On July 20th of 1999, the former President of China Jiang Zemin waged the political campaign to persecute Falun Gong, from personal motives, envy, and resentments. Falun Gong, a popular traditional Chinese practice, and the recipient of numerous proclamations from all over China at the time, suddenly became the target of defamation and attacks. Over the course of the five-year persecution, many Falun Gong practitioners have been arrested, beaten, imprisoned, and even tortured to death. The Jiang regime's persecution of Falun Gong has not only violated international human rights principles, but also severely violated the current Chinese Constitution and Laws. In order to deceive the public, Jiang has gone all out in taking advantage of superficial regulations to cover up his real motives, and disguised with the so-called "legal" lingo, he has brutally trampled human rights. In this paper, I will analyse how the persecution of Falun Gong is in direct violation of Chinese Law from several perspectives.
1. The Illegality in Legislation
On July 20th of 1999, when the persecution began, the Department of Civil Politics, the Department of Labour, the Department of Human Affairs, and the Department of Public Security issued simultaneous administrative documents to suppress Falun Gong, but such actions did not conform with any legal procedures. When individual departments in the central government issue regulatory administrative documents, they do so within their own jurisdictions. Scholars and experts at each department discuss the situation before making a decision regarding whether or not these administrative documents should be issued. However when several departments in the central government simultaneously issued administrative documents to suppress Falun Gong, it became obvious that they were merely following Jiang Zemin's orders. Jiang alone represented the Chinese Communist Party (CCP), the Chinese government, and Chinese Law, and issued these administrative documents. The entire procedure violated the law. Of course, in essence it was Jiang himself who violated the law.
Later, Jiang tried to defame Falun Gong during his visits to foreign countries. In October, 1999, Jiang's regime ordered the Standing Committee of the National People's Congress, which Chinese people refer to as "the dictator's rubber stamp," to make the so-called "Decision" (the Decision of the Standing Committee of the National People's Congress to Ban Heretical Organisations, Preventing and Punishing [slanderous word omitted] Activities). During the process of discussion and drafting, many righteous law scholars and democratic activists strongly opposed this decision. Nevertheless, the Standing Committee failed to successfully oppose Jiang's immense pressure. The committee eventually drafted the "Decision." The "Decision" didn't specify that it was targeting Falun Gong, but Jiang ordered the legislative body -- the Standing Committee of the National People's Congress, to make the so-called "Decision." Any knowledgeable person can discern its illegality. The "Decision" was Jiang's "legal frock" that he used as a dress-up to deceive the Chinese people in the persecution of Falun Gong.
2. The Illegality of Administrative Punishment and Detention
"The violations of the order of executive commands by citizens, legal persons or other organisations that merit administrative punishments shall be stipulated by laws, regulations, or rules according to this law and the punishments are to be administered by administrative organs according to procedures stipulated in this law." An administrative organ is an organisation with the law-endowed right to conduct certain administrative functions. For example, the Department of Public Security, the Department of Industry and Commerce, the Department of Revenue, the Department of Environmental Protection, and others are administrative organs. An administrative organ must perform its administrative function according to the jurisdiction specified by law, and should be able to bear its own legal responsibilities independently. The CCP committee and an agency specifically created to persecute Falun Gong, with absolute power over each level of administration in the Party and all other political and judiciary systems called "610 Offices" are not administrative organs. The fact that CCP committees at various levels, in their own names, carry out administrative functions such as issuing fines and restricting people's freedom is therefore in itself a violation of law.
Administrative punishment of citizens, legal persons, and/or other organisations must be performed in strict accordance with "Administrative Punishment Law of People's Republic of China" (abbreviated as "Punishment Law" in the following text) and related regulatory laws. The most commonly seen punishments are fines, warnings, confiscating illegally-gained income and property, administrative detention, etc. We often see the administering of fines as punishment of Falun Gong practitioners that have usually been issued by organisations without any punishment jurisdiction, such as prisons, forced labour camps, detention centres, CCP committees, "610 Offices," neighbourhood administrative offices, and neighbourhood committees. These people are violating the law when they fine practitioners or charge the practitioners using justifications such as ordering practitioners to pay a "deposit fee." Organs with punishment jurisdiction, for example, such as the police stations and the police department, violate the law when they demand excessive fines or fine practitioners without following any legal procedures. The majority of such fines are illegal.
"The Security Administration Punishment Act of the People's Republic of China" (abbreviated as "Security Administration Punishment Act" in the following text) stipulates in Article Six, "Fines from one yuan (Yuan is the Chinese currency; 500 yuan is equal to the average monthly income for an urban worker in China.) up to not more than two hundred yuan." Special stipulations can be found in Article 30, 31, stating that "Prostitution, visit to prostitutes, soliciting clients for prostitutes, or sheltering prostitutes and prostitute clients... with a fine of up to five thousand yuan when necessary... Whoever illegally cultivates plants for narcotic drugs, such as opium poppy, will be subjected to fines of not more than 3,000 yuan. Those who gamble or propagate pornographic materials will be subjected to fines of not more than 3,000 yuan." For all other transgressions, the fine should be below 200 yuan, otherwise it is a violation of the law.
"Punishment Law" has strict regulations regarding both procedure and implementation of punishment. Article 42 stipulates, "An administrative organ, before making a decision on an administrative penalty that involves ordering for ...or imposition of a comparatively large fine, shall notify the party that he has the right to request a hearing... To request a hearing, the party shall do so within three days after being notified by the administrative organ." If the administrative organ fails to notify the party of the right to request a hearing, it constitutes a violation of the law and the fine is annulled. Also, a written document shall be issued regarding the decision on the fine, and the document should be directly delivered to the party being fined. Article 46 in "Punishment Law" states that, "The administrative organ that makes the decision on a fine shall be separate from the organ that collects the fine. Except for circumstances under which fines shall be collected on the spot according to the provisions of Articles 47 and 48 of this Law, no administrative organs that make the decision on administrative penalty or their law-enforcing officers shall collect fines themselves." That means, it's an illegal act if the administrative organ that makes the decision on a fine collects the fine. As for the party being fined, "The parties shall, within 15 days from the date they receive the documents of the decision for administrative penalty, pay the fines to the banks, as designated. The banks shall accept the fines and turn them over directly to the State Treasury." Under most circumstances, it is a violation of law that law-enforcing organs or law enforcers collect fines themselves.
Administrative detention is one of the three types of punishments handled by public security organs against those violating the Security Administration by restricting the personal freedom of the violator(s).
Article Six in "The Security Administration Punishment Act of the People's Republic of China" stipulates "Detention - from one day up to not more than fifteen days."
The legal basis for punishment under administrative detention is "The Security Administration Punishment Act of the People's Republic of China." It is up to the Department of Public Security to make a decision in writing for administrative detention and notify the party of his/her legal rights before the administrative detention is administered. Police stations don't have the right to make decisions for detention. The facts about the party's violation of security administration decisions must be investigated within six months. The party enjoys the right to appeal and defend him/herself.
Article 40, item 2 in "The Security Administration Punishment Act of the People's Republic of China" stipulates that "in cases where the party sentenced to detention or his family members find a warranter or pay the required bail, during the appeals and court hearing of the lawsuit, the original sentence should be reprieved. The bail should be returned according to applicable regulations when the sentence is annulled, or at the beginning of the execution of the sentence." The public security organ should notify the party of these rights in written form. But in reality, most detainees are deprived of these rights. The majority of public security organs violate the law to a serious extent in cases involving "security administration punishment."
On July 20th of 1999, many Falun Dafa practitioners went to Beijing to appeal. When they were arrested and sent back to their hometowns, most of them were subjected to administrative detention, and many were subjected to criminal detention. An appeal is the basic right of a Chinese citizen to report the real situation to the government. In spite of this, the public security organs held practitioners in detention with the caveat of practitioners "disrupting the social order and making trouble." Their acts and procedures are illegal.
3. The Illegality in Executing Reeducation-Through-Labour
Reeducation-through-labour is a measure to educate labour camp detainees through forced labour. It's also an approach to arrange a job for detainees. Those who are subjected to reeducation-through-labour should be paid according to the amount and quality of their work.
The legal basis for education-through-labour is the "Decision of the State Council Regarding the Question of Reeducation Through Labour," approved by the Standing Committee of the National People's Congress in August 1957, "Supplementary Provisions of the State Council on Reeducation through Labour," approved by the Standing Committee of the National People's Congress in November 1979, "Trial Implementation Methods for Reeducation through Labour" and Security Administration Punishment Act, etc.
The aforementioned acts contain detailed stipulations regarding who should be subjected to reeducation-through-labour. It is clear that those who have violated the law or violated certain regulations in big cities or medium-sized cities shall be subject to forced labour. Such punishment is not applicable to people in the countryside who act unlawfully.
Article I of the "Decision of the State Council Regarding the Question of Reeducation Through Labour" states that "Categories of persons to be taken in for reeducation through labour include:
Those who fail to attend to one's work and duties properly and commit hooliganism, or those who commit theft, defraud, or violate social security regulations and refuse to make amends.
Counter-revolutionary elements who commit minor offences that are not eligible for criminal penalties, those who are against the Communist party and socialism and are expelled from employers or schools and unable to make a living.
Those with a job but refusing to work for an extended periods of time. Those who interfere with rules of labour and constantly create trouble, disturb the production order and work order, the order of teaching, scientific research and normal life, or those who are expelled and unable to make a living.
Those who disobey work assignments or disobey job arrangements after being transferred to civilian work from the army, or those who refuse to work and constantly create trouble, disturb the production order and work order and refuse to make amends."
Article 10 of the "Trial Implementation Methods for Reeducation through Labour" states,
"Categories of persons to be taken in for re-education through labour:
Counter-revolutionary elements who commit minor offences that are not eligible for criminal penalties, and those who are against the Communist party and socialism.
Those who associate with groups which have committed murder, robbery, rape, arson, etc. but are not eligible for criminal penalties.
Those who commit hooliganism, prostitution, and fraud, who refuse to mend their ways despite repeated admonition but are not eligible for criminal penalties.
Those who disturb the public order, including gang members who engage in group fights, provoke trouble and incite uproars that are not eligible for criminal penalties.
Those with a job but refusing to work for an extended period of time, those who interfere with rules of labour and constantly create trouble, disturb the production order and work order, the order of teaching, scientific research and normal life, and those who hinder execution of public works and refuse to amend.
Those who incite others to commit crimes but are not eligible for criminal penalties."
In addition, Article 30 and 32 of "Security Administration Punishment Act" state:
"Prostitution, visit to prostitutes, soliciting clients for prostitutes or sheltering prostitutes and prostitute clients is strictly forbidden. Any offender is subject to detention of not more than fifteen days or a warning, or is ordered to make a statement of repentance, or will be given a punishment of rehabilitation through labour according to regulations."
The aforementioned articles restrict the scope of the categories of persons to be retained for reeducation through labour. No one is allowed to expand the scope at will. Therefore, subjecting Falun Gong practitioners to reeducation through labour doesn't have any legal grounds. Moreover, written notification is required for execution of reeducation through labour, and the party shall be notified that if he/she thinks the decision is unfair, he/she has the right to appeal for re-judgement and to file an administrative lawsuit with a court. Failure of notification violates the law. The party has the right to file an administrative lawsuit on the day he/she receives the sentence or within two years after his/her release from the labour camp. The courts must accept such cases! After July 20, 1999, the Supreme Court notified courts at all levels not to accept lawsuits Falun Gong have practitioners filed. The notification obviously violated "Administrative Litigation Law of the People's Republic of China." The Supreme Court knows very well that Jiang's suppression of Falun Gong is a severe violation of the Chinese Constitution and laws.
"The Detailed Regulations Regarding Execution of Reeducation Through Labour" have stipulated a relatively relaxed management for detainees in forced labour camps. Article 12 of "The Detailed Regulations" states, "Letters and Communications of persons subjected to forced labour shall not be inspected. Exceptions apply if there are special regulations in rules of law."
Article 17 of "The Detailed Regulations" states, "The forced labour camps allow detainees to meet their spouse, lineal relatives, and collateral relatives within three generations."
Article 23 states, "Labour camps may allow detainees to live together with their spouse coming to visit, if conditions allow."
Article 24 states, "Labour camp detainees take breaks on national holidays inside the camp" and those who behave well in the camp are allowed to take vacations and visit their families.
Article 65 states, "During the detainee's term in reeducation through labour, if there is special difficulty at home or the original work unit is in bad need of the detainee, the detainee may finish his term outside the camp."
It has also been stipulated in other articles that only under the circumstances that the labour camp detainee tries to escape, commits violence, or disrupts public property can the labour camp apply restriction instruments. However, only handcuffs are allowed. Handcuffing a detainee behind the back, applying both handcuffs and shackles, or handcuffing the detainee to an object is forbidden. When the reeducation term is over, the detainee shall be released on time. Prolonged detention is prohibited.
Reeducation through labour is a "speciality" in China. Its legality has long been the subject of tremendous controversy in the legal community because reeducation through labour actually violates the Criminal Law. Criminal Law has stipulated that the relative light sentence for criminals could be imprisonment of not more than three years, or detention/custody or probation. While "Categories of persons to be taken in for reeducation through labour" are "not eligible for criminal penalties," they can, however, be sentenced for up to three years. That is to say, criminals eligible for criminal penalties can be subjected to custody, detention, or probation, while those who are not eligible for criminal penalties can be deprived of their personal freedom for up to three years during reeducation through labour. Moreover, the conditions in many labour camps are extremely terrible. Many say that forced labour is much more severe than imprisonment. That is precisely why many democratic countries criticise China for human rights violations such as imprisonment without trial. Many experts and scholars in the legal community have demanded that reeducation through labour be revoked, but have encountered resistance from stubborn conservatives in China. Since the initiation of the suppression of Falun Gong, Jiang's regime has invested vast amounts of national capital in the construction of forced labour camps. The creation of a more perfect legal system in China is unfortunately heading in the opposite direction.
4. Illegality in Criminal Punishments
Article 35 of the Constitution of the People's Republic of China states, "All Citizens of the People's Republic of China enjoy freedom of speech, of the press, of assembly, of association, of procession, and of demonstration."
Article 41 of Constitution states, "Citizens of the People's Republic of China have the right to criticise and make suggestions regarding any state body or functionary. Citizens have the right to submit to relevant state bodies complaints or charges against, or exposures of, violation of the law, or dereliction of duty, by any state body or functionary."
It is therefore clear that it is the basic constitutional right of every Chinese citizen to appeal, file lawsuits, and report to different levels of governments and legal organs about Jiang regime's suppression and persecution of Falun Gong, and its defamation and framing Falun Gong and the founder of Falun Gong. However, it is precisely because Falun Gong practitioners exercise their rights according to law that Jiang's regime puts them in prison and forced labour camps in large numbers. Everyone knows that all media in China are state-run. When Chinese citizens want to express their views and speak out the truth, the state organs usually will not grant them approval. They can therefore only take the approach of handing out leaflets, CDs, and exchanging information over the Internet. All content in the leaflets and CDs made by Falun Gong practitioners is true information and in compliance with the law. There is not a single rule of law in China stipulating that handing out leaflets or making CDs as non-profit material is a violation of law. Nevertheless, the majority of Falun Gong practitioners who have been held in detention, have been imprisoned or sent to forced labour camps were sentenced because they have made or handed out leaflets and CDs as materials to let people know the truth about Falun Gong.
Criminal punishment of Falun Gong practitioners is therefore a severe violation of Chinese Criminal Law and the Chinese Constitution. Moreover, public security organs and state security organs eavesdrop on practitioners' phone calls and search practitioners' houses without using legal procedures. This is a violation of Criminal Litigation Law of the People's Republic of China. Needless to say, it is a violation of law to extort confessions by means of torture methods, beating practitioners, crippling practitioners, beating practitioners to death, raping, or gang raping practitioners. The persons responsible for these acts are criminals. These are the facts that the Jiang faction covers up most and fears most being exposed.
It is obvious that Jiang Zemin's suppression and persecution of Falun Gong is a violation of Chinese Rules of Law. I hope that government organs at all levels, the National People's Congress, and all leaders, experts, and scholars who are upholding justice in the legal community, along with the democratic activists, will stand up and resist this rampant trampling of human rights.
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