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Freedom of speech defence bound to fail

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Using constitutional principles of freedom of speech to defend mainland activists charged with incitement to subvert state power will probably continue to be as unsuccessful in the future as it has proved to be in the past, according to a senior researcher of an organisation that lobbies the central government over political prisoners.

The reason, Joshua Rosenzweig of the Dui Hua Foundation said, was such rights were balanced by obligations to the state, and in any event courts would not apply constitutional principles in criminal cases.

Rosenzweig was speaking at a conference organised by the Centre for Chinese Law at the University of Hong Kong on Saturday.

The freedom-of-speech strategy was one that lawyers had focused on in the past in defending charges of subversion, but it failed because the courts 'never really engage' with a 'rights discourse', Rosenzweig said.

Furthermore, mounting a successful legal defence on a subversion charge under the current system may be impossible because 'it is, at heart, a political crime'.

Defence lawyers have argued the need for legislative reform, saying that until the laws on inciting subversion of state power 'establish a more concise boundary between free expression and national security', the courts will continue to apply them arbitrarily, and people would have no clear understanding of how their statements could be construed as criminal acts, Rosenzweig said.

The crime of incitement to subvert state power has put many activists in prison in recent years. On Christmas Day, writer and former professor Liu Xiaobo was sentenced to 11 years in prison for co-drafting Charter 08, a manifesto that calls for a range of political reforms, and publishing a series of online pro-democracy articles.

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