitution and law; abolish the privileges [derived from] the one-party monopoly on power; establish the principle of free and fair competition for political parties’ activities; normalize and legally regulate party politics”; “On the premise of free democracy, seek a cross-strait reconciliation plan through equal negotiation and cooperative interaction. Wisely explore possible ways and institutional blueprints for mutual prosperity of all ethnic groups and establish the federal republic of China under the frameworkof democracy and constitutional government.” The two passages from Charter 08 mainly propose ideas for loosening the prohibition of political parties and for the resolution of uniting the country in the future, but were never the acts for inciting others to subvert state power. “Establish China’s federal republic” was once the assertion of the Communist Party of China, and thus it cannot be concluded that Liu Xiaobo incited others to subvert state power. (With a closer reading of the full text of Charter 08, rather than judging merely from the excerpts of the verdict, this conclusion is clear.)

Extracting about 350 words from the six articles among the approximately 2,100,000 words in a total of 499 articles published by Liu Xiaobo since 2005, and then deciding Liu Xiaobo committed the crime of inciting subversion of state power – isn’t that the extreme freedom of speech irony? 

III. On procedural justice

Strictly abiding by due process of law is the crucial guarantee for realizing the equal enjoyment of justice by everyone in front of the law, and also part of the meaning of “respecting and safeguarding human rights” as prescribed in the Constitution of the People’s Republic of China. As the legal proverb goes: not only must Justice be done; it must also be seen to be done, namely, visible justice! This is what every judge with the judicial power to take away the lives, freedom, and property of citizens should bear in mind! The judges in this court are no exception. As the court turned a blind eye on the disguised method of detention that Liu Xiaobo was subjected to in the name of residential surveillance during the investigation, the failure to hear the defense’s argument in accordance with law during the procuratorate’s examination before prosecution, and the serious procedural violations such as limiting Liu Xiaobo’s self-defense and the oral argument time of defense counsel during the trial, how can we discuss procedural justice? Not to mention judicial fairness!

It is the defense’s firm belief: Liu Xiaobo is innocent, and any verdict that finds Liu Xiaobo guilty cannot withstand the trial of history!

Defense counsel for Liu Xiaobo in the trial of second instance: Beijing Mo Shaoping Law Firm
Lawyer, Shang Baojun
Lawyer, Ding Xikui

January 28, 2010