The trial against Taiwanese human rights activist Lee Ming-che (李明哲), who has now been detained in China for 171 days, is scheduled to begin in the Intermediate People’s Court in the city of Yueyang today.
If this case becomes a precedent, Taiwanese in China will be under constant risk of having their personal freedoms restricted.
According to the first paragraph of Article 105 of the Chinese Criminal Code: “Whoever organizes, plots, or acts to subvert the political power of the state and overthrow the socialist system, the ringleaders or those whose crimes are grave are to be sentenced to life imprisonment, or not less than 10 years of fixed-term imprisonment; active participants are to be sentenced from not less than three years to not more than 10 years of fixed-term imprisonment; other participants are to be sentenced to not more than three years of fixed-term imprisonment, criminal detention, control, or deprivation of political rights.”
The second paragraph states that whoever instigates a subversion of the state is to be given a prison sentence of five years or less, while the leaders and those whose crimes are grave are to be sentenced to a minimum of five years in prison.
The offense of instigating and actively participating in subverting state power and overthrowing the socialist system is defined as organizing or plotting such an action or spreading rumors, all of which are ambiguous legal concepts.
This offense has become an effective way of restricting free speech and the freedom of expression.
This is why even Nobel Peace Prize laureate Liu Xiaobo (劉曉波) was convicted of this offense after writing the Charter 08 document, and kept in prison and under hospital arrest until his death.
Both Chinese and foreigners can be convicted of subverting and overthrowing state power. However, a foreigner who has been arrested, tried and convicted in terms of this offense would likely be deported in accordance with Article 35 of the Criminal Code, and so a conviction would not lead to the foreigner receiving a practical punishment.
However, because Beijing does not consider Taiwanese to be foreigners, they would not be deported. Taiwanese would have to serve out the prison sentence.
Article 8 stipulates: “This law may be applicable to foreigners, who outside PRC territory, commit crimes against the PRC state or against its citizens, provided that this law stipulates a minimum sentence of not less than a three-year fixed term of imprisonment for such crimes; but an exception is to be made if a crime is not punishable according the law of the place where it was committed.”
Other countries, especially those that emphasize protecting human rights, rarely have such an offense on their books, which makes it difficult for China to legally pin that offense on a foreigner.
However, because Taiwanese are not foreigners in China’s eyes, if Taiwanese who in Taiwan advocate Taiwanese independence or even criticize the Chinese government by word or deed, travel to China, they could be arrested and sentenced for the offense of instigating and actively participating in the subversion of Chinese state power.
This is why Taiwanese should throw their strongest support behind Lee Ming-che and also why the government must stop hiding its head in the sand — kowtowing to an authoritarian government will only result in more and greater injustices.
Wu Ching-chin is an associate professor at Aletheia University’s law department.
Translated by Perry Svensson
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