Wed, Dec 06, 2017 - Page 8 News List

Lee’s trial, conviction set perilous precedent

By Wu Ching-chin 吳景欽

Taiwanese human rights advocate Lee Ming-che (李明哲) was last month found guilty of state subversion by a court in Yueyang in China’s Hunan Province. Lee received a five-year custodial sentence and was deprived of his political rights as a “Chinese citizen” for two years.

Article 8 of the Criminal Law of the People’s Republic of China (PRC) stipulates that “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 to the law of the place where it was committed.”

However, state subversion is not a crime in most nations, especially those that place a strong emphasis on human rights. In practice, it is difficult for the Chinese authorities to impose Chinese domestic law on foreign citizens residing abroad.

While China continues to insist that Taiwan is part of its sovereign territory, in reality its jurisdiction does not extend to Taiwan. For this reason, Taiwanese residing in Taiwan who express opinions that damage Chinese state power had in the past never been prosecuted, tried and sentenced by a Chinese court.

In 2009, then-president Ma Ying-jeou’s (馬英九) administration signed the Cross-Strait Joint Crime-Fighting and Judicial Mutual Assistance Agreement (海峽兩岸共同打擊犯罪及司法互助協議) with China, which is founded upon Beijing’s so-called “one China” principle. Despite the existence of this agreement, it is still impossible to deny that both nations’ legal systems are fully independent of each other and Taiwan’s legal system is in no way subservient to China’s. The reality is that China does not have any legal jurisdiction over Taiwan whatsoever.

Lee’s case is unique in that it was the first time that the machinery of China’s legal system crossed this “red line” and used the crime of state subversion against the human rights that a Republic of China (ROC) citizen has in Taiwan, and to not only try and sentence him using the vocabulary of the rule of law, but also to use Article 56 of China’s Criminal Law to deprive an ROC citizen residing in China of his “political rights” there — rights that Lee, as an ROC citizen, never possessed in the first place.

This means that from now on, all Taiwanese who through their words or actions in any way criticize the Chinese Communist Party (CCP) while residing in their own nation can be caught up in China’s legal dragnet for the crime of subverting or inciting damage to Chinese state power.

This means that once an ROC citizen who has previously been critical of the CCP enters Chinese sovereign territory, they will immediately be in danger of being placed under arrest, charged and tried for the crime of state subversion. This will be a frightening prospect for many Taiwanese.

Upholding one’s democratic right to free speech while in Taiwan is now a crime in China, meaning that Taiwan’s quasi-independent status is under threat. Under Chinese law, Taiwanese are now considered to be Chinese citizens: This is a very worrying development.

Wu Ching-chin is an associate professor in Aletheia University’s law department.

Translated by Edward Jones

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