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26 Hong Kong L.J. 210 (1996)
Sedition and Political Dissidence: Towards Legitimate Dissent in China

handle is hein.journals/honkon26 and id is 234 raw text is: SEDITION AND POLITICAL DISSIDENCE: TOWARDS LEGITIMATE DISSENT IN CHINA? H L Fu* This article reviews the application of laws against sedition in China and, in particular, recently publicised applications of these laws against two leading political dissidents in China. This analysis is placed within the context of a preliminary review of the development of laws against sedition principally in the United States. It concludes that it is not the abuse of China's anti-sedition laws, as laws, which we need to be most concerned about. The more crucial problem relates to the political context, influenced often by international factors, which shapes decisions to use these laws. This context is not simple, It includes a fundamental (commonly unreasonable) 'fear factor' that systemati- cally drives politically oppressive legal measures. A significant lesson to be drawn from the historical review of the development of laws against sedition is that that this fear factor has been crucial in most deliberately oppressive uses of such laws in the United States. China's treatment of political dissidents should be informed by this recognition. The background Early British developments Sedition was a Star Chamber creation. It was an innovative and expedient instrument to quash government critics.' The offence .of seditious libel was based upon the presumption that those who did not share the government's beliefs 'must regard its attempt to propagate those beliefs as tyrannical, and to be disobeyed.' Thus 'anyone who attempted to persuade others that the government's methods were profoundly wrong must intend the natural conse- quences of his acts, which would be rebellion.'2 The offence postulated that utterance might alone cause harm to the sovereign. 'An attack on the dignity or respectability of authority was deemed to undermine its authority and to * Assistant Professor, Department of Law, City University of Hong Kong. The author thai-ks Dr Richard Cullen, Mr Wang Chengguan, and an anonymous referee for their comments on the paper, and Ms Choice Choi, Ms Claire Wong, and Ms Sally Yam for their research assistance. Thomas G Barnes, 'Star Chamber and the Sophistication of the Criminal Law' (1977) Crim LR 316; David Clark, 'Sedition and Article 23' in Peter Wesley-Smith (ed), Hong Kong's Basic Law: Problems & Prospects (Faculty of Law: University of Hong Kong, 1990); Philip Hamburger, 'The Development of the Law of Seditious Libel and the Control of the Press' (1985) 37 Stanford LR 661; Michael Head, 'Sedition - Is the Star Chamber Dead?' (1979) Crim LJ 89; Judith Schenck Koffer and Bennett L Gershman, 'The New Seditious Libel' (1984) 69 Cornell LR 816; and William T Mayton, 'Seditious Libel and the Lost Guarantee of a Freedom of Expression' (1984) 84 Columbia LR 91. 2 C S R Russell, 'Sedition in a Democratic State' (1965) 13 Political Studies 372.

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