January 10, 2018
Since 2009 Wu Gan has arguably been the best known, and certainly the most recognizable, activist in China for his bold and innovative tactics. Wu Gan was arrested on May 19, 2015, and looking back, he was in fact the first detainee of what became the 709 Crackdown. As with all other 709 detainees, he was held in secret detention for months, where he was tortured. He was tried behind closed doors on August 15, 2017, without a verdict. On December 26, the court sentenced him to eight years in prison for “subverting state power.” The evidence against him were 12 occasions where he had campaigned, in his colorful style, to correct injustice in one form or another. According to his lawyer, Wu Gan rejected a deal with the authorities which would have given him a suspended sentence if he were to admit guilt. Following Wu Gan’s sentence, his defending counsel filed the following appeal. — The Editors
Appellant: Wu Gan (吴淦). Male. Han ethnicity. DOB: February 14, 1972. Place of birth: Fuqing city, Fujian Province. Citizen ID: 3502061972XXXX2033. Senior high school education. Administrative officer at the Beijing Fengrui Law Firm (北京锋锐律师事务所). Currently being held at the Tianjin No. 2 Detention Center (天津市第二看守所).
Defending counsel: Ge Yongxi (葛永喜), Guangdong Anguo Law Firm (广东安国律师事务所); Yan Xin (燕薪), Beijing Laishuo Law Firm (北京来硕律师事务所)
The appellant lodges this appeal to overturn the Tianjin No. 2 Intermediate People’s Court’s (2016) Criminal Judgement No. 146
Appeal request: Vacate the Tianjin No. 2 Intermediate People’s Court’s (2016) Criminal Judgement No. 146 and render a judgement of not guilty.
Facts and Grounds:
i. Subjective Factors
Although the appellant “in court acknowledged his thoughts of subverting state power,” and expressed a wish to endeavour toward this end, thought does not constitute criminal conduct. If the verbal expressions of the appellant are sufficient to constitute a crime, it should also be considered that the appellant in court also said: “subverting state power is the legitimate right of the citizen; subversion of state power shouldn’t even be a crime in the first place.” In the mind of the appellant, he is simply exercising his right to subvert state power — and so what crime has he committed?
ii. Objective Factors
When rendering judgement on whether an individual’s conduct is criminal, it is vital to examine the character of their actions. The actions of the appellant — whether speech made via Weibo, WeChat, Twitter, his three “Guides,” interviews given to foreign media, or audio lectures — all fall under the rubric of legitimate exercise of freedom of speech. Similarly, the appellant’s participation in 12 noted cases — which involved ‘stand-and-watch’ protests, appealing in support of a cause, raising funds, or expressing himself via performance art — are also all exercises in freedom of expression, provided for in his civil rights of: the right to criticize and make suggestions; the right to lodge appeals and complaints; the right to report and expose malfeasance, and so on. These rights are innate, and are provided for in the constitution and law of the People’s Republic of China. The exercise of these rights has nothing at all to do with so-called subversion of state power. Even less are the appellant’s actions implicated in any form of attack on the state regime or the national system of government established in the constitution.
iii. The Object of the Crime
The concept of the “state power” is a macro structure, and refers specifically to the actual rule of the central authority. Local political authorities, local judicial organs, and individual administrative or judicial officials, are not identical with the “state power.” Questioning, criticizing, reporting misconduct, and bringing complaints against local political and judicial organs or individual officials does not constitute an attempt to harm the state power.
iv. Considerations of Harm to Society
All speech acts by the appellant, as well as his participation in the 12 cases, did not cause the harm to society that is required in criminal law for the acts to constitute crimes. Not only did the speech acts not cause any harm at all to society, but they inspired a sense of citizenship and rights consciousness in members of the public, as well as effectively exercising supervision over the work of local governmental and judicial organs, thus causing injustices to be righted. What greater contribution to the public welfare could there be?
v. Regarding the Crime of ‘Subverting State Power’ Itself
a. What Is the State Power in Question?
“State power” can be defined in both narrow and broad senses. The broader definition would refer to the manner in which state power is expressed in political sovereignty at the level of a nation with defined geographical boundaries. This encompasses all of the authority of a state, including the tripartite legislative, administrative, and judicial powers. The meaning of “state power” under this definition is simply a concrete manifestation of political sovereignty.
The narrow definition of state power refers to the central or federal administrative branch of government within the framework of a national polity.
b. Who Can Subvert the Sovereignty of the People?
In the current era, nation states are countries under the sovereignty of the people. The second article in the constitution of the People’s Republic of China stipulates: “All power in the People’s Republic of China belongs to the people.” This sentence sufficiently demonstrates that state power in China has to be established on the basis of popular sovereignty. Given that sovereignty belongs to the people, then of course the people have the right to subvert the regime. It is simply a matter of the methods used: whether peaceful elections, non-violent revolution, violent revolution, or other means. Looking to political experience and practice around the world, it’s only the dictatorships that grasp onto power for decades on end who in actual fact subvert the sovereignty of the people. This is why no one has heard of ordinary citizens in a civilized country being charged with the crime of subverting state power. If sovereignty does not belong to the people, then the people’s subversion of state power in order to return sovereignty to the people is right and proper.
c. State Power is Not Equal to a Political Party’s Regime
In electoral democracies, state power in its narrow definition is typically held at any one time by one or a few political parties — thus the idea of a ‘ruling party’ or a coalition of parties that govern. The matter of which political party power is to reside in should be determined in competitive and free elections. It ought not be that a particular party seizes power for itself exclusively, not allowing any other person or political party comment on the matter. Even if particular citizens offer dissent to the regime of a particular party, or work in concert with one another to subvert it, these are all rights within the ambit of popular sovereignty and have nothing to do with subverting the power of the state.
d. The Socialist System and State Power
The social system to be adopted is a question of the ideological and political platform of a party. No political party has the right to inextricably bind its own ideology and system and theory of governance to state power writ large, as though it were the unchanging and eternal standard. Whether a political program is accepted and supported by the public ought to be a matter decided by the public at large. Thus, whether one opposes or even attempts to overthrow the socialist system should not be a constitutive element in the determination of subversion of state power. Language referring to the ‘socialist system’ should not appear in the statute addressing this crime.
e. Only Violent Subversion Can Constitute a Crime
Surveying the legal practices of every constitutional democracy in the world today, it is clear that only when an individual resorts to violence in an attempt to subvert the regime or government does the act constitute a crime. The use of peaceful measures — even when intended to subvert a regime or government — are simply not crimes. Even in the basic theories of political science, the people possess the natural and legitimate right to use violence to overthrow a tyrannical dictatorship. Is not the establishment of the Chinese Communist Party’s government itself just such an example from history?
Given all of the above, the appellant believes that — whether on the basis of the natural rights each individual is endowed with, or the common sense of jurisprudence and political science — the Tianjin Intermediate No. 2 Court should revise its decision against the appellant to not guilty. The appellant also suggests that the National People’s Congress revise the Criminal Law to limit the applicable scope of Article 105, relating to subversion of state power — or simply repeal the criminal category in its entirety.
Tianjin Higher People’s Court
Appellant: Wu Gan
Defending counsel: Ge Yongxi, Yan Xin
January 4, 2018
The Twelve ‘Crimes’ of Wu Gan the Butcher, China Change, August 13, 2017.
Why Is Wu Gan ‘The Butcher’ So Important? Mo Zhixu, August 16, 2017
Wu Gan’s Statement After Being Sentenced to Eight Years in Prison for ‘Subversion,’ China Change, December 26, 2017.
My Pretrial Statement, Wu Gan, August 9, 2017.
Wu Gan the Butcher, a profile by Yaqiu Wang, July, 2015.
Bill of Indictment Against Rights Activist Wu Gan, January 12, 2017.
Wu Gan’s “three Guides” in Chinese:
Guide to Butchering Pigs (《杀猪宝典》)
Guide to Drinking Tea (《喝茶宝典》)