Thursday, September 19, 2019

“Two Restraints, One Leniency”: Part II, The Legacy of a Controversial Policy

In “Two Restraints, One Leniency”: Part I, Dui Hua looked at the origins of, and controversies over, this policy. It originated in a criminal policy pushed through the Central Committee as a part of Document Number Five by then-General Secretary Hu Yaobang in 1984. The policy called on law enforcement to be lenient towards criminal offenders from ethnic minority groups, by making fewer arrests and handing down fewer executions and lighter sentences to ethnic minority offenders. In Part II, Dui Hua looks at its legacy in Han-minority relations today and its current, still unsettled status.

The execution of Wo Weihan, an ethnic Daur accused of spying for Taiwan, indicated that members of ethnic minorities do not necessarily benefit from leniency in accordance with China’s policy of liangshao yikuan. Wo’s execution received widespread state media coverage in late 2008.  Image Credit: (大河网)

Liangshao Yikuan: The Current Status

There has been ongoing debate concerning the current status of Two Restraints One Leniency, or liangshao yikuan, since the Publicity Department, the State Ethnic Affairs Commission, and the United Front Work Department jointly issued a statement on policies toward minorities in 2010. Some observers believe that the policy has been abolished by virtue of this statement, which maintains that “everyone should be equal before the law, and all criminals should be punished regardless of ethnicity.” In 2014, the Fourth Plenary Session of the Eighteenth Central Committee of the Chinese Communist Party reiterated the principle of equality irrespective of ethnicity and incorporated equality as a core socialist value. Nevertheless, liangshao yikuan remains formally in effect because the joint statement cannot override an earlier national policy apparently promulgated by a superior authority, the Standing Committee of the Central Committee. Thus, while the actual hierarchy of authority regarding the policy initiated by then-General Secretary Hu Yaobang in the 1984 criminal policy document Number 5 remains somewhat obscure, liangshao yikuan has not yet been repealed.

Academics cannot reach a consensus concerning how liangshao yikuan is being implemented across China. Prior to his imprisonment, prominent Uyghur scholar Ilham Tohti expressed support for repeal in an interview in 2012. He claimed that abolition would be easy because the policy itself was not being enforced in ethnic regions. Another opinion published by legal scholar Chen Lanxin on the social media website Douban states that the policy is implemented only “to some extent.” His argument highlights the ambiguity about how liangshao yikuan is being enforced, or even fundamentally understood. Such a status is also underpinned in the findings of a doctoral thesis by a Uyghur scholar, Erken Shumamshak, who points out in a 2013 article that judicial personnel in minority regions may not be cognizant of liangshao yikuan despite over 30 years of its existence. The author found that a number of judicial personnel in the cities of Urumqi, Kashgar, Hotan, and Tacheng in Xinjiang had “never heard” about the policy. Another study conducted among judicial officials in Gansu’s Tianzhu Tibetan Autonomous County indicated that ethnicity played no role in law enforcement because the officials claimed there were no marked political, economic, or cultural differences between Han and ethnic minorities in the county.

Beyond Liangshao Yikuan: Security Trumps Leniency

Policy makers in the 1980s might not have foreseen the complex problems brought about by the increase in inter-ethnic contact in the subsequent decades, resulting from the mass migration of Han Chinese to traditionally minority regions in China’s interior. Eastward migration to traditionally Han Chinese cities by ethnic minorities on the lookout for better job opportunities, albeit on a smaller scale, has also contributed to the surge of inter-ethnic conflicts. Although the arguments against liangshao yikuan are not entirely without grounds, recent public discussions reveal the rise of Han chauvinism in both physical and virtual spaces. While stressing that preferential policies for ethnic minorities violate the right to equality, many critics fail to realize that ethnic minorities today face discrimination in many other respects. For instance, Tibetans and Uyghurs are placed on a security blacklist when they seek accommodations in major cities. Their right to travel both internationally and abroad is severely restricted because their passports have been seized in a bid to tighten control over their movements.

While Han Chinese widely believe that liangshao yikuan has contributed to an increase in petty crimes by ethnic minorities, some critics believe that the policy’s negative effect has been exaggerated. A 2010 article originally posted on a website founded by Ilham Tohti, (no longer valid), claimed that the problem of Uyghur petty thieves is chiefly caused both by the lack of social mobility among Uyghurs and the criminal policy that exempts children under the age of 14 from criminal liability, rather than liangshao yikuan. The age of criminal responsibility has likewise benefited many Han Chinese juvenile offenders. Prominent Tibetan blogger Woeser has written that the policy of restraints and leniency has virtually no effect on political cases.

Woeser’s argument is in line with Dui Hua’s observation that ethnic minorities receive excessive punishment in endangering state security cases. The offenses of splittism and inciting splittism are almost exclusively used to punish Uyghurs, Tibetans, and, to a lesser extent, ethnic Mongolians. Dui Hua’s Political Prisoner Database (PPDB) indicates that, since 2000, over 180 ethnic minority prisoners were sentenced to ten years’ imprisonment or more severe sentences, including life imprisonment, death with reprieve, and death, for these two offenses. Two-thirds of them are Uyghurs, while the remainder are mostly Tibetans. In regard to death sentences specifically, Dui Hua’s research found that five Uyghurs were sentenced to death for splittism alone, and five Uyghurs for splittism combined with terrorism or other charges. The number of ethnic minority offenders receiving harsh sentences for splittism or inciting splittism is strikingly high compared to Han Chinese democracy activists sentenced for subversion and inciting subversion, which are also categorized under endangering state security. Dui Hua’s PPDB showed that about 50 prisoners, 37 Han and 13 others with unclear ethnicity, have received prison sentences of ten years or more since 2000 for subversion and inciting subversion.

The principle of restraints and leniency has been largely superseded by the “War on Terror,” after China employed similar rhetoric from the U.S. to justify the anti-terrorism campaign following the September 11 attacks in 2001. After 2009, propaganda offensives against the “three evil forces” of terrorism, ethnic separatism, and religious extremism have intensified. China’s 2019 white paper on national defense reported that Xinjiang’s armed police forces have broken up 1,588 terrorist gangs and captured 12,995 terrorists since 2014.

Based on information selectively publicized by Chinese government sources, many of these terrorists are believed to be Uyghurs. Of the over two dozen people sentenced to death in connection with the 2009 Urumqi Riots, at least two were Han Chinese, whereas the remainder are thought to be Uyghurs. A decade on, those who are continuing to serve their lengthy sentences for splittism or inciting splittism are almost exclusively Uyghurs, including Gulmire Imin and Gheyret Niyaz. None of them are known to have received any sentence reductions or other forms of clemency.

There are additional coercive measures targeting Xinjiang’s Muslim minorities. Dui Hua previously reported on educational placement (anzhi jiaoyu 安置教育), a coercive measure which targets prisoners considered “a danger to society,” even when they have completed their sentences for terrorism or extremism offenses. The measure provides no time limit for how long someone can be held under the measure, leaving open the possibility of de facto life imprisonment. It has been used exclusively against Uyghurs and ethnic Kazakhs. Today, these two Muslim minority groups are facing repression unprecedented in China, as exemplified by the massive internment camps which are said to house over one million people across the autonomous region, as well as intensive surveillance, enabled by artificial intelligence, of those not, or no longer, confined to camps.

There is little evidence to suggest that liangshao yikuan serves to mitigate criminal sentencing when members of other ethnic groups are accused of endangering state security, even outside of restive Xinjiang and Tibet. Tong Daning (佟达宁), an ethnic Manchu, and Wo Weihan (沃维汉), an ethnic Daur, were sentenced to death in 2005 and 2007, respectively, for spying for Taiwan amid the strained cross-strait relations during Chen Shui-bian’s presidency. Tong, who spent many years working at the Ministry of Foreign Affairs before taking a senior position at the National Council for the Social Security Fund, was one of the top Chinese officials to have been executed for providing top military secrets about China’s military preparations against Taiwan. As part of the anti-spy propaganda in China, videotapes of Tong’s trial were distributed as a deterrent to civil servants. Wo, an entrepreneur and medical scientist, was convicted of providing photocopies of a missile defense system and information on a senior leader's health to a Taiwanese intelligence agency. Wo’s execution in 2008 was strongly condemned by the European Union and U.S., which had sought a stay of execution.

Example of reporting on the execution of Wo Weihan. In the photo accompanying this article, which takes up four columns, he is shown in happier days at his daughter’s wedding.
Image Credit: (大河网)

Other discriminatory rules and practices against ethnic minorities prevailing in the carceral system are much in evidence. For example, Dui Hua has reported that clemency provided to prisoners convicted of the now-defunct offense of hooliganism has a clear ethnic bias against non-Han. Unlike Han Chinese who were considered for clemency a few years into their sentences, the same opportunity was not given to Uyghurs possibly (based on the date, as no precise reason is given in the judgment) sentenced for their involvement in the 1997 Ghulja Incident—demonstrations in the Xinjiang city of Ghulja, or Yining in Mandarin Chinese, which ended with repression by the Chinese military—until they had served many more years of their sentences. Finally, prisoners from ethnic minorities who fail to comply with the Mandarin-language-only visitation rules also have slimmer prospects for obtaining clemency than Han Chinese.

Whither Liangshao Yikuan?

The policy of liangshao yikuan might have saved the lives of many ethnic minorities from execution during the Strike Hard campaign in the 1980s, when the party deemed it necessary to preserve interethnic harmony as it countered the surge in criminal offenses across Han Chinese cities following the economic reforms. Nevertheless, as we have seen, the need to safeguard state security trumps liangshao yikuan, especially in Xinjiang and Tibet, where the majority of China’s endangering state security cases are believed to take place today. The role of liangshao yikuan in restraining harsh punishments and enabling lenient treatment for ethnic minority offenders has virtually disappeared in cases deemed to endanger state security. The same state security rationale has produced a spate of prejudicial rules, measures, and harsh sentences intended to suppress separatist sentiments. It is likely, in fact, that these policies are responsible for negative outcomes instead: higher levels of interethnic tensions, more grievances, the desire for greater autonomy or even independence by ethnic minority groups, and more efforts to flee the country by minorities who fear for their lives and safety.

There is no easy way to strike a balance between tolerating ethno-cultural diversity and promoting interethnic harmony. Hu Jintao’s rhetoric of building a “harmonious society” contrasted sharply with the incidents of ethnic unrest that began to occur towards the end of the first decade of the 21st century. The continuing incidents of interethnic violence into the Xi Jinping era have been widely seen as proof of the failure of the liangshao yikuan policy by both Han and other ethnic groups. The fact that Xi continues to blame “hostile foreign forces” for instigating ethnic problems demonstrates Beijing’s reluctance to change the status quo. The controversy surrounding “Two Restraints, One Leniency” is only the tip of the iceberg of China’s ethnic relations challenges. Even if Xi accepts the mainstream desire to have liangshao yikuan repealed, China’s ethnic policies will still fall far short of the principle of equality before the law, as long as China’s overall domestic strategy is to maintain stability by indiscriminately suppressing ethnic minorities.

Wednesday, September 11, 2019

“Two Restraints, One Leniency”: Part I, China’s Ethnic Minorities and Criminal Law

An image of an early propaganda poster (1964), that states, "Long live the great unity of all ethnicities across the country," from a discussion of "Two Restraints, One Leniency" reposted by Tibetan blogger Woeser in 2014. Image Credit: Woeser Blog

China’s criminal policy of “Two Restraints, One Leniency” (liangshao yikuan 两少一宽) was enacted during the administration of reformist leader Hu Yaobang (1982-1987). Derived from a Soviet-era policy that granted regional autonomy and preferential protection to ethnic minorities, the policy had the intended purpose of strengthening the political loyalty of ethnic minorities in the multi-national country. Hu believed that granting sufficient autonomy to members of ethnic minority groups was indispensable for safeguarding national unity. To this end, Hu improved ethnic representation in politics across autonomous regions. This progressive policy was reversed by Deng Xiaoping and Hu’s successors. In 1984, Hu pushed through the Central Committee Document Number Five, a new criminal policy which called on law enforcement to be lenient towards criminal offenders from ethnic minority groups by making fewer arrests and handing down fewer executions and lighter sentences to ethnic minority offenders.

The policy has been a source of contention since its promulgation. Supporters of the policy argue that it embodies the government’s deep respect towards China's diverse population and upholds the ideal of “ethnic unity.” Critics of the policy have become increasingly vocal following a spate of violent attacks involving Uyghurs on Han Chinese targets after 2009. They argue that the policy runs counter to the principle of equality before the law. Preferential treatment towards ethnic minorities stokes anger within a large segment of China’s Han population. Many Han Chinese claim to have experienced discrimination because of prejudicial law enforcement, or because ethnic minorities have been exempt from strict policies restricting family size and have easier access to tertiary education and lower business taxation rates – many of which are legacies from reformer Hu.

This article, the first of two on this topic, serves to provide an overview of public opinion from the two opposing camps in the liangshao yikuan controversy. Despite being a national criminal policy, liangshao yikuan has been enforced only to varying degrees across the country. In matters relating to state security, today the policy is largely disregarded. The instrumental use of the policy to further the interests of the state has left the treatment of ethnic minority offenders highly unpredictable, and dependent on the political climate of the day.

The Argument by Supporters

An article published in 1991 by the Journal of Qinghai University for Nationalities, entitled “We Must Enforce ‘Two Restraints and One Leniency’ for Criminals from Ethnic Minorities,” has been widely circulated by supporters of liangshao yikuan. The article claimed that ethnic minority communities were “culturally and economically behind” their Han counterparts, and called for more lenient policies towards them. In Qinghai, liangshao yikuan was said to be enforced in six major types of criminal cases: rape, hooliganism, bigamy, assault, murder, and crimes triggered by historical grievances or mass disputes. The authors stated that sex crimes inflicted a lesser degree of social harm on ethnic minorities than other crimes. Statutory rape, for instance, was generally not perceived as heinous in the ethnic regions. According to the article, liangshao yikuan protects ethnic minority women from social stigma, because many Tibetan, Mongolian, and Monguor women in the province faced mockery or discrimination as victims of sex abuses. The authors claimed that these women would suffer even more humiliation within their communities if offenders received severe punishments.

The authors also argued that liangshao yikuan was designed to protect ethnic minorities from China’s first Strike Hard (yanda 严打) campaign in the early 1980s, during which criminal offenders were given “swift and severe” punishments, with sentences up to immediate execution, not only for violence or trouble-making, but also for other non-violent acts seen as “immoral.” The offense of hooliganism could have landed tens of thousands of ethnic minorities in jail, since “immoral” behaviors such as premarital sex and promiscuity remained commonplace in minority communities, said the authors.

A major argument for liangshao yikuan is premised on the political need to maintain stability and interethnic harmony: a rigid application of the Criminal Law, irrespective of cultural differences, is bound to provoke ethnic resentment across the nation. Supporters of liangshao yikuan say that by giving flexibility to law enforcement, the policy pays respect to ethnic diversity. The 1991 article also stated that the Criminal Law was at odds with numerous ethnic minority traditions, particularly regarding marriage. Although concubinage, polygamy, and polyandry had shown signs of abating after 1949, some of these practices remained commonplace in the Islamic and Tibetan communities in Qinghai. Under the Criminal Law, many people in these regions would have been convicted of bigamy.

On a propaganda poster from the early years of the People’s Republic of China: “All ethnic groups in our country have united to become a great free and equal family of nationalities.”
Image Credit: Woeser Blog
Legal awareness in China remained weak even after the Criminal Law was enacted in 1979. Ethnic minorities typically resorted to their own customs and traditions to resolve inter- and intra-ethnic disputes. In cases in many minority communities that involved violence, offenders offered compensation, either monetary or non-monetary, to the victim’s family in exchange for forgiveness; the 1991 article contrasts this with what it claimed was the Han Chinese deeply-rooted retributive belief in “a life for a life.” In handling members of ethnic minorities involved in incidents “involving mass weapons resulting from interethnic disputes,” the authors called on the government to give severe punishments selectively to ringleaders, masterminds, and those who caused serious injuries or deaths, while generally observing the policy of leniency for ordinary participants, in order to minimize inter-ethnic resentment

Ethnic minorities’ religions, customs, and traditions varied from region to region, and their psychology and concept of law differed greatly from those of the Han Chinese, according to the article: “Imposing a set of laws in the Han areas [that also apply to ethnic minorities] will inevitably lead to political chaos and intensify contradictions among ethnic groups, thus creating new political inequalities.”

The Abolitionist Argument

The arguments put forward by supporters in the 1991 article are now widely seen as anachronistic. Even if the arguments held true, many of them have lost validity because the problems liangshaoyikuan sought to address have largely ceased to exist. In the four decades of modernization following China’s reform and opening, many of the customary practices and marriage traditions that could have triggered confrontation between ethnic minorities and the criminal justice system have weakened or died out.

The policy has garnered fierce criticism among Han Chinese who believe that liangshao yikuan has turned into a privilege pertaining exclusively to ethnic minorities in their interaction with Han Chinese. For example, many Han feel that law enforcement is lax when it comes ethnic minorities’ practices, such as operating unlicensed businesses in street stalls or selling banned animal products. In recent years, the policy has been blamed for causing a surge of Uyghur thieves, pickpockets, and aggressive purveyors of street foods in urban areas, like the so-called “nut cake gangs,” Uyghur street vendors who coerce customers into paying exorbitant prices for large portions of traditional Uyghur confectionary. Because of a high level of negative media coverage, language barriers, and, more importantly, liangshao yikuan, many Han Chinese believe law enforcers typically let Uyghur offenders off lightly compared to Han Chinese, thus inciting them to commit more petty crimes and even violence.

Today, Uyghurs are universally blamed in state discourse when they are involved in incidents of ethnic unrest. In the aftermath of the 2009 Shaoguan Incident (a brawl between Uyghur and Han workers at a Guangdong toy factory that turned violent), the Urumqi Riots, also in 2009, and a series of terrorist attacks both inside and outside of Xinjiang, China’s Internet has been filled with expressions of anti-Uyghur sentiments. After the Kunming train station attack in 2014, state news media reports even ascribed cases of terrorism, splittism, and incitement to the liangshao yikuan policy. A policy originally designed to promote ethnic harmony has instead exacerbated the rift between Han and other ethnic groups. In view of its deleterious impact, many legal experts have advanced proposals to phase out the policy. From a legal point of view, liangshao yikuan serves only to provide guidance and is not criminal law per se. Using a government policy as a basis of conviction in place of law runs counter to the legal principle of no penalty outside the law.

In the absence of a unified nationwide standard, it was to be expected that judicial officials throughout the country would have different understandings of how liangshao yikuan should be implemented. For example, in 1992, legal scholar Ma Kechang proposed that the policy be indiscriminately applied to all ethnic minorities, regardless of the locations of their residences. Another school of thought, proposed in 1988 by legal scholar Zhou Mohen in China Legal Science, advocated for restricted application: only ethnic minorities with a low level of education residing in the autonomous regions should benefit from it (i.e., excluding minority migrants residing in urban areas). In recent years, some experts have argued that liangshao yikuan has fulfilled its mission to safeguard the lives of many ethnic minorities in the historical context of the Strike Hard campaign. They suggest adopting the policy of “combining leniency and severity” (kuanyanxiangji 宽严相济) in place of liangshao yikuan, because in 2010 the Supreme People’s Court issued a judicial interpretation to clarify the use of this new legal principle. The interpretation calls for the use of discretion in granting prisoners clemency and lenient punishment in cases considered “less heinous” by society, such as those involving juvenile or elderly prisoners. More importantly, the policy has the stated purpose of preventing and reducing crime without ethnic preference or bias.

Stay tuned for Part II next week.