China's Battle Over the Right to Criticize

Posted May 1, 2009

In recent weeks, China has been abuzz with talk about protecting the rights of citizens to criticize the government. To date, the Chinese media has given extensive coverage to three separate cases involving the use of criminal-defamation charges to silence individuals who aired criticisms of alleged local government misconduct on the Internet. These press reports have generated considerable public sympathy for the victims of these abuses of power and may represent an initial push toward reforms that would create space for some—but likely not all—those who dare to voice opinions critical of the Chinese government.

The first case to come to light was that of 24-year-old Wang Shuai, who was put in detention on March 6. Police from Mr. Wang’s hometown of Lingbao City, Henan Province, traveled the 1,200 kilometers to Shanghai after he suggested in a satirical online post that officials had misappropriated funds designated to combat drought and were in fact carrying out policies that encouraged drought in order to drive down land values so that the government could pay farmers less compensation after requisitioning their land. Mr. Wang went online with his criticisms after getting nowhere in efforts to petition provincial authorities to investigate the land deals in Lingbao.

Following three days in a Shanghai detention center, Mr. Wang was transported in shackles to Lingbao, where he was held for five more days before being released on bail after police compelled him to sign a written confession. Officially, Mr. Wang was freed because police had “insufficient evidence” to continue holding him, but in reality his freedom had been secured only after his father agreed to cut down the family’s remaining fruit trees (thereby further reducing the amount they would be paid in compensation for their land).

After China Youth Daily reported Mr. Wang’s story on April 8, the effect was immediate. Public comments on the Internet, newspaper editorials, and opinion columns expressed strong support for Mr. Wang and criticism of Lingbao officials. The “Lingbao post” case became symbolic of the struggles faced by ordinary Chinese to obtain justice in a legal system that they often see—especially at the local level—as protective of the interests of the rich and powerful. In the face of this outpouring of support, provincial officials ultimately decided to step in to resolve the case. The head of the Henan Public Security Department, Qin Yuhai, issued a public apology, four Lingbao police officers were suspended and Mr. Wang was given compensation totaling around 784 yuan (about $115) for his eight days of incarceration.

Just as the resolution to Mr. Wang’s case was being announced, there emerged an even more scandalous case from the city of Ordos, in Inner Mongolia. In this instance, a 39-year-old nutritionist named Wu Baoquan had posted information that accused government officials there of forcing residents off their land, offering low compensation and then reaping outrageous profits by selling the land to developers. Police from Ordos detained Mr. Wu for 10 days in 2007, again traveling 3,000 km round trip to do so. When Mr. Wu continued posting and spoke to a journalist investigating the shady land deals, he was again arrested and charged with defamation.

Four months later, in October 2008, a court found Mr. Wu guilty of “distorting facts and posting comments online that hurled abuse and defamed others and the government” (emphasis added) and sentenced him to a year in prison. Mr. Wu appealed, and a new trial was ordered because of questions about the original court’s finding of fact. In February, after a new hearing in which no additional evidence was brought by the prosecution, Mr. Wu was released on bail while he awaited what he hoped would be an acquittal. Instead, the court issued a new conviction, this time sentencing him to two years in prison.

Mr. Wu’s fate was revealed by the press nationwide just as outrage over Mr. Wang case was reaching its peak. Once again, the response was immediate and strongly in support of Mr. Wu. It seemed clear to all that the court had stretched the law in convicting him of defaming the government and that the heavier sentence had been imposed as punishment of exercising his right to appeal. Again facing public pressure, the head of the Ordos Intermediate People’s Court initiated a formal review of Mr. Wu’s case on April 21, and indications are that his conviction may be overturned.

Meanwhile, in a third case, a 34-year-old forestry-bureau employee named Deng Yonggu faced trial on April 20, also as a result of criminal-defamation charges brought by authorities in Pengxi County, Sichuan Province. Officially, the complaint against Mr. Deng was a signed, 2007 Internet post in which he criticized his superiors’ handling of a reforestation project and labeled them “scum.” However, individuals with knowledge of the case indicate that the real reason for Mr. Deng’s detention was his public allegation that Pengxi officials had exaggerated the damage caused by the May 2008 earthquake in order to obtain greater relief payments from the central government. Given that Mr. Deng’s trial was held in the midst of the media attention paid to the Lingbao and Ordos cases, it will be interesting to see whether the court takes any of this public opinion into account in rendering its decision.

Though exposure of three separate criminal-defamation cases over the course of two weeks is certainly remarkable, it would be an oversimplification to blame a new, concerted effort to impose new restrictions on free speech in China. But the increased use of both civil- and criminal-defamation litigation to fight back against criticism in recent years is reflective of changes that have taken place in China over the past decade. Chinese state control of the media has long ensured that officials and institutions are rarely subjected to public criticism. But today’s media environment features a increasingly commercialized press with more editorial freedom and, especially, an expansive Internet that, while routinely censored, nevertheless provides an unprecedented platform for individuals to express opinions on a range of subjects. And for local officials, online criticism like that posted by Wang Shuai, Wu Baoquan or Deng Yonggu does not simply embarrass; if it leads to an investigation from above, it could mean the loss of a job.

But use of criminal-defamation charges in these cases is the wrong response, legally speaking. China is one of many countries that allow both civil- and criminal-defamation litigation, and its criminal penalties for the charge are among the heaviest in the world. If a Chinese court determines that a defendant charged with criminal defamation “fabricated facts” to defame another party and that there were “serious” consequences, it can impose a prison term of up to three years. Under most circumstances, criminal prosecution on charges of defamation should follow a complaint by the aggrieved party made directly to the court. Only in cases involving “serious threats to social order or national interests” does the law authorize use of police power and public prosecution.

The existence of this exception clause, with its vague standards of “social order” and “national interest,” is precisely what makes it possible for local authorities to mobilize law-enforcement officers to silence those whose criticisms threaten to cause embarrassment. The officials in Lingbao, Ordos and Pengxi claimed that serious damage had been done to the reputation of their governments. Under a fiscal system whereby police, prosecutors and even the courts are beholden to local governments for the bulk of their budgets, there is ample opportunity for the interests of the local officials and law enforcement to fall into a kind of natural alignment.

But international standards on the protection of free speech tend to give politicians, institutions and matters of public concern less protection for their “reputations” than is typically extended to individuals, and the angry response provoked by the recent defamation cases suggests that most Chinese would probably agree. It would not be surprising, then, to see a push to revise China’s criminal law to eliminate the exception clause in the defamation statute that enables such abuses. If this were to come to pass, it would be reminiscent of 2003, when a similar burst of media attention following the brutal death in detention of a young man named Sun Zhigang led to one of the most significant steps the Chinese government has ever taken to safeguard human rights: revocation of the “custody and repatriation” regulation allowing police in urban areas to detain and send home rural migrants who did not possess the proper household registration or residence permit.

All of this discussion of the importance of increased public oversight and channels for expression of criticism could not be more timely. In recent months, China’s law-enforcement agencies have been under fire for their own abuses, including a series of unexplained deaths of prisoners held in police-run detention facilities and questions about the use of psychiatric hospitals and so-called “black jails” to detain persistent petitioners who travel to Beijing in last-ditch efforts to seek justice. Even more recently, a major newspaper published shocking excerpts of an internal manual instructing “urban management” squads how to carry out beatings without leaving any marks.

Meanwhile, the State Council unveiled, with great fanfare, China’s first “National Human Rights Action Plan” for 2009 and 2010, hailed as a roadmap for the government’s continued efforts to safeguard human rights. A major part of this plan is its proposal to establish a national network for fielding citizen complaints, reflecting a recognition that public interests can be served by allowing more scrutiny over many areas of public concern, especially at the local level, and promoting, rather than restricting, criticism that exposes corruption or other misconduct.

This theme resonates with the outrage that has been expressed over the abuses in these defamation cases. But China’s leadership confronts a quandary in facing this demand for freer speech and more public oversight. The legitimacy of one-party rule is in large part premised on maintaining the stability that has enabled the rapid economic development of recent decades. Allowing unfettered criticism of the misconduct of local officials runs the risk of undermining the authority of the party. But at the same time, failing to harness public criticism and oversight in the service of exposing such misconduct carries serious risks, too. In a year when a series of sensitive anniversaries coincides with the impact of the global financial crisis on China’s economy, authorities in Beijing must be concerned that mishandling public anger over the slightest grievance could easily result in one of the tens of thousands of “mass incidents” that flare up throughout China each year.

To be sure, China’s constitution already explicitly grants citizens the right to criticize and make recommendations to the government, but as these and other cases have repeatedly shown, respect for individual rights is often ignored in the implementation of the law. If China were to remove the ability for the state to bring criminal-defamation charges against critics, it would be an important first step. Left unremedied, though, would be another provision in the criminal law that is routinely used for the same purpose: the law against “inciting subversion.” In prohibiting the “use of rumor, slander, or other means to incite subversion of state power or overthrow of the socialist system”—an offense punishable by up to five years in prison (or more, in “major” cases)—this law is arguably an even more explicit protection of the government’s reputation, this time on the grounds of safeguarding “national security.”

For more than a decade, Chinese authorities have been imprisoning individuals on the grounds of “inciting subversion” for expressing criticisms in print or online. Hu Jia, Gao Zhisheng, and Liu Xiaobo are just some of the dozens of people who are currently imprisoned or “disappeared” on these charges. None of them advocated overthrow of the government in any recognizable manner, but each did question some of the institutions and policies of the one-party state led by the Chinese Communist Party. Ultimately, there is little that distinguishes the abuse of defamation charges by local officials determined to stifle criticism and preserve their reputations from use of “inciting subversion” to stifle criticism of the party and the system as a whole.

All societies benefit by fostering public debate, even societies with “Asian values” or “Chinese characteristics.” Chinese authorities may feel they have an interest in allowing limited criticism to whistleblowers like Wang Shuai, Wu Baoquan, and Deng Yonggu as part of the effort to root out corrupt local officials, but one suspects that such freedom is unlikely to be extended to those who have criticisms to level at the broader political system and institutional weaknesses that enable such local abuses of power to routinely take place in the first place.

Joshua Rosenzweig is a researcher with the Dui Hua Foundation in Hong Kong.