Thursday, August 6, 2015

China Mulls Harsher Penalties for Protesters, “Cults”; Fewer Capital Crimes

Director Li Shishi of the Legislative Affairs Commission of the NPCSC explains proposed Criminal Law amendments to the NPC on October 27, 2014. Credit:

In July, members of the National People’s Congress Standing Committee (NPCSC) published and opened for a one-month period of public consultation a set of proposals for amending China’s Criminal Law for the ninth time since it was overhauled in 1997. The proposals are a revision of an earlier draft first introduced in October 2014, and the NPCSC is likely to review a third (and probably final) draft of the proposed amendments at a bi-monthly meeting later this year.

The Chinese media has highlighted a number of overarching themes and new features in the proposed amendments. The draft introduces stronger provisions to combat terrorism and “religious extremism,” strengthens provisions connected to cyber-security, and imposes stricter anti-corruption measures.

Despite strong opposition from many in the legal community, the current draft also restricts lawyers from revealing certain types of case information and introduces harsher penalties for Article 309, “disrupting court order.” The sweeping crackdown on lawyers that Chinese authorities have carried out since July 10 places the significance of these provisions in a new light. (This topic will be covered in a subsequent post.)

This article focuses on provisions related to death penalty reform and the redefinition of punishments for protesters and “cult” members once commonly subjected to the now defunct system of reeducation through labor (RTL).

Death Penalty Reform

The current draft amendment proposes to remove the death penalty from nine criminal offenses (see below), which would bring the total number of capital crimes in China to 46. The removal of the death penalty from these nine offenses would not put much of a dent in China’s world-leading use of capital punishment, which largely focuses on homicide, rape, robbery, and drug offenses. It would, however, show the government continuing to make good on its pledge to work towards gradual abolition of the death penalty. The current proposal starts chipping away at the death penalty for offenses that involve a certain degree of violence, but since many of the 46 offenses that would remain eligible for capital punishment are non-violent in nature, China still has some way to go before it joins the growing ranks of abolitionist countries.

Crimes Slated to Remove Death Penalty
Article No. Offenses
151(1) Smuggling weapons or ammunition
Smuggling nuclear material
Smuggling counterfeit currency
170 Manufacturing counterfeit currency
192 Fraudulent fundraising
358(1) Organizing prostitution
Coercing into prostitution
426 Obstructing the performance of military duties
433 Spreading rumors and disinformation during wartime
Source: Dui Hua

At least two of the crimes, fraudulent fundraising and coercing into prostitution, recently stirred public controversies in connection with capital punishment. Wu Ying narrowly escaped execution when the Supreme People’s Court overturned the death penalty against her in May 2012. The decision followed several years of highly public campaigning on behalf of the young entrepreneur who was convicted of deliberately defrauding investors of 770 million yuan (approximately $100 million). Tang Hui—the “petitioning mother” who earned widespread public support after being sent to RTL in 2012—doggedly protested the unwillingness of the courts to sentence to death those convicted of forcing her 11-year-old daughter to work as a prostitute.

Though it is common to justify slower progress toward abolition with the presence of strong public support for the death penalty in China, there is resistance within China’s party and government institutions as well. According to reports, earlier drafts of the current amendments that circulated internally had proposed adding language to the Criminal Law’s general provisions specifying that the death penalty be limited only to the “most serious crimes.” This would have meant adopting the standard set in Article 6(2) of the International Covenant on Civil and Political Rights, which China has signed but not yet ratified. The language was ultimately dropped because of unspecified opposition.

Goodbye RTL, Hello Prison


Another aspect of the current amendments is changes made in response to the 2013 decision to eliminate RTL, a system of administrative custodial punishment used for decades to incarcerate individuals for up to three years for unlawful acts deemed too minor to pursue criminal punishment. With this tool of maintaining stability no longer available, the Criminal Law is being adapted to handle many of the kinds of cases that were previously dealt with through RTL.

One controversial example is the proposed amendment to Article 290(1), which covers “gathering a crowd to disrupt public order.” Citing the problem of individuals who engage in “persistent and disruptive petitioning” that disrupts work at government offices, drafters propose to expand this article to target those who fail to “correct” (gaizheng) their behavior after being given administrative penalties for “disrupting the work order of state organs on multiple occasions” and those who “disrupt social order by organizing or giving financial support to people for the purpose of gathering illegally on multiple occasions.” If the proposed amendment passes, these types of behavior—both of which might have been dealt with through RTL in the past—will be subject to criminal punishment of up to three years’ in prison.

Such changes amount to a complete redefinition of the offense currently covered by Article 290(1), given that it would apply to individual protesters regardless of whether they gather together with others. In the case of “organizing or providing financial support,” it is not even necessary for an individual to take part directly in any protest. Critics argue that it is potentially counterproductive to target individual protesters—many of whom are petitioners forced to resort to disruptive behaviors in order to draw attention to legitimate claims of injustice. As Tsinghua University law Professor Zhou Guangquan recently noted, “Criminalizing such acts will make it harder to carry out supervision and check that local party and government bodies are governing in accordance with the law.”

But the authorities have already signaled an intention to strike against those who engage in acts of public protest—whether as individuals or in groups—because of the perceived threat these disruptions pose to the stability upon which the political order supposedly rests. Together with the crime of “provoking a serious disturbance,” Article 290(1) has become a favored charge against activists who organize and demonstrate on behalf of social justice and legal reform, such as Xu Zhiyong or Guo Feixiong. In 2013, the Supreme People’s Procuratorate noted that illegal assembly and gathering crowds to disrupt social order were being carried out “with the goal of subverting state power.”

“Cult” members

Receiving less attention have been the changes proposed to Article 300, which covers the offense of “using a secret society, cult, or superstition to undermine implementation of the law.” Since 1997 this offense has primarily been used to target members of spiritual and religious organizations (like Falun Gong, Shouters, or Almighty God) that authorities have outlawed as “cults.”

There are presently two penalty ranges under Article 300 based on the severity of the offense as determined by a court. Ordinarily, “cult” activity carries a penalty of between three and seven years in prison, though certain mitigating factors or grounds for leniency can sometimes lead to sentences of less than three years. When there is a finding of “especially grave circumstances,” however, the court may impose a sentence of as high as 15 years.

Until recently, many of those accused of engaging in unlawful “cult” activities were not subject to criminal punishment. Instead, they were sent to RTL camps for up to three years—often multiple times. Though RTL camps were in many respects indistinguishable from prisons (and sometimes arguably worse), the punishment was still considered to be much more lenient than a prison sentence.

Since the elimination of RTL at the end of 2013, the only way for the authorities to punish those accused of “relatively minor” offenses related to “cult” activity beyond 10- or 15-day administrative detentions is through unlawful detention in “legal education centers.” In response, drafters have proposed an additional clause for Article 300 that would cover acts deemed to be “relatively minor” and make offenders subject to imprisonment of up to three years, short-term detention (lasting up to one year), “public surveillance,” or “deprivation of political rights.” Courts have also been empowered to impose monetary fines.

Perhaps in the spirit of the penal policy of “combining lenience with severity” (kuan-yan xiangji), the latest draft of the proposed amendment to Article 300 also proposes to raise the maximum penalty for “especially grave circumstances” to life imprisonment. According to the 1999 judicial interpretation covering Article 300, aggravating factors that can be considered “especially grave” include organizing groups or recruiting members across provincial boundaries, colluding with overseas organizations or persons, and printing or distributing very large quantities of propaganda. Also included in this category is a catchall of “inciting, deceiving, or organizing members or others to undermine the implementation of state law or administrative regulations that results in grave consequences.”

Drafters have not publicly offered any justification for this significant increase in the maximum penalty for Article 300 nor have they given any indication of what sort of activity might necessitate a life sentence. Considering that Article 300 relies on arbitrary determinations of when particular belief systems qualify as “cults,” the possibility of life imprisonment for violating this provision poses a particularly grave threat to religious freedom that is excessive given the kinds of acts that presently qualify for the most serious punishment under that statute.