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Hu Yaobang in the 1984 criminal policy document Number 5 remains somewhat obscure, liangshao yikuan has not yet been repealed.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.