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郭国汀论政治言论自由:限制与煽动罪(英文)

Freedom of Political Speech: Restriction on Sedition and Advection
   Guoting Guo
   On December 21, 2008,the Beijing policemen detained Mr. Hu Jia, [1]a young man who concerned AID and human rights, for his seditious advocate overthrow State Power. He is not the first or the last Chinese be arrested and sentenced for years for this so-called advocate overthrow State Power crime. To my knowledge, there are numberless were arrested and sentenced secretly since Hu Jingtao had become the president of China.[2] Speech means that the faculty or act of expressing or describing thoughts, feelings, or perceptions by the articulation of words. Sedition is speech, writing, or behaviour intended to encourage people to fight against or oppose the government. What is the meaning of freeing speech? What is the theory of freedom of speech? What is the restriction law and practice? Is there freedom of political speech in China? This paper tries to figure out these questions.
   I What is meaning of free speech ?

   Article 19 of International Covenant on Civil and Political Rights provided:
    (1) everyone shall have the right to hold opinion without interference.
    (2)everyone has the right to freedom of opinion and expression; this right includes freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
   (3) the exercise of the rights provided for in paragraph 2 of this Article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
   (a) for respect of the rights or reputations of others;
   (b) for the protection of national security or of public order, or of public health or morals.
   This definition make it very clear that free speech is free expression which is not absolutely right but subject to law concerned with respect of the rights or reputations of others and the protection of national security or of public order, or of public health or morals. In another word, freedom of political speech only concern with the national security or of public order, which involved with the law of sedition.
   International [3] and internal laws[4] all have similar clauses in name but the content are various. General speaking, in modern free and democratic countries their constitution law stipulate more detail rights of free speech[5], others provided quite simple only have one or two sentences[6]. The simplest one it must be Chinese constitution, which has only 9 words: Chinese citizen has the right of free speech.[7] However, the best one is the first amendment of United States Constitution, which in the Republican Party of Minnesota v. White [ 122 S. Ct. 2528 (2002).] is not without its larger implications. Five justices ruled in favor of the central importance of the
   First Amendment and the principle that political speech is at the core of democracy and must be unfettered.[8]
   Thus, the meaning of freedom of speech is very clear, in theory, everyone has the inherent right to say, write, print, deliver any opinion concern with political and public affair without interference by government, and only subject by law relevant the reputation and right of others and the security and public order. However, in practice, it is far from clear, each year hundred dissident were detained, arrested, sentenced into prison prove that it is really an important question should pay much attention to handle.
   If it takes regards the demands of a free and democratic society should include the element of incitement of violence. Perhaps, an ideal definition of sedition should require that 'the actus reus of sedition relate to a gathering of persons the unlawful purpose of which is to subvert or defy the functioning of the State by force or violence; and its mens rea to relate to an intention on the part of a participant so to subvert or defy the State by force or violence.'
   The implied constitutional freedom of political communication is not absolute. Laws that may restrict such communication may be valid if they are appropriate and adapted to achieving some legitimate end. What is appropriate will need to be tested in individual cases. No freedom is absolute; however, the restriction of free political speech should be clear and under rule of law. Otherwise the democracy society could not survive at all. Nowadays, the problem is not too free, but whether there is freedom of political speech.[9]
   
   II the Theory of free speech
   What are person, freedom, and liberty? Someone said that such concepts belong first of all to the vocabulary of Christianity, which accepted them intuitively. [10] other said that The Greeks fortunately had no Bible, and this fact was both an expression and an important condition of their freedom. Another expression and condition of freedom is the absence of sacredotalism[11]. Under Trajun of Rema, to be a Christian is an offence punishable death.In general, persecution of the Christians was rather provoked by the populaces than desired by the authority.In state where Christians has the power there would be no tolerance of other religions practices. The government of the United States of America is not in any sense founded on the Christian Religion - as it has in itself no character of enmity against the laws, religion or tranquility of Muslims;[12]
   
   A. the great Fighter of freedom of speech
   
   Socrates was prosecuted as an atheist and corrupter of youth and was put to death (399 B.C), he was judged by 500 Greece people. Jesus was sentenced to death and crucified by Pilate according to the will of crowd and Chief priests for his religious speech two thousand years ago.[13] In fact, both of them are fighter for freedom of speech and lost their life, for liberty or die.
   
   In China when Confusion became the general attorney of Ru Guo(506BC), only three month, he sentenced Shao Zhengmao, a famour scholar who was his opponents, to death for his speech [14]. Although Confusion is one of the respectable wisdom in China and have a great reputation for his contribution to Chinese culture, he didn't understand freedom of thought and speech at all. During the Qin dynasty (220BC), the first Chinese emperor put 460 scholars to death and burn all books of history and literatures for their criticize of public affairs[15]. In Ming Dynasty (1200 AC), emperor Zhu Yanzhang, killed thousands Chinese intelligence with their sibling and family for their speech[16]. In Qing Dynasty,(1644 to 1780 AC) the first four emperors hold on hundreds sedition cases and killed more than ten thousands intelligences and their family.[17] Which scare and horror Chinese people keep silence for two hundred years. However, compare with the communist regime after 1949, all formal evil put together cannot reach a small part of the communist evil at all.
   
   B. The original of liberty
   1. Greece and Roman
   
   The notion of rights in western codes is more dependent on Greek thought. There are numbers of philosophy contribute great deal to the idea of freedom of men. In the later Roman Republic and the early Empire, no restrictions were imposed on opinion . The general rule of Roman policy was to tolerate throughout the Empire all religions and all opinions. Plato posed the distinction between law and force, explained the essence of justice. By nature permit us to found law on justice and not on force or coercion. [18] Greece and Rome were the originators of liberty of thoughts and discussion. For this freedom of spirit was not only the condition of their speculations in philosophy, their progress in science, their experiments in political institutions; it was also a condition of their literature and art excellence. Their assertion of the principle of liberty would place them in the highest rank among the benefactors of the race; for it was one of the greatest steps in human progress. [19] Ionia in Asia minor was the cradle of free speculation. The history of European science and philosophy begins in Ionia, early philosophers by using their reason sought to penetrate into the origin and structure of the world.[20]

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