The Norwegian Nobel Committee awarded this year’s Nobel Peace Prize to Chinese dissident Liu Xiaobo, a democracy advocate currently in prison for seditious speech. The committee also took a shot at China, calling the government, “in breach of … its own provisions concerning political rights.” Do Chinese citizens have a right to free speech?
Not really. Article 35 of the Chinese constitution promises the right to “freedom of speech, of the press, of assembly, of association, of procession and of demonstration.” But the provision has absolutely no teeth. For one thing, the constitution also prohibits doing anything contrary to state interests, which seems to include dissent. Second, and more fundamentally, the rights enumerated in the Chinese constitution are not enforceable unless the national legislature makes them so by passing a supplementary law. The ruling Communist Party can violate Article 35 with impunity, because the courts won’t apply it against the government. (There is no Chinese equivalent of Marbury v. Madison.)
There was a brief moment in the last decade when many observers felt the situation might be changing. In 1990, a student’s identity and test scores were stolen by a classmate, who used them to get into college. Eleven years later, the Supreme People’s Court ruled that the thief violated Qi Yuling’s constitutional right to an education. It was the first time the court had suggested that a citizen could avail herself of a constitutional right. Then, in 2002, new Prime Minister Hu Jintao advocated going even further and turning the constitution into a Western-style guarantor of individual liberties.
Sensing increasing liberalization inside the Communist Party, dissidents became more audacious. The movement culminated in 2008, when Liu Xiaobo published a set of democratic and human rights reform proposals with the support of 300 prominent intellectuals. The move was too bold. Liu was arrested the day before his “Charter 08” went public, and the People’s Supreme Court withdrew the Qi ruling 10 days later. After a year of detention, Liu was charged with “inciting subversion of state power.” Liu’s trial lasted two hours, which is actually an eternity by Chinese standards. Dissident Tan Zuoren was convicted on the same charge in just 10 minutes.
Not every Chinese dissident who speaks out of turn winds up in jail. Other penalties include a stern rebuke, losing your job, brief detention, or re-education through labor. (It sounds bad, but it’s really just extrajudicial imprisonment for a maximum of three years.)
In defense of their habit of prosecuting dissidents, Chinese officials might argue that the United States also limits free speech. The U.S. Supreme Court has carved out exceptions to the First Amendment for incitement to crime, causing panic, and, in limited cases, sedition. The primary difference is that U.S. courts are more independent of the ruling party, and the laws restricting speech are generally too specific to be used as political weapons.
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Explainer thanks Jacques deLisle of the University of Pennsylvania and Corinna-Barbara Francis of Amnesty International.
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