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.