Thursday, December 27, 2012

Kneeling Down to Stand Up: Petitioning China’s Premier

Petitioners kneel on a highway in Yunnan Province in 2010. Photo credit: Xinhua

Earlier this month, the national newspaper Legal Weekly published an essay by commentator Xie Yuhang that reflects on the phenomenon of “kneeling petitions” in light of a recent incident involving Premier Wen Jiabao.

Following a deadly September earthquake in Yunnan Province, Wen visited the epicenter in Yiliang County to inspect the damage and recovery efforts. There, his motorcade was blocked by a group of farmers seeking redress for local land seizures. Wen reportedly stopped to speak with the petitioners and promised that their concerns would be handled to their satisfaction. More than two months later (shortly after the close of the 18th Party Congress), one of the petitioners, Liang Yonglan, was abruptly taken into custody by local police and given a seven-day administrative detention for “disrupting public order.” She was released the following day after paying a 1,000 yuan bond, but soon thereafter the detention order was revoked and the county police chief dispatched to deliver an apology.

Xie’s essay follows a conventional praise-and-blame model in which the patient and generous manner displayed by China’s premier is contrasted with not only the particular attempts by Yiliang police to punish Liang but also with the more general tendency of some local officials to punish petitioners on the pretext of “abnormal petitioning.”

Aside from its rather fawning portrayal of Premier Wen, Xie’s essay accepts, rather uncritically, the value of petitioning as an institution. The system of “letters and visits,” which offers citizens a chance to protect their rights by communicating grievances to higher authorities, serves many functions in the Chinese governance system. As one of many alternative channels for dispute resolution, the petitioning system helps reduce the burden on China’s courts. In theory, it can also help to resolve disputes before they turn into violent or destructive “mass incidents.” And by channeling information about local corruption or misconduct upward through the bureaucracy, it gives senior officials an opportunity to deal with problematic cadres.

But the petitioning system is also widely seen as being overburdened and ineffective. Observers have long noted that the system tends to push petitioners towards larger and more dramatic actions in hopes of getting the attention of high officials, a tendency reflected in the popular saying: “A big disturbance leads to a big solution, a small disturbance leads to a small solution, and no disturbance leads to no solution.” And because petitioning activity tends to reflect badly on the performance of local officials, there is a natural incentive for them to use a mixture of “carrot and stick” techniques to prevent local grievances from reflecting poorly upon their chances of promotion.

In practice, the petitioning system serves more often as a way of containing grievances (rather than resolving them), in part by fostering expectations of the possibility for official intervention and remedy. If the system functioned as intended, it might not be necessary for someone like Liang Yonglan to take the drastic step of blocking the premier’s motorcade to resolve local problems. Xie may be right that kneeling petitions are designed to minimize risks of retaliation and that Liang’s “kneeling petition” (and the act of petitioning in general) reflects a degree of faith in senior leaders, but one can also read the incident more cynically as a calculated strategy designed to maximize publicity and pressure. As another commentator opined in response to a previous case of kneeling petitioner Zhang Yanhui: “good fortune wasn’t won through her humiliating kneeling but relied instead on the expanded channels for online oversight and the questioning of government brought about by the microblog era."

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Full Trust Lies Behind Kneeling Petitions

Xie Yuhang, Legal Weekly
December 4, 2012

When Premier Wen Jiabao arrived in Yiliang County, Yunnan, to inspect the damage after the September earthquake, Liang Yonglan and dozens of other local residents knelt at the village entrance to petition and present their complaints about land seizures to the premier. On November 19, Liang Yonglan was given a seven-day administrative detention by local police on what was called suspicion of disrupting public order. Afterwards, on the 20th, she was released ahead of schedule. Recently, the Zhaotong Public Security Bureau revoked the administrative detention order against Liang Yonglan, and Yiliang County Deputy Mayor and Public Security Bureau Chief Li Jiajun went to Liang Yonglan’s home to apologize.

Kneeling in petition is also a kind of petitioning. Petitioning makes many people unhappy, and thus makes the fate of petitioners rather unfortunate. If you want to petition but also minimize as much risk as possible, kneeling in petition may be a way to make the best of a bad situation.

It’s easy for petitioners to get hit with all sorts of “labels.” Certain locations have issued comprehensive regulations concerning various types of “abnormal petitioning” behavior—such as wearing clothing upon which one’s grievances are written, holding sit-ins, self-maiming, attempting suicide, carrying banners, and displaying petition documents—all of which are equated with deliberately causing trouble and are prohibited. Given this exhaustive list, as long as one petitions, it will be difficult not to “step on a landmine.” Kneeling in petition is probably the best way of avoiding punishment on pretext because it doesn’t come across as malicious or confrontational and shows respect and trust in leaders. Perhaps it’s because of this that Zhang Yanhui, a woman from Huaiyang, Henan, who knelt in petition before [her local] county party secretary, was to some extent “successful.”

But kneeling in petition before the premier is not a small matter. Even if Liang Yonglan were bolder, she wouldn’t dare kneel before the premier’s vehicle if she didn’t have a deep trust in Wen Jiabao.

The facts prove that Liang Yonglan and the others made the right judgment and their trust was not mistaken. Faced with Liang and the other farmers kneeling in petition, the premier not only got out of his car himself, [he also] shook hands with the farmers, asked them about their problems, and indicated that a satisfactory response would be given. Most importantly, it should be pointed out that in judging the nature of the kneeling petitioners’ actions, the premier said: “This is the farmer’s fundamental right and should not be obstructed.”

However, some people have different ideas. They think that blocking the premier’s motorcade obstructs the premier’s official business and “disrupts public order.” To be sure, the premier’s vehicle cannot be blocked for any old reason. A country’s highest administrative leader has many important responsibilities that most of the time cannot afford the least bit of delay. If ordinary people were to block [the premier’s] vehicle over every little matter, how could he handle larger national affairs? But [these defenders of public order] perhaps overlook the special nature of the premier’s itinerary on this occasion—the premier went to inspect Yiliang precisely in order to understand the [local] people’s situation. Even though he went on account of an earthquake, this does not mean that he can only understand the situation relating to the disaster and that other matters cannot be raised. What’s more, Liang Yonglan and the others were not completely ignorant of the “rules”: their kneeling petition only took just over two minutes of the premier’s time.

If the kneeling petition by Liang Yonglan and the others had any adverse effect, it was a loss of face for local officials. If ordinary people resort to kneeling petitions, it shows that they have major grievances—if there is local disharmony, it is because [local] officials have not governed well. That ordinary people don’t turn to local officials when they have grievances shows that they either have no way to protect their rights or do not trust local officials. This is perhaps why some local officials are particularly unwelcoming towards petitioning. In some places, local officials even take repressive measures against petitioners, mobilizing public power to strike back against petitioners on all sorts of pretexts in an effort to “kill a chicken to warn the monkeys.”

Actually, it’s extremely unwise to try to eliminate petitioning through repression. Repression carries extremely high costs. Whether it’s enacting all sorts of rules against petitioners so that they will be punished at the slightest move or tracking and intercepting petitioners … all of these require huge investments of human and material resources. Moreover, even if these prevention measures are stronger, it’s hard to avoid loopholes. One ought to realize that if ordinary people have grievances, there must be some way to resolve them. Either officials keep rights-protection channels open in the localities they govern so that ordinary people’s rights get sufficient relief, or ordinary people will petition—petitioning is a good thing, because it shows that [people] believe in the government and believe in the ability of the vertical oversight system to resolve problems.

Different attitudes toward petitioning will result in different outcomes. Being generous like the premier and showing a bit more tolerance, more understanding, and, when possible, more patience will not only help to resolve conflicts in a timely manner and preserve social harmony but also help to garner positive credibility and win the respect and trust of average people. [Acting] conversely may add insult to injury, allowing the situation to continue to get worse, and as was the case among some people in Yiliang County, infringing upon the rights and interests of petitioners will only make one more reactive.

The Zhaotong Public Security Bureau’s revocation of the administrative detention order against Liang Yonglan and the Yiliang County Public Security Bureau’s personal apology have already rejected the methods earlier applied by certain people. This acknowledgement of fault and willingness to change has earned much praise. But a more ideal situation would be to avoid making mistakes as much as possible, especially mistakes that could have been avoided in the first place.

Thursday, December 20, 2012

Can China’s Legal Reform Survive Without Judicial Independence?


Experts at a conference on legal reform earlier this month. Clockwise from top left: Hu Yunteng, Supreme People's Court Research Office; Xie Pengcheng, Supreme People's Procuratorate Institute of Procuratorial Theory; Tian Wenchang, All-China Lawyers’ Association; former lawyer Li Zhuang; lawyer Mao Lixin; Xu Xin, Beijing Institute of Technology Law School.
Photo credits: Sina

Since last month’s installation of Xi Jinping and Li Keqiang at the head of the Chinese Communist Party, there has been much speculation about whether China is about to embark on a new round of reforms and, if so, whether it might alter the political system. In the near term, the odds of political reform are not high, but gradual changes to the legal system are more likely. The most immediate changes will probably result from revisions to the criminal and civil procedure codes that are set to take effect on January 1, 2013.

If recent history is any guide, it is very likely that any substantial reforms to China’s legal system (for example, changes in the system of reeducation through labor) will have to wait until 2014—after Communist Party leaders approve the new legal reform agenda expected to be drawn up by the Central Politico-Legal Commission and submitted for approval toward the end of next year.

Legal-system (or judicial) reform was the subject of a recent conference in Beijing, according to a report published in The Mirror (a Beijing evening paper with a focus on legal affairs). Although the article’s headline focuses on the “revolutionary” system of guiding cases, many conference participants quoted in the article express a degree of impatience with the limited nature of legal reform thus far, and a conviction that establishing a system of judicial independence is essential to the fair and authoritative administration of justice. Pointing to corruption in Russia’s Western-styled judicial system, however, others note that China’s socio-economic realities call into question whether judicial independence is currently feasible.

One is left with the sense that China faces a dilemma that is difficult to resolve: an urgent need to improve the capacity and quality of its legal system in an environment with political, economic, and social factors that restrict the speed and scope of change. Some have even gone so far as to identify this problem as a trap that can only be escaped by instituting political reform—the very thing legal reform is intended to forestall.

Such pessimism is of course inappropriate for the pages of a Chinese newspaper, which may explain why the initial focus is on concrete systemic reforms that have the potential for genuine improvement and why the piece ends with a comment—very likely stripped of its larger context—by former lawyer Li Zhuang, saying that the “spring [of Chinese judicial reform] has truly arrived.” Expectations are high, which means there could be repercussions if this new dawn doesn’t materialize soon.

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Building a Guiding Precedents System with Chinese Characteristics

Wang Hong, The Mirror
December 7, 2012

Supreme People’s Court (SPC) judge discusses judicial reform, speaks of plans to set up independent procedure to ensure sentencing precision; citizens can recommend outstanding precedents to courts

The [political] report of the 18th Party Congress mentioned ruling the country in accordance with the law and delivered a new message about “using legal-system thinking to resolve social problems,” all of which has given great encouragement to all segments of society. Some say that the third wave of Chinese reform has already begun, with judicial reform as an important component.

Recently, the Public Policy Research Center at China University of Political Science and Law held a conference on the subject of “The Characteristics of Chinese Judicial Reform,” attended by many authoritative experts, scholars, and lawyers in related fields. Everyone is hoping for the springtime of judicial reform to arrive.

Keyword: Institutional Reform

For a long time China has not given enough attention to sentencing, and in a past era when consciousness about human-rights protection was not strong, it did not matter much if some were punished more heavily and others more lightly.

Reform of sentencing standards began two years ago to address the problems of over-broad sentencing ranges and judges with too much discretion.

Setting up an Independent Sentencing Process

According to Hu Yunteng, director of the SPC Research Office, for a long time in China the sentencing and conviction processes were not separate, not enough attention was paid to sentencing, and there were instances of unequal sentencing.

In a past era in which consciousness about human-rights protection was not strong, it did not matter much if some were punished more heavily and others more lightly. These days, following the increase in human-rights consciousness, freedom is considered increasingly precious and a sentence that is excessive or insufficient by even one day has an impact on the fair administration of justice.

Starting two years ago, China began studying reform of sentencing standards with an eye towards building a relatively independent sentencing process that would, to a degree, separate sentencing from criminal adjudication and allow the prosecution and defense to debate not only the issue of guilt but also the issue of sentencing.

One important result of this reform has been to give finer gradation to sentencing ranges and refine the circumstances under the criminal law in which heavier punishment, more lenient punishment, mitigated punishment, and exemption from punishment [may be imposed], all in an effort to overcome the problems of relatively over-broad sentencing ranges and judges with too much discretion.

Let Outstanding Precedents “Speak”

Director Hu Yunteng says that, in the past, we were always very careful about the way we used [earlier] cases lest it turn into a Western precedent system. In fact, courts nationwide adjudicate millions of cases annually, an extraordinarily valuable judicial resource that encapsulates the collective wisdom of judges, lawyers, prosecutors, and litigants.

After a long period of study, the SPC decided to set up a system of guiding cases with Chinese characteristics, which was formally established in 2010. The SPC has already issued three sets of guiding cases and will soon issue the fourth set.

This Chinese-style system of guiding cases is different from those found in the West. In the West, any case [in which the verdict] has been announced automatically becomes a precedent, but guiding cases in China are all carefully selected by the SPC. The selection of cases involves an extremely strict recommendation process.

A court at any level that believes a case it has adjudicated can serve as a guiding case may recommend it to the adjudication committee of the court at the next-higher level. Cases must move up the recommendation ladder by passing through the adjudication committees of courts at each level.

Citizens who find that a particular case may serve as a guiding case may recommend it to the adjudication committee of the court that adjudicated the case in final instance.

Furthermore, guiding cases must be re-written and the key points of the decision must be approved by the SPC adjudication committee. An individual case may have many highlights, but the ultimate number of confirmed guidance points is usually between one and three, [ensuring that] the scope of guidance is not unlimited or random. Allowing each court, scholar, or lawyer to give [their opinions about a case] in an unstructured way might prevent the case from fulfilling its guiding function.

Courts should consult guiding cases when the case they are trying is similar, but “similar” refers to the essential similarity of the legal issues being contested in the case and not similarity in terms of subject, amount, or the plaintiff or defendant. If a defense lawyer recommends a certain case be consulted, the judge should respond. If a judge ought to consult a guiding case but fails do so without explaining the reason, that case could be remanded for retrial or the verdict changed.

Keyword: Judicial Openness

Experts and scholars all believe that after the 18th Party Congress the next steps in judicial reform will revolve around raising the level of trust in the administration of justice. One of the key links in this is to increase the openness of the judicial system. The current system of judicial openness merely rests on “open hearings,” and there is not enough openness in some of the other aspects [of the judicial process].

Let the Public Participate in Judicial Reform

Director Hu Yunteng observed that many countries worldwide are carrying out judicial reforms, including Japan, Vietnam, and many developed countries. Judicial reform in China is [part of] the development and perfection of a socialist system with Chinese characteristics and must resolve the many problems that currently affect social justice.

The process of China’s judicial reform is not a closed-door process but rather one in which the public should participate and one that should absorb opinions from all sectors of society. The effectiveness of reform should be judged by the public. The goal of China’s judicial reforms is the establishment of a judicial system that is fair, highly efficient, and authoritative.

Mao Lixin, a law Ph.D. and lawyer with the Beijing Shangquan Law Firm, believes that the essence and basic function of the administration of justice is to resolve conflicts, something that requires fairness while at the same time emphasizing efficiency. “Fairness and efficiency” are two major themes in the administration of justice.

However, China currently has a low degree of judicial efficiency. There are 210,000 judges in China, ranking number one worldwide. Its ratio of 19.7 judges for every 100,000 people is higher than in the United States, but its judicial output is actually very low. According to statistics, last year the average number of cases handled per judge was only 57.

In the United States, a judge handles at least 1,000 to 2,000 cases per year; in South Korea the average judge handles more than 700 cases. But in China, many simple cases remain undecided even after several years.

Keyword: Judicial Independence

Many experts and scholars believe that the biggest problem facing China’s current administration of justice is insufficient trust in the judicial system. Abusing power to control the law and interference in the administration of justice are very apparent in some locations, and the key to solving this problem rests on the need to ensure that judicial bodies exercise their judicial power independently.

Stop Power from Kidnapping Justice

Professor Xu Xin of the Beijing Institute of Technology School of Law says that in the past several years the great majority of judicial reforms involved minor revisions and fixes without touching the core of the legal system, and that some of these revisions were even expedient. For example, the system of guiding cases is a revolutionary reform, but it is very difficult to implement. He hopes that the SPC will set up a precedent database and make all precedents public so that everyone may supervise, consult, and compare.

As a next step, China must reaffirm judicial independence, because that is a bottom-line issue. If no one dares speak of judicial independence more than 30 years since opening and reform, then there is no point in discussing judicial reform. Judicial independence is the most fundamental condition for realizing fairness in the administration of justice, without any distinction between East and West. Socialist judicial independence can surpass capitalist judicial independence.

Lawyer Tian Wenchang observes that in many cases judges and courts face control, interference, and even kidnapping [in a figurative sense] at the hands of all sorts of power, a situation that must be eliminated. If [the problem of] judicial independence is not resolved, judicial reform is just empty rhetoric.

Independence of Judicial Officers is Prerequisite

Xie Pengcheng, deputy director of the Institute of Procuratorial Theory at the Supreme People’s Procuratorate, noted that the [political] reports of the 13th through 18th party congresses all contained similar language about “ensuring that judicial bodies exercise judicial power independently and fairly in accordance with the law.” This shows above all that the problem of guaranteeing that judicial bodies exercise judicial power independently and fairly in accordance with the law requires further attention.

The basic goal for future judicial reform is: guaranteeing judicial independence. To this day, there is no country that has fair and authoritative administration of justice without judicial independence.

Where is the fulcrum for future judicial reform in China? It is the establishment and protection of independence for judicial officers.

When relevant international covenants mention judicial independence, they are firstly referring to the independence of judicial officers. However, judicial independence in China means the independence of courts and procuratorates, without recognition of independent judges and procurators. This is the basic reason China cannot truly realize judicial independence.

Establish a High-Quality Corps of Judges

In response to the question of judicial independence, Hu Yunteng says frankly that judicial independence and judicial democratization must conform to our current social realities.

Russia is a classic example of a judicial system transplanted from Western countries: constitutional court, separation of powers, and judicial independence. But fewer than one third of Russians are satisfied with their judicial system, particularly [because of] judicial corruption.

If overall social conditions have not been met and judicial personnel have not achieved [a certain level of] quality, giving judges power will result in serious consequences.

There are currently a number of problems in which the SPC can intervene, and we have some institutions that promote judicial fairness. The fact that many people do not obey the judicial system at present is not because they do not take judges seriously; it is because the law itself has no authority.

Keyword: Lawyer Participation

In the “Li Zhuang incident,” the defendant made accusations against his lawyer in order to save his own life. This fundamentally subverts the foundations of the institution of lawyers.

No Judicial Reform Without Lawyers’ Participation

Tian Wenchang, chair of the All-China Lawyers’ Association Criminal Law Profession Committee, believes that judicial reform cannot occur without the participation of lawyers. In the “Li Zhuang incident,” the defendant made accusations against his lawyer in order to save his own life. This fundamentally subverts the foundations of the institution of lawyers.

There are two very basic foundations to the institution of lawyers: the first is attorney-client privilege and the second is the litigant’s “principle of lawyer protection.”

Several years ago, when the Lawyers Law was being enacted, there were many years of debate about attorney-client privilege. At the beginning, the majority view was that lawyers should be responsible to the law rather than to their clients and that lawyers should reveal and report illegal criminal behavior by their clients when they discover it.

After several years of hard work, attorney-client privilege was finally written into the Lawyers Law. In other countries, lawyers, doctors, and priests are all statutorily exempted from the obligation to give evidence.

But unfortunately the “principle of lawyer protection” has never been established. If a defendant can report on a lawyer in exchange for lighter treatment, what lawyer would dare tell the truth?

Sidelight

“Current Well-Known Non-Lawyer” Li Zhuang: “Spring is Here for the Judicial System”

The afternoon discussion on December 1 was the first open-door academic conference that Li Zhuang attended since his release from prison. The discussion chair’s introduction of him was clever: former non-well-known lawyer, current well-known non-lawyer.

As guest discussant, he stood and spoke last for about 15 minutes. Li Zhuang said that he read the Criminal Procedure Law many times while in prison and [observed] many loopholes therein.

He believes that the bottleneck in judicial reform lies in the lack of independence for judicial officers. If people are not independent, independence will be difficult to achieve even with more funding. And then there are the huge differences in sentencing, in which two cases with nearly the same circumstances result in very different judgments. This reveals the arbitrariness in the administration of justice.

Li Zhuang says that China has discussed judicial reform for more than 20 years, but he has only heard the footsteps on the staircase without seeing anyone come down the stairs. This time, however, spring has truly arrived for the administration of justice in China!

Monday, December 17, 2012

China’s “Almighty God” Rises with Threat of Apocalypse


People in Gansu Province carry a banner warning that Almighty God is coming to save believers and destroy the people and nations that resist, December 11, 2012. Photo credit: gscn.com.cn

All across the world, people have been anxiously awaiting the arrival of December 21, 2012, a date some believe has been prophesied to mark the end of the world. China has apparently not been immune from these rumors, and a recent report from Shaanxi Province suggests that authorities there are engaged in a serious crackdown against a persistent “cult” organization that has been using the doomsday rumors to recruit new members.

For several decades, authorities in China have been trying to eliminate a quasi-Christian group that calls itself the “Church of the Almighty God.” Known also as the “Real God” church or “Eastern Lightning,” this group believes that divine revelation has identified a “female Christ” who will reign over a new age in which humankind will be judged and only believers will survive. The group apparently has an extensive organization both inside and outside China and has reportedly been involved in a number of violent attacks on Christian house church organizations. In 2001, Time magazine published a short profile of the organization describing some of these allegations.

Translated below, the recent report out of Shaanxi does not offer much detail on the group’s latest activities. (According to China Digital Times, propaganda officials have put Chinese media under strict orders not to report on recent cult activities.) It does, however, provide a useful view of how Chinese authorities define “cults” and perceive their various social harms.

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“Almighty God” Cult Appears in Shaanxi, Incites Believers to Wage Decisive Battle against Party

Chinese Business View
December 14, 2012

Recently in some places in our province, members of the “Almighty God” cult have been taking advantage of the “2012 end-of-the-world prophecy” to gather illegally and disseminate propaganda in the streets to spread the end-of-the-world rumor and claim that “only believers will be saved.”

Also Known as “Eastern Lightning,” “Real God”

This reporter has learned that the “Almighty God” cult is also called “Eastern Lightning” and “Real God.” Its doctrines are selections and perversions from the Christian Bible, [and the group] mainly exploits the name of “Christianity” to conduct illegal activities. The State Religious Affairs Bureau first made a note of its cult nature long ago and banned the group in accordance with the law; [the bureau] is now striking hard against [Almighty God].

This organization originated as an offshoot of the “Shouters,” a cult which entered our country from the United States in the late 1970s. Its founder, Zhao Weishan, was a core member of the “Shouters” who left to set up his own group because of disagreements with fellow members. “Almighty God” carries the banner of Christianity and disseminates absurd, illegal cult teachings adapted from Christianity such as The Word Appears in the Flesh; Lightning from the East; Almighty God, How Great You Are (also known as Sing a New Song with the Lamb); Christ’s Words (also known as Judgment Begins with the Family of God); Works of the Spirit; Kingdom of Praise; Hymns of Truth; and New Songs.

This group teaches that the “Age of Law” ruled over by Jehovah and the “Age of Grace” ruled over by Jesus have both passed and that the “Age of the Kingdom” ruled over by “Almighty God” is approaching. [It teaches that] God took human form a second time as an Eastern woman and descended to China to pass judgment on humankind. It claims that “the end of the world is approaching” and that only those who believe in “Almighty God” can be saved, whereas all who reject and do not believe will be killed by “lightning.” It says slanderously that “present-day China is a great imperial family in decline that is dominated by a great red dragon (i.e., the Communist Party)” and incites followers to launch a decisive battle against the “great red dragon” under God’s leadership and “to destroy the great red dragon and establish the Kingdom of the Almighty God.”

Striking Hard against Its Destructive Activities

“Almighty God,” which originated in Henan in the 1990s and spread to many provinces, is a cult with political overtones.

There have been instances of the cult’s money-making scams in many places throughout the country, bringing great harm to more than a few members of the public who were “lured” by the cult into joining. The cult even encourages its members to leave their homes, devoting their body, soul, and property to the church leader. This has led to the shattering of many formerly prosperous and happy families and compounded the problems of many families that were already poor and suffering.

The spread of this cult has seriously interfered with the normal religious beliefs of some members of the public in our province and has disrupted the order of people’s work and daily life. It has deceptively attracted [members of the] public who do not understand the true situation, led to disharmony in many families, and caused great social harm. As December 21, 2012, approaches, the destructive activities of “Eastern Lightning” groups everywhere may grow even more apparent and virulent. The relevant authorities are presently striking hard [against them] and remind the public to resolutely resist.

Readers who discover illegal or criminal activities of the “Almighty God” [cult] are requested to report them to police immediately by phoning 110 and to assist the public security authorities in combating and punishing [the group].

Operation Style of the “Almighty God” Cult

Beginning in the 1990s, “Eastern Lightning” (also known as “Almighty God”) spread northward from Henan. In 1998 it spread to places including Yan’an and Yulin, and in 2004 it reached the region of Inner Mongolia and Shanxi, making pervasive inroads towards Xinjiang, Ningxia, Gansu, and other areas. The group’s internal organizational structure is extremely tight and its ability to resist detection is quite strong. At the very top of its internal organizational structure is a female God, below which are priests. The churches are divided into large-area, small-area, and branch churches, with the persons responsible known as “leaders.” Proselytization is similar to a pyramid marketing scheme, employing “rolling personal networks” and one-way relationships. Once you have joined the church, you are not allowed to ask others’ names. Only pseudonyms such as “Little White Rabbit” or “Doggy” are used in communication with others. Each church member only knows the several other members of their branch church, and members rarely meet in groups exceeding seven. New members are known as “newcomers.” Those who have been discovered by the public security authority or government agencies are said to have “left the surroundings,” and either don’t talk or talk nonsense [to those who discovered them]. Proselytizers are typically not allowed to carry any means of communication and, when they need to make contact, make varied use of local pay-per-use telephone services to call people to meet them.

How to Identify Cults

[With respect to] Article 300 of the Criminal Law, cults are defined as “illegal organizations established in the name of religion, qigong, or other pretexts that, having deified its most important members, uses the creation and dissemination of superstition and heresies, among other means, to bewitch and deceive others, recruit and control members, and harm society.” [Note: Article 300 discusses cult-related crimes, but “cults” are not defined anywhere in the Criminal Law—Trans.]

In other words, [cults] make people miss work, neglect their fields, abandon their homes, and give up their studies to believe in “God”; claim that joining their “religion” can heal the sick and ward off calamity and serve as a refuge; spread word that the “end of the world” is coming and that only those who join their organization can be saved; deceive and coerce women into humiliation by church leaders; say that traditional religion is out of date and that one must believe in a new “God”; hold illegal and furtive gatherings where they shout, sing, and dance wildly; make people use deceptive means to get others to join; refuse to allow [people to] leave the group after joining; incite members to defy the government in the name of “God”; treat society, the government, and ordinary people as “demons”; concoct ridiculous heresies under the guise of religion and science; unscrupulously collect money through fraudulent means; and establish underground organizations and carry out illegal activities.

Tuesday, December 11, 2012

RTL: Reporters Shed Some Light on Reform Projects


RTL detainees receive bedding donated by prison staff to get through the winter in Xi'an, November 22, 2006. Photo credit: CFP

As suggested in a number of earlier posts, there is a growing consensus about the need to reform or abolish China’s system of “reeducation through labor” (RTL). There are clear signs of high-level commitment to undertake some type of reform to this kind of administrative detention, most recently including an editorial in the Communist Party’s flagship newspaper, People’s Daily.

After a brief lull in coverage in the run-up to the 18th Party Congress, the Chinese press has given renewed attention to cases in which RTL has been used in questionable ways. Significant coverage was devoted recently to the cases of Ren Jianyu, one of several individuals from Chongqing who have challenged the RTL decisions made against them for things they posted online, and Zhao Meifu, a 54-year-old woman sent to RTL in Gansu after a visit last month to Beijing, where her son is a university student.

Although no timetable for dealing with RTL has been made public, officials announced a few months ago the launch of a pilot project in four cities—Jinan, Lanzhou, Nanjing, and Zhengzhou—to study possible reform measures. (Qingdao, not Jinan, was included in the four-city pilot announced late last year.) Anyone hoping to guess at the future shape of RTL reform based on the content of this pilot project will be disappointed, as little to no detail has been revealed so far.

Reporters from the Xiaoxiang Morning News in Changsha recently tried to get more information about the reform agenda in general and the pilot studies in particular. Their findings, albeit sparse, indicate that police authority in reviewing and approving RTL cases is being dismantled to some extent in cities where the 2011 pilots were launched. For example, Qingdao has introduced multi-department RTL management committees (which were included in the original design of the RTL system in the 1950s) to replace the public security committees that have become commonplace. In all four cities, however, newly established committees are still housed in public security offices and headed by public security chiefs. In contrast, in an independent local project in Heilongjiang, “RTL relief procedures have been freed from the confines of the public security [system].”

Despite these cosmetic changes, however, there remains a deafening silence about the incompatibility between national law and the regulations upon which RTL is based.

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RTL Reform

Legal Reform “Being Studied,” Pilot Details Still Not Released
Zhou Xifeng, Xiaoxiang Morning News
November 22, 2012

Earlier, four cities in Gansu, Shandong, Jiangsu, and Henan began carrying out pilot projects for the correctional system that is to replace the RTL system, but details of the pilots have yet to be announced.

At the same time, Chongqing, Heilongjiang, and other areas also began to carry out pilot projects and adjustments of their own, but even these “corrections” are based on provisions in relevant [existing] laws.

Xiaoxiang Morning News Reporter Zhou Xifeng, Intern Xia Pei reporting from Beijing

Reform of the RTL System, Slow Legislative Process

Criticism of RTL has been ongoing for many years, with periodic calls for RTL’s abolition or reform.

Back in February 2005, the 10th National People’s Congress (NPC) announced that the (Draft) Law on Correction for Illegal Acts (hereafter, Draft Correction Law) had been placed on that year’s legislative plan, but the legislative process has been moving slowly and this law intended to replace the RTL system has yet to be introduced.

The Draft Correction Law was drafted by the NPC Legislative Affairs Committee, which planned to submit it for a reading in April of [2005].

Compared to the RTL system, the nature, decision process, and implementation methods that were under discussion for the correction system all represented a large-scale adjustment to the RTL system.

For example, in order to address the problems of unilateral control by public security organs over the power to review and approve RTL [decisions] and the lack of effective oversight and checks, the Draft Correction Law gives individuals sanctioned with RTL an added right to defend themselves and includes a provision for persons sanctioned with RTL by public security organs to defend themselves if they do not accept the decision, and make an appeal to the courts to decide whether the RTL decision is valid. At the same time, the accused may also retain a defense lawyer and apply for a hearing.

It is easy to see that in this way the Draft Correction Law judicializes the RTL decision process and gives power over RTL decisions to the courts in hopes that this will effectively prevent the improper phenomenon of arbitrary expansion of the scope of RTL application.

Wang Gongyi participated in the discussions surrounding legislation of the Corrections Law as the then-director of the Ministry of Justice’s Judicial Research Institute. According to him, compared to the RTL system, [punishment] discussed for illegal behavior would be more reasonable and in accord with the law: “Once it is reformed, no corrections center will have iron bars on the windows or doors and humane management will be instituted.”

However, after several initial meetings, some experts who participated in the drafting began to sense opposition. The final result was a shelving of the draft, and the Draft Correction Law never got its scheduled reading in April 2005.

Similar things happened again in 2010. In March of that year, Deputy Chairman of the Legislative Affairs Committee of NPC Standing Committee, Li Fei, stated that drafting work on the Draft Correction Law had been underway for several years and that the legislation had been placed on that year’s legislative work plan: “The pace of progress will quicken, and [the legislation] has also been placed on China’s legal reform agenda.” However, that year, the draft once again failed to realize its planned hearing.

Details of Four-City Pilot Unknown to Outsiders

As the law has yet to be promulgated, the pilot projects proceed first. In November 2011, the Supreme People’s Court and nine other ministry-level bodies jointly issued a Pilot Scheme for Committees of Education and Correction for Illegal Acts, selecting Lanzhou, Gansu; Qingdao, Shandong; Nanjing, Jiangsu; and Zhengzhou, Henan, as the four cities to carry out RTL reform pilot projects.

According to the scheme, the pilot cities would establish leadership small groups [to oversee] work on the pilot scheme for committees of education and correction for illegal acts. These groups would be composed of responsible persons from institutions including the courts, procuratorates, public security, government legislative affairs offices, education bureaus, civil affairs bureaus, and justice bureaus.

However, specifics about the pilot scheme have never been announced, making it difficult for outsiders to know the details. Wang Gongyi says that because the current pilot project focuses on the review and approval phase, the Ministry of Justice has not been involved.

According to information revealed from each of the pilot cities, the offices established under the pilot leadership small groups have [not departed with current practice and have] been set up within the city public security bureaus, with a deputy public security bureau chief serving concurrently as office director.

According to information provided by the relevant departments in Qingdao, the specific work of the pilot project on RTL review and approval shifts the decision power over RTL to the Committee of Correction for Illegal Acts, which is composed of members of different professions from several agencies who discuss each case individually before making a decision.

Nanjing has also been asked to set up a Committee of Correction for Illegal Acts, which is responsible for the specific pilot work.

In Zhengzhou, however, the focus is on the power over review and approval of RTL. This is one reason why Zhengzhou has been dragging its feet about publicizing the details of its RTL reform work.

Local Zhengzhou media report that, on the question of making the RTL management committee independent from the public security authority, there are two views: one would give [authority] to a judicial body, like the courts, while the other would give [authority] to a comprehensive coordinating body, such as the comprehensive social management committees.

But neither the courts nor the comprehensive committee wants to take on this hot potato. The procedure for review and approval of RTL cases is no simpler than that for criminal cases, and the responsibility to be assumed is great.

“Cities piloting RTL reforms should issue concrete plans as soon as possible. Taking the initiative to seek suggestions and opinions from all corners of society before officially putting forward a reform proposal would give full publicity to reform of the RTL system and be a process of seeking common ground despite differences of opinion. This would go a long way toward reducing opposition to the reform proposal during the implementation period and allowing [the proposal] to do its job.” Many individuals in the legal community feel this way.

NPC delegate and lawyer Chi Susheng believes that if public security organs or local governments continue to dominate [the process], this type of pilot project would have no real significance. [She believes] that true reform should judicialize RTL and give decision authority to the courts.

Locally Initiated Reforms Have “Pioneering” Value

Chi Susheng is currently representing many cases in which people sanctioned with RTL for petitioning have applied for reconsideration or filed lawsuits. In the course of handling these cases, she has discovered minor variations in local avenues for relief. “In Heilongjiang, when we applied for reconsideration in the past the case files were all at the public security bureau and the case never left the public security [system]. Now when you apply for reconsideration you have to go before the administrative reconsideration committee of provincial-government-level departments and the case files are no longer controlled by public security but, instead, managed by the government legal affairs office.”

Chi Susheng believes that this means that RTL relief procedures have been freed from the confines of the public security [system], and that, on some level, this also serves a kind of check on the power of public security. However, according to this reporter’s understanding, this type of change is limited to self-initiated pilot projects launched in a few locations. Chi Susheng believes that [such a change] will not alter the current situation in which local government takes the leading role in RTL.

In May of this year, the Chongqing People’s Congress Standing Committee made a series of changes to local regulations. In the Chongqing Municipality Prostitution Prohibition Ordinance, it eliminated provisions allowing prostitutes and their clients to be sent to RTL. This means that Chongqing will no longer use RTL [to punish] prostitutes or those who hire them.

It is worth noting that the basis for this revision was the Legislation Law, which took effect on July 1, 2000, and the Administrative Enforcement Law, which took effect on January 1, 2012. Both of these laws state that any compulsory measures that restrict citizens’ personal freedom must be provided for through legal statute. Article 8 of the Legislation Law states that only [national] law may be enacted in respect of deprivation of the political rights of a citizen or compulsory measures and penalties involving restriction of personal freedom. Articles 9 and 10 of the Administrative Enforcement Law state that only [national] law may be enacted in respect to administrative compulsory measures involving restriction of citizens’ personal freedom.

Some experts believe that the decision by the Chongqing People’s Congress Standing Committee is a normal, legally-grounded act of revising the law. But the problem is that the Administrative Enforcement Law took effect on January 1; why was the legal conflict only corrected in May? Moreover, the Administrative Enforcement Law was passed at the 21st meeting of the 11th NPC Standing Committee on June 30, 2011. There was a six-month transition period between the [law’s] announcement and the date it took effect. This period provided all locales and all government agencies an opportunity to review the new law and, upon discovering legal conflicts, to immediately to enact [new measures] or revise or revoke [existing measures] so that once the Administrative Enforcement Law formally took effect it could be fully applied.

Legal experts believe that the Chongqing People’s Congress Standing Committee acted too slowly in “correcting” local regulations on the basis of the Administrative Enforcement Law. Even so, Chongqing’s effort to resolve the conflicts between the Administrative Enforcement Law and local regulations is still valuable for being a “pioneering” effort. Serving as the direct legal basis of the RTL system, the State Council Decision on the Issue of Reeducation through Labor, State Council Supplementary Regulations on Reeducation through Labor, and the Trial Measures on Reeducation through Labor re-issued by the State Council are also in conflict with the Administrative Enforcement Law, but so far none of these administrative regulations has been “corrected.”

Demand for RTL Reform Increases Daily from All Segments of Society

China’s RTL system originated in the 1950s. In its original design, RTL management committees made up of responsible persons from civil affairs, public security, and labor bureaus [had responsibility for] leading and managing RTL work and reviewing and approving [decisions] to send people to RTL.

But in 2002 the Ministry of Public Security introduced Regulations on the Handling of RTL Cases by Public Security Organs, [according to which] public security organs set up RTL review and approval committees to review and approve RTL cases and to carry out the functions of the RTL management committee. The daily work of these review and approval committees has also [since] been taken up by the legal affairs units of the public security authority at the same administrative level.

“Something that originally was supposed to be done together by civil affairs, public security, and labor [bureaus] is now being done by public security alone,” says Peking University Law School Professor Jiang Ming’an. This situation where “the player is also the referee” has long been the subject of public criticism.

“Although they are convenient for public security organs to use, in actual practice the procedures aren’t clear, which leads to all sorts of problems,” says one legal scholar. The mutation of the RTL system has not only turned it into a stability-maintenance tool for controlling petitioners but also become a hotbed for avoiding the risks involved in handling cases and blending interests.

In recent years, some local governments have announced [a policy] towards petitioners of “warning first, detaining second, and RTL third.” Some places have regulations that state that petitioning in key or sensitive locations in Beijing may be directly considered disrupting public order [which is punishable by RTL under current regulations].

These measures have spurred a backlash of public opinion. NPC delegate and lawyer Chi Susheng believes that it is precisely this kind of mutation of RTL’s function that has caused demands for RTL reform to increase daily from all segments of society.

In its original design, RTL was a measure for compulsory education and reform, as well as a means to arrange employment. The targets of RTL were not criminals and could not be managed as criminals, but were to be “managed as would a doctor treating a patient, a teacher treating a student, or a parent treating a child.”

Beijing lawyer Wang Fu, who spent 13 years as an RTL guard, says that the origin of the RTL system is the superstitious belief that “labor can reform a person.” Those sent to RTL facilities must take on a heavy labor load, and the original purpose of RTL has been distorted.

In the discourse of China’s judicial bodies, the targets of RTL and reform through labor were known collectively as the “two laborers.” Liu Renwen, director of the Criminal Law Research Center at China Academy of Social Science’s Institute of Law, says that the initial design of RTL made it essentially different in nature from reform through labor and the methods of implementation were also substantially different. But, in reality, “in terms of the serious degree to which they deprive people of their personal freedom, there’s currently no difference between RTL and reform through labor. RTL has become a ‘second reform through labor,’ and if a person is sent to RTL ordinary people think he’s been sent to prison.”

Wednesday, December 5, 2012

China Outlines Criminal Punishments for Tibetan Self-Immolations


Monestary in Aba [Ngawa] County of Sichuan Province, where many self-immolations occurred. Photo credit: sc157.com

Since February 2009, more than 90 Tibetans have reportedly set themselves on fire in protest against Chinese government policies. These self-immolations, which because of restrictions on reporting have been difficult to confirm, have largely been carried out by young Tibetan men and women in the eastern Tibetan regions that are divided between the provinces of Sichuan, Qinghai, and Gansu. Most of the protesters are known or believed to have died as a result of injuries sustained during these incidents.

The frequency of self-immolation, a form of protest that was previously unknown in Tibet, has accelerated in recent weeks. Some analysts suggest that this represents a new phase of protest, one aimed at forcing China’s new party leaders to confront grievances about tightened political control over religious institutions and policies that further weaken the cultural autonomy to which Tibetans and other ethnic groups are entitled under Chinese law.

In the face of growing protest in Tibetan and Uyghur regions in recent years, the Chinese government has held on firmly to its two-pronged effort to assimilate its western ethnic populations economically and culturally, even though many of these policies—such as relocation of nomadic herders into settled villages and “bilingual education” that places primary emphasis on Mandarin Chinese—have tended to further intensify grievances.

In an effort to curb self-immolations, local governments in Tibetan areas have also instituted a heavy security crackdown and intensified propaganda efforts aimed at demonizing protesters and the “black hands” who allegedly incite them. Both of these tactics are on display in an editorial recently published in the Gannan Daily, the newspaper published by the local party committee in Gannan [Kanlho] Tibetan Autonomous Prefecture, Gansu Province. The editorial introduces guidelines issued by China’s top judicial and law-enforcement authorities aimed directly at criminalizing a wide variety of activities related to the protests. (Three of the activities mentioned in the report are to be considered intentional homicide, as was the case for at least three people detained in Sichuan last year.) It also features classic examples of the language associated with political campaigns—language that emphasizes the treachery of “splittist” forces inside and outside China who “cloak their illegal criminal acts in religion” while “bewitching” protesters to go against the interests of the “broad masses” and undermine ethnic unity.

It is unlikely that either the criminalization of self-immolation or heavy-handed propaganda will lead to the resolution of the longstanding grievances that underlie the protests. Recent government policies appear aimed at integrating these peripheral ethnic regions more firmly into the dominant economic, social, and cultural order of China, without giving due consideration to the desires of inhabitants there. Though self-immolation may appear to some as a senseless act, for those who choose this form of protest such sacrifice may reflect the relative lack of other means to express the suffering and indignity experienced by Tibetans.

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Those Who Incite Self-Immolations Must be Severely Punished Under the Law

Gannan Daily
December 3, 2012

Gannan Daily commentator

Just as cadres and the masses of all ethnic groups in our prefecture are studying how to carry out the spirit of the 18th Party Congress by wholeheartedly seeking development and making concerted efforts in pursuit of moderate prosperity, splittist forces inside and outside our borders have bewitched and incited [people to carry out] a series of self-immolation incidents that have seriously affected the overall social situation of unity and stability in our prefecture.

So that the recent self-immolation cases that have occurred in Tibetan areas may be handled in accordance with the law and in order to ensure social stability, the Supreme People’s Court, Supreme People’s Procuratorate, and Ministry of Public Security of the People’s Republic of China (PRC) have, based on relevant laws and regulations, jointly issued an “Opinion on Handling Self-Immolation Cases in Tibetan Areas in Accordance with the Law.”

The Opinion points out that the recent self-immolations that have occurred in Tibetan areas are cases of significant evil that result from collusion between hostile forces inside and outside our borders whose attempts to use premeditated, organized plots to incite splittism, undermine ethnic unity, and seriously disrupt social order. [The cases] have seriously affected the present overall situation of ethnic unity and social stability in Tibetan areas. Those who carry out self-immolations in these cases are unlike the ordinary world-weary person who commits suicide. Their common motivation is to split the nation and they endanger public safety and social order, classifying their self-immolations as illegal criminal acts. Organizing, plotting, inciting, coercing, enticing, abetting, or assisting others to carry out self-immolations is, at its essence, a serious criminal act that intentionally deprives another of his or her life.

Tibetan Buddhism emphasizes compassion and not killing as fundamental precepts. However, those who plot self-immolations cloak their illegal criminal acts with religion and have desecrated the faith of the broad masses of believers in Tibetan Buddhism. The Opinion makes clear that those criminals who act as principal culprits behind the scenes to organize, direct, and plot [self-immolations], as well as those who actively participate in inciting, coercing, enticing, abetting, or assisting others to carry out self-immolations, will be held criminally liable for intentional homicide in accordance with the relevant provisions of the Criminal Law of the PRC and targeted for severe punishment in accordance with the law. As for self-immolators themselves, once the nature of their illegal acts has been clarified, they should be treated differently depending on specific circumstances such as the extent of their malign intentions and the degree of the harm caused by their acts. If the circumstances are serious and major harm has been caused, they should also be held legally liable in accordance with the law.

The Opinion indicates that anyone who organizes, plots, incites, coerces, entices, abets, or assists others to commit self-immolations shall be held criminally liable for intentional homicide in accordance with the Criminal Law. Anyone who actively commits self-immolation in which the circumstances are serious and that causes major harm or serious danger to society shall be held criminally liable in accordance with the law. Anyone who commits self-immolation in a public space and endangers public safety shall be held criminally liable for using dangerous methods to endanger public safety in accordance with the Criminal Law. Anyone who prepares implements or creates conditions for committing self-immolations shall be treated as if he or she were preparing to commit a crime. Anyone who commits self-immolation and, while burning, grabs hold of another person, shall be held criminally liable for intentional homicide in accordance with the Criminal Law. Anyone who commits self-immolation in a public place who does not endanger public safety but gathers many people to seriously disrupt public order or traffic order shall be held criminally liable for gathering a crowd to disrupt public order or traffic order in accordance with the Criminal Law. Anyone who, in order to commit self-immolation, illegally carries gasoline or other flammable items into a public space or onto a public transportation vehicle shall be held criminally liable for illegally carrying dangerous items that endanger public safety in accordance with the Criminal Law. Anyone who has been enticed, tricked, or coerced into committing self-immolations may be given lenient or mitigated [punishment] or exempted from criminal punishment in accordance with the law.

The Opinion further indicates that anyone who creates disturbances at the scene of a self-immolation and creates serious chaos in a public place shall be held criminally liable for creating a serious disturbance in accordance with the Criminal Law. Anyone who gathers crowds to disrupt social order, public order, or traffic order by means such as parading around with a corpse or summoning a group to gather and watch shall be held criminally liable for gathering a crowd to disrupt social order or gathering a crowd to disrupt public order or traffic order in accordance with the Criminal Law. Anyone who obstructs public security officers, medical personnel, or others from rescue efforts shall be held criminally liable for intentional homicide in accordance with the Criminal Law. Anyone who commits beating and smashing at the scene [of an immolation] or damages or steals public or private property shall be held criminally liable for robbery or intentional destruction of property in accordance with the Criminal Law. Anyone who prevents public security officers or other employees of state organs from carrying out their duties in accordance with the law, if the circumstances are rather serious, shall be held criminally liable for obstructing public service in accordance with the Criminal Law. Anyone who summons a group to mourn or collect funds for a self-immolator shall be prevented from doing so in accordance with the law; anyone who refuses to obey and gathers a crowd to disrupt social order, public order, or traffic order or who obstructs public service shall be held criminally liable in accordance with the law.

Civilized society requires rule of law, and the construction of a harmonious and beautiful society necessitates even more the safeguards of rule of law. The issuance of this Opinion is extremely necessary and extremely timely, not only because it provides a strong legal basis for handling various self-immolation cases in accordance with the law, but also because it serves as a strong deterrent for self-immolation incidents. It leads us to understand that laws are norms that every person must obey in a modern society, that absolutely no organization or individual may be allowed to operate above the law, that no one can enjoy extralegal privileges, and that all must be in awe before the law. In particular, those black hands behind the scenes who plan, direct, and incite others to commit self-immolation, [have committed] serious, illegal crimes that are extremely inhuman and they have violated human society’s most basic standards of conscience and morality. They must be subject to the law’s severe punishment and moral condemnation.

Throughout these recent years, the prefectural party committee and government have always shared joys and hardships together with the people of all ethnic groups in the prefecture, made improving livelihood and promoting the people’s well-being their fundamental goals, and continually improved the education system and extended public health and social security systems throughout urban and rural areas. Steady progress has been made toward the construction of new agricultural and pastoral villages as breakthroughs of the resettlement project, the incomes of farmers and herders have continued to increase, and the conditions of agricultural and pastoral villages have been completely improved. This has earned praise from cadres and the masses at all levels in the prefecture and received broad support from all segments of society.

Splittist sabotage does not enjoy popular support and self-immolations will not win people over. The facts prove that the fundamental interests of cadres and masses of all ethnic groups in Gannan rest on a unified nation, ethnic unity, and a harmonious and stable society and that these same conditions serve as fundamental assurance of breakthroughs to harmony and stability in pursuit of moderate prosperity and construction of a prosperous and beautiful new Gannan. Criminals who incite and bewitch with self-immolation must be brought to justice. Cadres and masses from all ethnic groups must have a deep understanding of the truth of “unity and stability lead to prosperity; splittism and rioting lead to disaster” and stand firm in drawing a clear line between [themselves and] all hostile forces and not be tricked or deceived. They must develop self-awareness of [the necessity of] upholding the good situation of ethnic unity and social stability and cherishing and protecting the good life that has not come easily.

Monday, November 19, 2012

Chinese State Security Arrests Stay High, Trials Soar

In 2011, the number of arrests and indictments for “endangering state security” (ESS) in China remained high, while ESS trial numbers broke new ground, according to China Law Yearbook. The official compendium states that 930 individuals were arrested and 974 were indicted on ESS charges (see Figure 1). Both figures remained well above pre-2008 averages despite double-digit declines. Arrests fell 11 percent year-on-year and indictments fell 20 percent—in lock step with Dui Hua estimates published in March. The subset of concluded first-instance trials that includes ESS leapt 96 percent to 1,314 trials, the highest volume since ESS entered China’s criminal code in 1998.

Dui Hua’s Political Prisoner Database includes information on 25 people convicted on ESS charges in 2011. Many ESS trials are closed on the grounds that they involve state secrets and the publication of verdicts is strictly controlled, making it difficult to obtain information on individual cases. Crimes in the ESS category include “subversion,” “splittism,” and their incitement.


Figure 1. Arrests and Indictments for Endangering State Security in China, 1998-2011

Among those convicted were Memetjan Abduqadir and Tursunjan Ablimit, who in 2002 set up a foundation to serve Uyghur students in impoverished areas of Xinjiang; dissidents like Xue Mingkai (薛明凯)—who had been diagnosed with mental illness—Liu Xianbin (刘贤斌), Chen Wei (陈伟), and Chen Xi (陈西), who were all jailed following online calls for Jasmine Revolution in China; Li Nanhang (李南航) and Sun Tianxi (孙天西), who were convicted in separate cases for allegedly organizing political parties, one of which only existed online; Falun Gong practitioners Wang Guangying (王光英) and Zhang Xiuling (張秀玲); Tibetan writer Tashi Rabten and Tibetan rights activist Kalsang Tsultrim—a number of other Tibetans were reported detained and convicted during the year but sentencing information is not available; and Lü Jiaping (吕嘉平)—the oldest person on the list, at age 71—and Jin Andi (金安迪), who published online articles critical of Communist Party elder Jiang Zemin.

Although there are only two names of Uyghurs convicted of ESS in 2011 in the database, this group is known to account for a high percentage of those convicted of ESS. According to official statistics, 414 ESS trials (including first-instance and appellate trials) were held in Xinjiang last year.

Figuring for Trials 

The reason for the disparate trends in the number of ESS trials versus arrests and indictments is unclear but is likely due to a combination of a decline in the number of defendants per trial and case backlogs.[*] Since 2007, the average number of individuals involved in each case involving arrest or indictment has declined markedly (see Figure 2). Backlogs, i.e., instances where an individual’s arrest or indictment does not occur in the same year his/her trial, are likely since the gears of Chinese criminal justice often turn slowly when processing ESS cases. This is because these cases are commonly classified as either “complex” or “sensitive” and sometimes require additional investigation to overcome issues of insufficient evidence. For example, Li Nanhang and Liu Xianbin were arrested in May and July of 2010, respectively, but were not convicted until March 2011.


Figure 2. Change in Number of Persons per Case, 1999-2011

On average, there were no more than 600 ESS arrests or indictments per year between 1998 and 2007. These figures more than doubled in 2008 due in large part to a crackdown on Tibetans and Uyghurs—often the targets of “splittism” charges—particularly after the uprising in Lhasa in March 2008, and more generalized efforts to ensure that dissenting voices did not tarnish the Beijing Olympics.

* Note: There is also a chance that there was an increase in the number of trials for dereliction of military duty, which Dui Hua believes China Law Yearbook lumps together with ESS crimes under the category “other,” but such an increase would be unlikely to have much impact on the whole. Although trial statistics are not disaggregated, indictment statistics have consistently indicated that dereliction of military duty accounts for less than 1 percent of indictments when placed in a separate category with only ESS. ^

Thursday, November 8, 2012

Call for Constitutionalism at the 18th Party Congress

18th National Party Congress Press Conference Center. Photo: Xinhua

At a press conference on the eve of the 18th Party Congress, a spokesman told reporters that the delegates assembled in Beijing to select China’s newest leadership group “brought with them the wishes of the Chinese people.” Indeed, as they did at the time of China’s last leadership transition 10 years ago, many in and outside China have high expectations for China’s incoming leadership, looking to them to push forward all sorts of much-needed economic, legal, and political reform.

In a recent interview with the Economic Observer newspaper, Shanghai-based constitutional scholar Tong Zhiwei expresses his own hopes that China’s coming decade will bring a renewed commitment to the principles of constitutional governance. As Tong explains, such a commitment to limiting state power and protecting individual rights would have profound ramifications for China’s economy, its legal institutions, and especially its political system.

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Constitutional Rule: Current Realities and Future Visions
Meng Lei
Economic Observer, November 3, 2012

Conscientiously Protect Citizens’ Fundamental Rights

Economic Observer [hereafter, EO]: A few days from now, the Chinese Communist Party will hold its 18th Party Congress and there will be a transition of the party’s central leadership. This year is also the 30th anniversary of the promulgation of the 1982 constitution. As a constitutional scholar, what prospects do you see for “ruling the country according to the constitution” in the coming decade?

Professor Tong Zhiwei. Photo: 21CCOM.net

Tong Zhiwei: It’s great that you’ve chosen to discuss things from the angle of ruling the country according to the constitution! To rule according to the constitution is a concrete requirement of constitutionalism; ruling according to the constitution means implementing constitutionalism, and implementing constitutionalism requires ruling according to the constitution. Governance is not an issue for ordinary citizens; it’s only a problem for state leaders and the ruling party. So, during the 18th Party Congress, it is necessary to discuss this fundamental issue.

Essentially speaking, the most important aspects of constitutionalism are, first, the need to implement the restrictions and checks on [the exercise of] supreme power provided for in the constitution and, second, the need to conscientiously protect all of the fundamental rights of citizens that are affirmed by the constitution.

In the 30 years since the current constitution took effect, constitutional implementation has made major achievements overall, but has also encountered some fairly major problems. We don’t lack for self-praise, so with respect to ruling according to the constitution I think I’ll focus on what hasn’t been done well and where it is necessary to exert significant effort to improve.

Whether one is talking about rule according to the constitution or constitutionalism, the first requirement is the need to place all public power under the regulation or restriction of the constitution and not allowing [the existence of] any power that is unchecked or not subject to restriction by the constitution. But in our country, there are some basic issues of constitutionalism that have yet to be resolved. For starters, have a look at the power [enjoyed by] the party secretaries in some cities and counties—how are they restrained by the constitution? The most extreme [example] is Bo Xilai when he was in Chongqing. There he was called a leader of the ruling party, but the constitution and laws that were established in accordance with party proposals were simply unable to restrain him. He was called the leader of the municipal party committee, but in fact [he ran] a personal dictatorship where local institutions of state power and other state institutions set forth in the constitution were only for show. Under these circumstances, how can it be acceptable not to reform?

Another requirement of rule according to the constitution or constitutionalism is the conscientious protection of citizens’ fundamental rights. Citizens’ fundamental rights refer to those individual rights affirmed in the constitution; rights that the state is obliged to protect. Over the past 30-plus years, our citizens’ fundamental rights have received fuller protection than they ever did in the past, but unfortunately, obvious defects exist. China is a country that strictly adheres to a statutory-law system in which the fundamental rights provided in the constitution generally must first be expressed through legislation before they can actually be protected. In reality, it remains an open question how to implement and how to use the law to protect these constitutional rights of citizens.

EO: Without special legislation, these specific constitutional rights cannot be protected. In other words, when these rights are subjected to restriction, the constitution is not enough to be used as a “shield.”

Tong: You’re a reporter, you’ve certainly heard sayings such as “there is freedom to research, but expression must be disciplined.” But can citizens’ fundamental rights be restricted through discipline? If so, it is the same as the deprivation of relevant fundamental rights.

Citizen’s fundamental rights can only be restricted by laws. Moreover, laws restricting fundamental rights cannot protect these fundamental rights in form but negate them in practice. Also, laws restricting citizens’ fundamental rights cannot violate the constitution, because laws that violate the constitution are invalid. Of course, this necessitates an effective system of constitutional review, or, as our constitution puts it, a system to “oversee constitutional enforcement.”

Here, it’s crucial to understand why all norms that are not laws, like administrative regulations, have no power to restrict citizens’ fundamental rights. The logic is simple. Taking China’s constitution as an example, if a fundamental right affirmed in a constitution that was passed by more than two thirds of all of the delegates to the National People’s Congress (NPC) could be restricted arbitrarily by central state organs like the State Council or by local state organs, it would effectively mean a veto over this right’s essence as a fundamental right and be no different in consequence from the constitution not affirming this right.

Of course, this is not to say that without legal protections citizens are entirely unable to enjoy these rights. Without corresponding legal provisions, citizens more or less still enjoy some fundamental rights affirmed in the constitution, but this kind of enjoyment lacks stable, reliable protection.

EO: Just now you were discussing constitutional rights that are not yet protected through specific laws. But in reality, there are some fundamental rights for which there is already specific legislation but the protection [of these rights] is still not ideal. What causes this?

Tong: There are many reasons that can lead to this kind of situation.

The first situation is that the legislation itself is problematic. Even though there are legal protections, things like violations of the principles of rule of law mean that the legislation doesn’t meet the standards of effective protection that are commonly necessary. For example, there are procedures in the Criminal Procedure Law that protect the right to personal liberty. According to rule-of-law principles, criminal coercive measures and investigative methods taken by investigative departments should be reviewed and approved by a court. But in the majority of situations our laws do not require review or approval by a court; rather, the public security departments decide and implement [these decisions] on their own. This is the case for residential surveillance, release on guarantee pending further investigation, seizure of property, monitoring, etc.

The second scenario is when laws exist but are not followed. This has been particularly noticeable in recent years. I won’t discuss this in detail; readers can recall some of the more notorious cases from recent years.

The third situation is when laws or administrative regulations violate the constitution. From a certain perspective, the system of reeducation through labor, which we have all had enough of, can be put in this category.

The fourth situation is when a law’s derivative laws or normative documents violate the constitution or the law but cannot be reviewed in order to remedy the situation.

Aside from this, there are also outrages committed by state agencies or officials who don’t follow any rules at all. These are even more terrifying.

Exercise Power, Rule in Accordance with the Constitution

EO: Besides protection through dedicated legislation, I’d like to ask you to discuss why courts can’t directly apply the constitutional provisions protecting fundamental rights. In this regard, didn’t we once discuss “judicialization of the constitution”?

Tong: Constitutional adjudication is different from ordinary judicial discretion. Valid constitutional rulings must effectively restrain all state agencies and officials, otherwise they cannot be considered constitutional rulings and would have no significance. Our courts have a lower status than the people’s congresses and their standing committees. It would be unimaginable for a Chinese court ruling to restrain the NPC and its standing committee or even the people’s congress and standing committee at its own administrative level. So, there is no way to accomplish this so-called “judicialization of the constitution.” However, even if we cannot judicialize the constitution, it is possible to implement constitutional review, or, as provided for in our constitution, the oversight of constitutional enforcement. Oversight of constitutional enforcement is a power of the NPC and its standing committee. A dedicated body ought to be established to deal with this matter. We’ve discussed this issue for decades, ever since 1982 when the constitution was promulgated. Unfortunately, it has yet to be resolved. What we can strive for at the moment is to establish a dedicated constitutional oversight body.

There has been much discussion of this subject. One of the more radical ideas is to have the NPC establish a constitutional committee, equal in status to the NPC Standing Committee, that would be able to review the constitutionality of all legislation except that passed by the NPC. A more moderate proposal is to establish a dedicated state agency under the NPC and its standing committee equal in rank to the State Council and the Supreme People’s Court. The most modest reform would involve setting up a special committee under the NPC, not an independent organ of the state, that would carry out specific review work related to oversight of constitutional enforcement and provide consultative opinions to the NPC and its standing committee. Whether it’s a constitutional court or constitutional committee, the most important thing is that it must not be all talk and no action.

EO: On September 15, 2004, Comrade Hu Jintao said in a speech at the “50th anniversary commemoration of the establishment of the National People’s Congress”: “In order to rule the country in accordance with the law, we must first rule in accordance with the constitution. In order to exercise power in accordance with the law, we must first exercise power in accordance with the constitution.” Nevertheless, when Lu Yongxiang, vice chairman of the NPC Standing Committee, said last week that China’s fundamental [task] going forward would be to “exercise power and rule the country in accordance with the constitution,” the media and the public still treated it as a major, noteworthy event. Why do you think that some comrades, like theoreticians and leading cadres, treat this subject as taboo?

Tong: If the constitution and laws are properly utilized, they can be used to resolve all problems. However, because many leading cadres are not familiar with the constitution, they don’t have a clear understanding about how to resolve problems within the framework of the constitution or law. When there is no effective implementation of the constitution or laws, much of the time it is mainly because of poor use by institutions of public power and their officials.

Moreover, it’s much easier to talk about doing things or governing in accordance with the constitution than it is to have correct understandings. A fundamental requirement of ruling in accordance with the constitution is, first, that those bodies that exercise constitutional state authority are themselves based in the constitution. In other words, the name of that body or official position can be found in the constitution. Bodies or official positions that are not named in the text of the constitution cannot exercise constitutional state power—that is most important. A big problem we currently face is that some party and governmental bodies commonly exceed their authority and exercise state power. All state power derives from the people, and the people express themselves legally through voting. Only organizations or persons that are directly or indirectly elected by voters are those that have been granted state power by the voters. At present, there are still many matters with which there is a gap from this standard.

EO: Returning to the constitution itself, how do you assess the results of constitutional amendments over the years?

Tong: I normally divide constitutional amendments into comprehensive and partial amendments. The 1982 constitution was a comprehensive amendment of the 1978 Constitution, while since 1982 the constitution has undergone four partial amendments. Without question, the 1982 Constitution is more advanced than the 1978 Constitution, and the current constitution is a relatively good one.

No matter whether one is talking about comprehensive or partial amendments, the biggest problem that has emerged in our country over the course of all previous amendments remains an insufficient mentality regarding constitutional enforcement. The constitution is emblematic of [the state of] democracy and rule of law, and without a constitution you cannot even speak of these things. So, in the past, consideration mostly went to creating a constitution in order to represent [these things], whereas relatively little consideration was given to how to seriously enforce it. This can be seen in the way that amended constitutions have immediately taken effect after their promulgation. Never once at the time of promulgating and implementing a new constitution was a thorough constitutional review of existing law, regulations, and other normative documents conducted and the results of it released.

The 1954 constitution was like this, and the 1982 constitution and the four subsequent amendments were each handled this way as well. In order to seriously enforce the constitution, there definitely needs to be a transitional period before it takes effect, during which time two things must be done in earnest: first, the enactment of necessary laws as concrete protections of the new fundamental rights affirmed in the new constitution; and, second, the weeding out of legal and regulatory provisions that contradict [the new constitution] and the announcement of [these provisions] as in violation of the constitution and abolished. You cannot say that this kind of new basic law can take effect immediately after it is announced. That’s impossible.

EO: Can you give a few examples of old laws or regulations that were in conflict with the new constitution or constitutional amendments at the time they were announced that should have been reviewed and abolished but never were?

Tong: There are too many. For example, the Methods for Custody and Repatriation of Urban Migrants and Beggars that led to the Sun Zhigang affair count as an administrative regulation that should have been sorted out and abolished at the time the 1982 constitution was promulgated and implemented, but it never was. Similarly, the State Council Decision on the Issue of Reeducation through Labor and its Supplementary Regulations, as well as the NPC Standing Committee’s Decision Regarding the Handling of Offenders Undergoing Reform through Labor and Persons Undergoing Reeducation through Labor who Escape or Commit New Crimes are normative documents that should at least have already been sorted out and abolished when constitutional amendments were promulgated to respect and protect human rights [in 2004] and to establish a socialist country under rule of law [in 1999].

EO: Just now you mentioned institutional regulations, which definitely include administrative regulations. This makes me think of some rules of government and administrative bodies, such [as those involving] so-called property tax, about which there has been furious speculation of late. I’d like your opinion: if the State Council or local governments pass new rules or revise old rules to levy a tax, would it satisfy constitutional principles?

Tong: The State Council is a state administrative body. Even though it is the highest state administrative body, for it to decide to levy a tax would not satisfy constitutional principles. The right to private property is a citizen’s fundamental right protected in the constitution. Moreover, the levying of taxes on citizens is a major state issue. Looking from these two perspectives, levying of taxes can only be decided through legislation passed by the NPC. I believe that the next amendment to the constitution should add some new provisions regarding taxation and financial budgeting in order to more fully protect citizens’ private property rights and the effective control over budgeting by people’s congresses at all levels.

Constitutionalism and the Economy

EO: Turning to look at economic development, how do you see the relationship between constitutionalism and economic development?

Tong: There is an extremely close relationship between constitutionalism and economic development. We need long-term, sustainable development. The American legal scholar [Richard] Posner once suggested that a state structured on separation of powers and the principle of checks and balances is the lowest-cost, most efficient constitutional system there is. In saying this he pretties-up their political system, but he makes a significant point about the relationship between constitutionalism and healthy, sustainable economic development. Historically, some totalitarian, dictatorial governments have sometimes appeared more efficient and able to make rapid and timely decisions about various matters. But they often make big mistakes and, once having made them, it is extremely difficult to rectify them, which leads to especially major economic waste. With a system of constitutionalism and rule of law, the situation is precisely the opposite. These days, we all talk about “low-carbon economics” and “green economics.” I think that constitutionalism is the rule-of-law low-carbon and green environment that most suits economic development.

There are many counterexamples in China. For example, during our history the Great Leap Forward and “Cultural Revolution” were economic disasters seldom seen in world history. Everyone knows that more than 10 million people starved to death during the Great Leap Forward and that the “Cultural Revolution” brought China’s national economy to the brink of disaster. These problems were all caused by China’s lack of constitutionalism and rule of law. They were economic disasters caused by flaws in the political and legal [systems].

EO: Since reform and opening, some constitutional changes such as provisions to establish a market economy and emphasize the status and role of the non-state-sector economy have fundamentally pushed forward our country’s economic development or, at least, played an irreplaceable role.

Tong: The state-sector economy certainly played an important role in the rapid economic development over the past 30 years, but first and foremost we must recognize that it was [the introduction of] new elements that brought about this sort of high-speed development, starting with the private economy and then the market economic system and the introduction of foreign capital through reform and opening. Under 30 years of the state-owned, planned economy, things didn’t go well. Then, after the constitution provided for the co-existence of a variety of economic actors and the implementation of the market economy, growth immediately picked up. But after things picked up, many people forgot [the reasons for this]. The [policy of] advancing the state sector and shrinking the private sector is, on some level, that is, to a real degree, following the old path and, it ought to be said, has no future. We will see that none of the modern economic powers with reasonably balanced development rely on a state-run economic sector, and some countries, such as the United States, can almost be said to have no state-sector economy. These are things we should consider but not necessarily replicate. I’m not advocating privatization but advancing the state sector and shrinking the private sector is definitely no good. China’s economic future mainly rests on the strong growth of the non-state economy. Our current economy is still a kind of “identity economy” in which things are unequal and [success] depends on the identity of the actor. We need to devise a way to fix this.

EO: What concrete reform measures could be [implemented] next to realize rule and governance according to the constitution? Put another way, in the next 10 years, in what areas should constitutional rule and governance be promoted?

Tong: I’ll make a few simple points:

  1. Institutions of the state and ruling-party organization, along with their powers, should return to the constitution. The ruling party ought to use its political leaders to have its positions written into the constitution and the laws, and recommend its trusted party-member cadres to positions in state organs through legal procedures. State institutions must truly take up the duties of state institutions and handle matters strictly according to the constitution and laws, rather than doing things according to speeches or temporary [policy] documents issued by one body or another. There should be a true separation.

  2. Enact necessary constitutional legislation. First of all, this includes a News Law and Publication Law to protect citizens’ freedom of speech and publication, an Association Law to protect the people’s right to form associations, and a Protection of Religious Freedom Law to protect citizen’s freedom of religious beliefs. The highest organ of state power should establish legislation to protect the fundamental citizens’ rights provided for in the constitution.

  3. Step-by-step, planned implementation of direct, competitive elections of people’s congress delegates at all levels. Even if for the time being we still cannot have direct elections of NPC delegates, we should at least gradually introduce direct election of local people’s congresses at all levels. There should be no problems with having direct competitive elections for local people’s congress delegates. If there are no competitive elections, the people’s congresses serve no representative function.

    Presently, people’s congresses clearly serve no representative function. For instance, consider the example of the recent incident in Ningbo, as well as those in Qidong and Shifang. We can see that in these incidents, people’s congresses did not participate substantively in making major local decisions, not to mention make those decisions themselves. Even if they had participated, they wouldn’t reflect public opinion. When there are matters that ought to be discussed before decisions are made and people’s congresses don’t even engage in substantive discussion, the results will be conflict appearing in the streets.

  4. Effective protection of judicial independence. An independent judicial system is an important sign of a modern nation. All types of disputes in society ultimately rely on resolution through the judicial system, but today, because courts and judges are not independent, judicial rulings lack the authority they ought to have. For this reason, the party and government always have to face social conflicts directly. This is extremely harmful to China’s stability and sustained development.

  5. Set up a body dedicated to constitutional review (or constitutional oversight and protection) and properly deal with review of the constitutionality and legality of derivative legislation and normative documents. It is because the 1954 constitution had no system for constitutional review that [the idea] silently died. In response to this lesson, the 1982 constitution specially enacted some provisions with the hopes that they would remedy the unfortunate deficiencies of the 1954 constitution. However, because for more than 30 years it has been all talk and no action, constitutional review today remains something relegated to paper only. In more than 30 years the highest organ of state power has not enacted the necessary procedural law and has not carried out a thorough review of the constitutionality or legality of laws or relevant administrative regulations. This is a major problem that concerns the unity of the state legal institutions, and one that ought to be resolved in a timely manner.

    I hope that the 18th Party Congress can set out an encouraging blueprint for the construction of constitutionalism for the coming decade. This would have profound significance for China.

 

Tong Zhiwei: Vice president of the China Constitutional Studies Association and professor at East China University of Political Science and Law