On 8 October 2010, for the first time in history, the Nobel Peace Prize Committee awarded the Prize to a citizen of the People’s Republic of China (PRC) — Liu Xiaobo. Instead of celebrating the result of decades of efforts, the government of the PRC denounced “a bunch of clowns”: “Obviously, the Nobel Peace Prize this year is meant to irritate China, but it will not succeed. On the contrary, the committee disgraced itself.”¹ The Chinese Communist Party (Party) not only prevented the laureate, then serving a sentence of eleven years in the Jinzhou (锦州) (Liaoning, 辽宁) jail, from going to...

When Liu Xiaobo was sentenced to eleven years’ imprisonment by the Beijing Number One Intermediate People’s Court on Christmas Day 2009, the case focused the world’s attention anew on China’s laws against “inciting subversion of state power.” The lengthy prison term — the longest known since the crime entered the books in 1997 — shocked observers for its harshness and left people scouring the court’s verdict for some clue, some justification of the conviction as anything other than a politically motivated punishment passed on a longtime critic of the Chinese Communist Party (hereafter “CCP” or “Party”).

The search for a legal explanation...

As the defense lawyers in several politically sensitive cases, we would like to share our view with people interested in China’s criminal justice system on problems that we have encountered in defending political offenders in Chinese courts. In this chapter, we evaluate both the laws and the enforcement of those laws with the aim of providing constructive criticisms for reforming the criminal justice system in China.

This section introduces some of the political cases that we have defended.

Yao Fuxin was a worker of Liaoyang Metal Alloy Factory, an iron factory in Liaoyang City. Because of the corruption of senior...

The trial of Liu Xiaobo was held on 23 December 2009, a good year after he had been detained.¹ While the authorities claimed that it was an “open trial,” not even Liu Xiaobo’s wife Liu Xia was allowed to attend. Neither were many others allowed in, whether they had come with the intention of witnessing how the courts of this country tried a “political offender,” or as friends of Liu Xiaobo, or just as ordinary people: all were excluded from this trial.² News reporting about Liu’s trial was also strictly controlled by the government: except for an extremely brief notice...

Dissident intellectual Liu Xiaobo is now serving an eleven-year prison term for his role in the drafting and distribution of Charter 08, and the awarding of the 2010 Nobel Peace Prize to him has been denounced by the Chinese authorities as a “political farce.”¹ Yet many of the points made in the Charter have clear echoes in recent remarks on political and legal reform by academics and government officials, including Premier Wen Jiabao (温家宝) himself. This raises important questions about the boundaries of tolerance for proposals on political reform and discussion of politically sensitive issues more generally. An analysis of...

In terms of the text itself, Charter 08 is a moderate proposal using ideas and concepts borrowed either from legal and political documents of the Chinese Communist Party (hereafter “CCP” or “Party”) or from well known international human rights documents universally accepted in the contemporary world, such as Universal Declaration of Human Rights (United Nations), Declaration of Human Rights (France) and Declaration of Independence (USA).¹ Even the most controversial concept of “federal republic of China,” which has been singled out by the CCP government as a proof of the “crime of subversion,” was also part of the early CCP political...

2008 was as auspicious as it was ominous for China’s national developments. The Olympics marked Beijing’s long-awaited “coming-out” party and showcased its tremendous strengths to the world. But for Liu Xiaobo and fellow signatories of Charter 08,¹ a political manifesto released online on 10 December 2008, the subsequent crackdowns and imprisonment of Liu appeared to signal a turn for the worse for the country’s democratic development. Still, China put on another spectacle in the 2010 Shanghai World Expo and proved yet again it could achieve all that without democracy.

Indeed, what is democracy for when a government has managed to...

After the release of Charter 08 on 10 December 2009, many comparisons have been made between this Chinese manifesto and the Czechoslovak Charta 77 (hereafter “Charta 77”). The connection between the two is obvious: Charter 08 makes a direct reference to Charta 77 and the relation between the two is in fact suggested by the very title of the Chinese document. In just about every report in the Western media about Charter 08, the connection with Charta 77 has been duly noted and pointed out.

However, the comparisons in these newspaper and magazine articles seldom venture beyond superficial declarations of...

The publication of Charter 08 and the subsequent prosecution of Liu Xiaobo symbolize two significant developments in China during the reform period. The first is the rising rights awareness among ordinary citizens and their determination to claim and assert their rights through political and legal channels. The bottom-up demand for rights from civil society originates from economic and social changes; it is also intentionally promoted by government-initiated legal reform. The second significant development is the stagnation of political and legal reform relative to social and economic changes, the political failure to provide an institutional solution to social and economic conflicts,...

Rebecca MacKinnon’s above observation about the possible constitutional meaning of Charter 08 may well be accurate if one thinks of that meaning as lying exclusively in the degree to which Charter 08 does or does not foretell China’s constitutional future. But meanings come in a variety of packages. In this chapter, we will see that Charter 08 may have a constitutional meaning that is not captured by the simple substance of its predictions.

The framework for this exploration will be that of what we will call “popular constitutionalism” — an often overlooked aspect of constitutionalism that is not captured in the...

If, fantastically, an opinion poll on “Do you support Charter 08?” could be conducted in China today, its results would have to be read bearing in mind that you cannot look up “Charter 08” on the domestic Internet, and that any expression of support for it may result in state persecution. Attempts to measure the impact of or support for the Charter would therefore be inherently limited,¹ even though naturally, we will continue to ask ourselves how strong such support is.² Charter 08’s significance lies not in its measurable impact or support but in its proposition of a peaceful kind...

The conferment of the Nobel Peace Prize on Liu Xiaobo caused a big stir within the Chinese dissident community and around the world. Thorbjørn Jagland, the Norwegian Nobel Committee Chairman, said Liu was a symbol for the fight for human rights in China and the government should expect that its policies would face more scrutiny. “China has become a big power in economic terms as well as political terms, and it is normal that big powers should be under criticism,” Jagland said.¹ While liberal intellectuals and non-governmental organization (NGO) activists in China said they were encouraged by the award, the...

After it established itself as the ruling power in 1949, the Chinese Communist Party (hereafter “Communist Party” or “Party”) immediately launched a movement to detect and repress counter-revolutionaries. In July 1950, the Government Administration Council and the Supreme People’s Court jointly issued the Regulation Concerning the Suppression of Counter-revolutionary Activities and in February 1951, the Central People’s Government promulgated the Regulation on Punishing Counter-revolutionaries. By the end of the “Great Cultural Revolution,” the practice of criminalizing “counter-revolution” had not only become entrenched in the law; it was also an important part of political and social life.

In the 1979 Criminal...