There is a saying in Chinese about tossing out a brick in order to attract jade (抛砖引玉). It means to make some statement of possibly mediocre quality in the hope that it will attract a high quality response. My blog post of yesterday on the Luo Daiqing case was just such a brick, and it has elicited a nice piece of jade from reader Kazuaki Shimazaki, offering a different (and carefully documented) legal interpretation of what’s going on. When I first read his comment (which I am reproducing here because it deserves a separate post), I thought that he was definitely right and that my earlier analysis had been wrong, but on reading the relevant rules more closely, I’m now not so sure. Here is his comment below, with my comments interpolated in italics. For reader convenience, I’m adding some links to his comment that were not in the original.
Fairness obliges me to dissent here. It is not a work of constitutionalism or human rights, but it is defensibly consistent with the criminal statute and its judicial interpretation. The relevant lines (in Chinese for brevity are):
（二）… 辱骂 … 情节恶劣的；
plus the clarification in the Joint Interpretation on Internet Speech Crime
第五条利用信息网络辱骂 … 情节恶劣，破坏社会秩序的，依照刑法第二百九十三条第一款第(二)项的规定，以寻衅滋事罪定罪处罚。
with 情节恶劣 as clarified in Joint Interpretation on Causing Disturbances:
第三条 … 辱骂 … 破坏社会秩序，具有下列情形之一的，应当认定为刑法第二百九十三条第一款第二项规定的“情节恶劣”：
（一）多次… 辱骂… 他人，造成恶劣社会影响的；
If it is (4), there would at least be a claim about 起哄闹事 (raising a commotion) and 公共秩序严重混乱 (serious disruption of public order). Such phraseology was not in the judgment. The term 恶劣社会影响 is. So, it is (2).
This is not correct. The claim of 起哄闹事 (raising a commotion) does appear in the judgment, in the paragraph in which the court announces its findings, immediately before the paragraph announcing the sentence. By contrast, the term 辱骂 (“berate”), which Kazuaki discusses below, does not appear in the judgment. Thus, a key term from subparagraph (4) does appear, while a key term from subparagraph (2) does not appear. This is why I’m not convinced that Kazuaki is right, and am not quite ready to give up the theory that Luo was sentenced under subparagraph (4).
Kazuaki is, however, correct to note that the phrase 造成恶劣社会影响 (creating an odious social influence) does appear in the judgment. This exact term appears in Art. 3(1) of the Joint Interpretation on Causing Disturbances, which is an interpretation of subparagraph (2) of Article 293 of the Criminal Law. That’s why I’m not convinced that Kazuaki is wrong. I’m still on the fence.
The key word is 辱骂, which ChinaLawTranslate translates to “berate”. They may be playing it conservative (by eliminating qualifiers), but the second glyph by itself is “berate” (speak in a critical way vehemently/loudly/angrily). The first glyph serves as an adverb, for “insultingly”. So basically it is vehement critical expression that damages dignity and reputation.
You can see the emphasis on 40 times, to satisfy “多次” (multiple times). They also mentioned “丑化国家领导⼈形象” (twisted the image of state leaders) and “侮辱国家领导⼈” (insult of state leaders). Well, OK, uh, at least he wasn’t praising them and the pictures are not very dignified. They did also mention 虚假 (false), but that may just be to defeat any justification by claim of Truth.
The court couldn’t seem to make up its mind what the actual offense was and who or what was the victim. Sometimes it said “vilifying (literally, ‘uglifying’) the image of state leaders” (丑化国家领导人形象); sometimes it said “vilifying the image of the state” (丑化国家形象); a single time, the court mentioned distributing pictures “insulting to state leaders” (侮辱国家领导人). Note again that the court never mentioned the key term from subparagraph (2) that would have to apply in order to make it stick: 辱骂 (“berate”). Moreover, the object of the berating can, under the law, only be a person (他人). All the language about insulting the state is, under subparagraph (2), legally irrelevant.
For the 破坏社会秩序 part, the Chinese allows the interpretation that 辱骂 by itself is a means of doing so (a possibility ChinaLawTranslate turned into a certainty in its translation). But in this case, they might have an independent base which may explain why he was picked when the witness, a Mr. M (马某), was not, though he used to put up similar posts.
The court’s use of 破坏社会秩序 (sabotaging social order) does not help us choose between subparagraph (2) and subparagraph (4), because it appears in the chapeau of Article 293 as a general requirement for the crime under any of the four prongs.
It would seem Mr. Luo impersonated Mr. M when putting up his “insulting” pictures. In addition to the base wrongness of impersonation, in China such pictures risk both legal and social (from “patriots”) liability. If, for example, Mr. M got hit by administrative or criminal sanctions for the acts of Mr. Luo, there would be a clear perversion of justice that would harm social order. It would also conform with a layman’s plaintext read of 情节恶劣.
Perhaps, but that didn’t happen.
So, if you ignore the part all this could be avoided if greater weight was given to the Constitution’s freedom of speech provision, it is at least statutorily defensible.
For the public part, it’s not part of the 293(2) definition. Second, as a matter of fact, Chinese do find their way to Twitter, including Mr. M (who claimed he had a never-used registration which was later deleted). Third, the matter of law is actually interesting because as far as I know, Chinese legislation (including subordinate) does not impose an obligation to refrain from viewing Twitter. If you can access Twitter in China without VPN (or other “get-around” tools), you are not liable.
Chinese administrative law concepts are heavily based on German-Japanese theories. Since there is no obligation yet the Great Firewall acts to prevent you from doing so, its action is one of 即時強制 (immediate enforcement, in German Unmittelbarer Zwang). The administrative body is allowed to take direct action, but you are not under obligation. So, is Twitter a public space in Chinese law (you are under no obligation to not go there … the State just seems to make it hard for you to do so)?
I agree that it is not per se an offense under Chinese law to go onto Twitter. Otherwise Hu Xijin and many Chinese diplomats would be punishable. And some Chinese inside of China manage to do it. But not many. So my argument still stands: it seems quite a stretch for the Chinese government to label as a public space a part of the internet that it strives mightily, and largely successfully, to keep the Chinese public out of.
For the final dissent, the point of double punishment is obvious but since public security offenses are a variant of administrative offence, and they are designed for quick play by non-legal professionals (police, in this case), for “either-way” offenses the chance of an honest misjudgment in fact or law is there.
While a certain restraint might be expected, if serious “mistakes” can’t be corrected, then the logical outcome is that suspects of either-way offenses will be held in criminal detention while the authorities cogitate on which one they want.
Further, if there are legal flaws in the public security punishment in the first place, what may have happened is that the punishment was technically invalidated on review. In any case, the judge took care to count it towards his criminal sentence, so at least in effect he wasn’t actually punished twice.
I agree with the last point. In theory, of course, there is a difficulty caused by the fact that the criminal sentence was not imposed in ignorance of the administrative sentence. If in some Platonic world, we could say he objectively “deserved” a sentence of six months less ten days, then he has been punished twice. But I think in this case Kazuaki’s take is correct as a practical matter.
Finally, we would have none of this confusion if the court would do its job as a legal institution and tell us under which precise prong of Article 293 Luo was convicted instead of being so vague.