No Way Out page – 6

China Labour Bulletin and Rights & Democracy

Criminalizing Collective Protests by Workers

The actual number of worker activists currently imprisoned in China remains unknown, since only a minority of such cases is publicized in the official news media. In general, however, whereas up until the late 1990s the authorities were highly diligent in arresting and prosecuting workers who staged strikes or public protests, in recent years there has been a gradually increasing level of official tolerance (albeit grudging and uncertain) for such activities. The simple fact is that, in an era of market reform marked by widespread violations of basic labour rights, worker protests have become so frequent and numerous across the country that local governments nowadays are under increasing pressure to concede that the protesting workers have a well-founded point. They are therefore generally more willing than before to adopt conciliatory tactics in such situations, as a means of defusing local labour unrest and other such factors of “political instability” in society. However, misuse of the law to scapegoat and punish labour activists remains a serious problem in China, and one that may be considerably more widespread than presently known.

The right to freedom of the person is enshrined in the PRC Constitution. According to Article 37:

The personal liberty of citizens of the PRC is inviolable. No citizen may be arrested except with the approval or by decision of a people’s procuratorate or by decision of a people’s court, and arrests must be carried out by the public security organs. Unlawful deprivation or restriction of citizens’ personal liberty by detention or other means is prohibited; as is the unlawful search of the citizen’s person.

In other words, the right to personal liberty can be thought. But the further things went, the messier the restricted or deprived only in cases where citizens are suspected of involvement in a criminal case and where due legal process has been followed. Personal liberty is the foundation of all freedoms, and in a society ruled by law it should be accorded the highest priority. As the following accounts show, however, the workers involved in the cases discussed above benefited from no such constitutional protections.

Trumped-up Criminal Charges

In the case of the Liaoyang protest movement, the workers’ leaders Yao Fuxin and Xiao Yunliang were found by the court to have committed the crime of “subversion of state power” – an essentially political offence and one of the gravest in the PRC Criminal Law. The Liaoyang Intermediate People’s Court deemed that both defendants “were aware that their actions would necessarily result in a threat to society, and moreover they desired this outcome.” On that basis, the court pronounced that they had “organized, planned and carried out actions aimed at subverting state power and overthrowing the socialist system.” During the trial, however, Yao explained as follows his real motivation in organizing the worker demonstrations:

For more than 20 months, the Ferro-Alloy Factory workers had not received their wages, the older ones were unable to pay their medical bills, and some couldn’t even afford to eat. I couldn’t bear seeing the workers suffer like that, so I stood up to help them put food on the table.

According to Yao’s wife, Guo Xiujing, the two main goals of the workers’ protests were to bring factory managers to account and to secure payment of outstanding wage arrears. She continued:

It’s not that we don’t consider the position of the local government or the state in all this; we know that sorting out the problems at our factory is far from an easy or straightforward matter. At the time, though, the dispute could have been settled if those “worms” had been smoked out during the anti-corruption drive and the loot and back pay returned to their rightful ownersThat’s what we situation became.36

Noting that the other defendant, Xiao Yunliang, was owed 23 months in back pay, Xiao’s lawyer argued that his client’s involvement in the demonstrations was aimed purely at defending his personal economic interests. There had been no intent on his part either to “subvert state power.”

Similarly, in more recent cases, Zhu Guo, one of the leaders of the Tieshu Textile Factory protests, and also Luo Mingzhong, Zhan Xianfu, Luo Huiquan and Zhou Shaofen, four workers involved in the Tianyuan Chemicals Factory dispute, were all detained by police and charged with the offence of “assembling a crowd to disturb social order.” At their respective trials, the defendants were deemed by the courts to have gathered a mob with “disruptive intent” and (in the Tianyuan case) to have “inflicted grave impact on work, production, management, and training and research activities, leading to significant [economic] losses.” The defence lawyers argued in court that the evidence presented by prosecutors was grossly insufficient, and moreover that there had been no intent at all on the part of the accused to “assemble a crowd to disturb social order.” Nonetheless, court convictions predictably followed in both sets of trials.

The workers in these cases had certainly been involved in public protests, in some cases as organizers, but the police and prosecutors failed to provide evidence to prove that their actions had indeed either posed a threat to social order or been aimed at subverting the government. But the core defect of the judicial proceedings lay not so much in the prosecution’s failure to provide evidence of guilt, but rather in the nature of the charges themselves, which sought – in contravention of international legal standards – to penalize the workers for exercising their basic rights to freedom of association and demonstration.

Manipulating the Criminal Justice Process

In Article 126 of the PRC Constitution, “independent exercise of judicial power” is defined as “the right of courts to exercise independent judicial powers in conformity with laws and regulations, without interference from administrative organs, social groups, or individuals.” As numerous mainland legal scholars have pointed out, however, the reality is quite different. The main problem at issue arises from the longstanding PRC doctrine that the Communist Party must exercise “unified leadership” over all important matters, including the operation of the legal system. According to two legal commentators,

In China, the principal of independent judicial process means, firstly, the People’s Courts must knowingly subordinate all their activities to leadership by the Chinese Communist Party. In political, ideological and organizational terms, they shall accept the leadership of the Party in legal proceedings at court.37

In the official view, therefore, sweeping control by the Party is viewed as being a “guarantee” of judicial independence. In practice, courts accept the “unified leadership of the Party” through the latter’s powerful system of “politics and law committees” (zheng-fa weiyuanhui) – political bodies whose function is to supervise and direct the work of the police, procuracy and courts at all levels. Moreover, the politics and law committees are usually chaired by the local police chief, thus vividly illustrating the subservient position of the prosecution and judicial authorities within the legal system as a whole. These committees can interfere at will in the areas of law enforcement, court procedure and individual case adjudication, including (especially during the periodic “crackdown on crime” campaigns) by ordering the courts to deal with cases more harshly and rapidly than usual. According to Wang Yi, another mainland scholar, since the Constitution does not empower any outside organization to intervene in the workings of the justice system, the authority wielded by the politics and law committees is both excessive and unlawful.38 Such external interference in judicial independence in China, although resorted to less frequently nowadays than in the past, is still routine in cases of political or religious dissent and also in most criminal cases involving collective protests by workers.

Within the courtroom, judges are further hampered in hearings and rulings by another authority – the “adjudication committee” (shenpan weiyuanhui).39 The ultimate decision-making body within the court system, these committees have the final say in all judgments concerning “difficult or thorny cases” (yi-nan anjian.) Whenever a case is so categorized, the adjudication committee meets in advance of the trial to decide on the verdict, and the hearing then becomes a formality. The presiding judge can then only go through the motions of conducting a trial. (This longstanding practice is quaintly referred to by Chinese legal scholars as “verdict first, trial second” [xian pan, hou shen].) And the adjudication committees, in turn, take their cue from the local politics and law committee. In short, as other scholars have noted,

China…lacks safeguards ensuring the independent exercise of judicial power. The functions of Party and government are confused with those of the judiciary, and judges’ positions, duties and remuneration all lack legal safeguards. The courts are beholden to the administrative apparatus.40

For the above reasons, when SOE-related privatization disputes spill over into the public domain, with workers staging demonstrations, sit-ins and blockades aimed at exposing corruption or malfeasance by local officials, the same officials and their allies find it easy to use the judicial system to take coercive or repressive measures against the protesters. The police can readily be mobilized to break up demonstrations and detain workers’ representatives, and the judicial process can arbitrarily be used to charge protesting workers with major criminal offences such as “disturbing public order” or “subversion of state power.” And since cases of this type relate directly to the all-important issue of social and political stability, they are accorded high priority by the authorities and salutary sentences are likely to follow.

In certain prominent cases, officials have used the politics and law committee and adjudication committee system in order to frame protestors and send them to jail for many years. In the Liaoyang workers’ case, for example, the prosecution indictment against Yao Fuxin and Xiao Yunliang claimed that since 1998 the two had been involved in:

…the establishment of the ‘China Democracy Party, Liaoning Province branch’ and carried out illegal activities in its name… Between mid-February and 20 March 2002, the pair created disturbances, spread rumours, and repeatedly provoked mob attacks on the municipal government and people’s congress as well as security, procuratorial and judicial organs of Liaoyang, severely disrupting the functioning of state organs and transportation networks.41

The charge that Yao and Xiao were involved with “an illegal political party” was a complete fabrication – as was a later claim, made at the ILO in Geneva by a leading Liaoning official, that the two had engaged in acts of “terrorism and sabotage.”42 Once made, however, such allegations sufficed to redefine the act of leading the Liaoyang worker demonstrations into the serious criminal and political offence of subversion of state power. All this occurred under the auspices of the Liaoyang Municipal Politics and Law Committee. As a court official confirmed after the sentences were handed down, “The Liaoyang Politics and Law Committee and the Municipal Party Standing Committee met on numerous occasions to study this case.” 43

The case of the Tieshu Textile Factory protests offered another example of this general type. At the trial of Zhu Guo, the presiding judge based his guilty verdict on two sentences allegedly spoken by the defendant. First, during a mass protest at the factory’s main entrance on 8 February 2004, Zhu allegedly had called out from the crowd: “Push open the door and get in there! We must get our money back.” And second, later that morning during a blockade of the Han-Dan Railway Line by the Tieshu workers, he had pointed to the Mayor of Suizhou, who was directing police operations at the scene, and shouted, “Look, it’s the old [term of abuse deleted by court authorities], we’ve got things to discuss with him!” 44 While the former comment might conceivably constitute unlawful incitement, the latter was at worst an overheated instance of freedom of expression. During Zhu’s trial, however, his defence lawyer pointed out that the evidence provided by the prosecutor on both these allegations had come from three police officers whose testimonies, in terms of time, place and detail, all failed to tally. In the view of his wife, Zhu’s real offence was simply that he had “tarnished the image of local government leaders.” According to the account of an eyewitness who was at the court that day, a visibly shaken and distraught Zhu Guo cried out to his family in court that he had been “beaten black and blue” while in detention. Ignoring the obvious evidence of police abuse, the judge sentenced Zhu to one year’s imprisonment.

Detention without Trial

When security officials are unable to concoct a criminal case against worker activists, they nonetheless have at their disposal an extensive system of “administrative punishment” under which those seen as troublemakers can be detained and “re-educated,” solely on police authority, for up to three years without trial. The RTL system as a whole violates U.N. standards that prohibit detention without trial, including the International Covenant on Civil and Political Rights (ICCPR.)45 The Re-education through Labour (RTL) system was first developed by the Communist Party in the 1950s to deal with “counter-revolutionary and other undesirable elements” and was formally implemented in January 1956. According to the government, RTL is an extra-judicial measure aimed at punishing citizens deemed to have committed “minor offences not meriting criminal sanction.” In any given year nowadays, upwards of 250,000 Chinese citizens are subjected to this arbitrary form of punishment.46 An unknown number of them are labour rights activists. Indeed, two of the workers from the few cases discussed here were arbitrarily sentenced to RTL as a punishment for trying to secure economic justice for themselves and their families.

Wang Hanwu, a leader of the Tieshu Textile Factory protests, was taken into custody by the Zengdu sub-bureau of Suizhou Public Security Bureau on 14 February 2004 and charged with “assembling a crowd to disturb social order.” While his was a typically unjust case (there had been no such criminal intent on his part), the subsequent course of events nonetheless showed that outside legal intervention on behalf of detained labour activists can, in certain cases, be surprisingly effective. Wang was formally arrested on 25 February, but his lawyer pressed for the case to be sent back to Zengdu Public Security Bureau for further investigation on grounds of lack of evidence. The authorities ignored this request, and at that point two defence lawyers from a high-profile Beijing law firm were independently hired to represent Wang. When they arrived at the detention centre a few days later and demanded to meet with their client, the effect was salutary: they were granted an immediate, two-hour meeting with Wang – much longer than is usually allowed in such cases. Moreover, two prosecutors involved in the case then sought a meeting with the defence lawyers, and by the end of it one of the prosecutors basically admitted that they had no case against Wang, while the other agreed that the lawyers had given him “serious pause for thought.”

The following week, the Suizhou police – clearly with much-reduced confidence in its ability to nail Wang in court – dropped the criminal charge and instead sentenced him without trial to two years and three months of RTL.47 Subsequently, however, after intercepting a letter mailed by the Beijing lawyers to Wang Hanwu’s wife that contained the draft of an administrative lawsuit which the lawyers planned to wage on Wang’s behalf, accusing the police of wrongful detention, the police summoned his wife and informed her that they would release Wang on condition that she agreed to drop the planned lawsuit. She declined to comply, on the grounds that only her husband could make such a pledge. But despite her “lack of cooperation” the police went ahead and freed Wang anyway.48 Showing considerable audacity, Wang then proceeded to sue the police for wrongful detention. He lost the case at both the initial hearing and the appeal stage, but later petitioned the court for a retrial. In another substantial departure from normal judicial practice in such cases, in December 2005 the Suizhou Municipal Intermediate Court gave its consent for a retrial to be held; but again, the court’s final verdict was in favour of the police. Since then, Wang has continued his fight for justice by submitting repeated petitions to the higher authorities, most recently to the National People’s Congress. His case vividly shows that Chinese workers, in a growing number of cases, are no longer content to be passive victims of employer or police abuse: instead, they are actively using the legal system to defend and promote their fundamental rights as citizens.

Much less encouraging was the case of Wang Guilan. In July 2005, the newly politicized Wang tried to meet in Beijing with Louise Arbour, the U.N. High Commissioner for Human Rights, and briefly staged a demonstration in front of the American embassy, in an attempt to attract international attention and pressure the Chinese government to intervene on her behalf. She was immediately detained by the Beijing police and escorted back to her hometown by six officers of the Enshi Public Security Bureau. On 2 August, she was taken to a police station near her home and ordered to name the instigator of her “attack on the embassy” and to confess to her “crime.” When she refused to do so, she was sentenced without trial to seven days’ administrative detention.

During this period, local officials informed Wang’s family that the agreement she had reached with the Enshi government on payment of her medical treatment costs now constituted a “problem.” Should they agree to hand over the original copy of the compensation and redress agreement, however, “Everything would be negotiable.” The family refused, and the police then spitefully increased Wang’s sentence. On 1 September, midway through a major series of cosmetic surgery operations to reconstruct her face, the Enshi RTL committee sentenced her to one year and three months in an RTL camp.49 After completing her sentence, however, Wang went on to become a prominent civil rights activist. In spring 2008, for example, she was one of the chief organizers of an internet petition drive calling on the Chinese government to pay greater attention to human rights concerns in the run-up to the Beijing Olympics.

As noted, RTL is officially presented as being a method for dealing with minor criminal offences and violations of administrative law not deemed worthy of criminal sanction. However, the maximum RTL penalty of three years (extendable to four if the sentenced person subsequently resists or displays a lack of contrition) is much harsher than several minor sanctions available to judges under the Criminal Law: for example, “control” (guanzhi), a non-custodial sentence of between three months and two years’ duration; or “detention” (juyi), involving short-term custody for periods of up to six months. Those sentenced to RTL are held in conditions of detention no less arduous than a prison, and often in remote and inhospitable locations.50 In practice, RTL is frequently used in cases — such as those of Wang Hanwu and Wang Guilan — where the police have insufficient evidence to justify arrest, or where arrests are not subsequently authorized by the procuracy and so criminal prosecutions cannot be brought.51

In short, the system has become a convenient, onesize-fits-all punishment for those viewed as “criminals” by the public security authorities but for whom no clear evidence of guilt exists.52 The police authorities’ control over all matters relating to RTL affords them enormous legal and institutional power to restrict the personal liberty of Chinese citizens, and this is one of the main reasons they are so widely feared by the general public.53

 

<<< NOTES

36- “Kengqian meigui?ji tiehejinchang bei dei gongren daibiao jiashu” (Dangerous Roses: Recollections of the wives of worker representatives arrested at the Ferro-Alloy Plant,” 2 June 2003; CLB website, http://www.clb.org.hk/schi/node/5805.

37- Wei Dingren and Gan Chaoying, “21 shiji faxue congshu?xuanfaxue” (21st Century Series of Legal Studies), Beijing University Press, p.157, January 2001, 1st edition, p.537.

38- Wang Yi, “Zhengfawei qianghuale sifa jiguande bianyuanhua” (The Political and Judicial Committees have deepened the marginalisation of judicial organs), Independent Chinese Pen Centre, Aug. 2003, http://www.boxun.com/hero/wangyi/41_2.shtml.

39- According to Article 11 of the Organic Law of the Courts of the People’s Republic of China, (approved on 1 July 1979 by the second session of the 5th National People’s Congress), “People’s Courts at all levels must establish adjudication committees and implement democratic centralism.” The adjudication committees are responsible for summarizing court proceedings, deliberating upon “thorny” or “difficult” cases and dealing with other key issues arising in judicial work.

40- Shen Deyong, et al. “Ying jianli yu shichang jingji xiangshiyingde fayuan tizhi” (We need to build a justice system suited to the market system) Renmin Fayuan Bao (People’s Court Daily), 6 June 1994.

41- Judgment No. 1 (2003), issued by Liaoyang Intermediate People’s Court, Liaoning Province.

42- The Liaoyang Workers’ Struggle: Portrait of a Movement. CLB research report, July 2003, p.26.

43- “Liaoyang tiehejinchang 4 ming gongren daibiao beidei jin liuge yue, tiehejinchang gongren jixu hefa kangyi” (Nearly six months after the arrest of four of their leaders, Liaoyang Ferro-Alloy Factory workers continue their legal struggle), CLB interview, 31 August 2002, <http://www.clb.org.hk/schi/node/4009>.

44- Judgment No. 133 (2004) of Zengdu District People’s Court, Suizhou City.

45- According to Article 9 of the ICCPR, “Everyone has the right to freedom and security of the person. No-one shall be subjected to arbitrary arrest or detention. No-one shall be deprived of their liberty except on such grounds and in accordance with such procedure as are established by law.” The Chinese government signed the ICCPR in October 1998, and although it has not yet ratified it, in so doing it committed itself to the observance of the fundamental human rights principle that citizens’ personal freedom can be restricted or deprived only in accordance with due legal process. The right to a fair and open trial is fundamental to the latter.

46- The only recourse available to citizens seeking to challenge sentences of RTL is to bring an administrative lawsuit against their local police chief. Moreover, this risky step has to be taken from the invidious position of a police detention centre or labour re-education camp – and (unlike in the case of persons held under the Criminal Procedure Law) the detainee has no legally stipulated right to meet with legal counsel. In response to mounting domestic and international pressure over its practices in this area, the Chinese government has announced plans to reform the RTL system, in the form of a forthcoming “Law on the Punishment of Minor Offenders.” However, the law as thus far presented contains no provisions for making all such sentences subject to a fair and open hearing in a court of law, with the accused having the right to be represented by legal counsel. As such, the core detention-without-trial feature of RTL looks set to remain unaltered.

47- According to the Suizhou RTL Management Committee’s sentencing document, issued on 25 March 2004, Wang Hanwu had “stirred up a mass disturbance, blocked railway lines, and hindered Public Security officers in the performance of their legal duties.” The Suizhou police’s decision to drop the criminal charge against Wang and sentence him to RTL even upset the local procuracy, whom the police had failed to notify of this abrupt change of plan. As a result, the procuracy continued for at least a fortnight afterwards to prepare the criminal indictment against Wang.

48- On 12 April 2004, Suizhou RTL Management Committee formally agreed to let Wang undergo RTL “outside the usual facilities.”

49- Decision No.47 of the Enshi Municipal RTL committee (2005).

50- Huang Zhiyong, “Dui woguo laodong jiaoyang zhidude fansi” (Reflections on China’s re-education-through-labour system), Jinan Xuebao (Renwen Kexue yu Shehui Kexue Ban), Journal of Jinan University (Humanities & Social Science Edition), 2005, Vol. 1, pp.17-23.

51- Qiao Jinru, “Wo guo xianxing laodong jiaoyang zhidu cunfei wenti zhi sikao” (Thoughts on retention or abolition of China’s current RTL system), Falü Shiyong (Journal of Law Application), Volume 6, 2003, pp. 64-66.

52- Ibid.

53- The process for examination and approval of RTL cases is as follows: 1) The Public Security Bureau’s (PSB’s) case-handling office sends files on a person earmarked for RTL to the legal affairs office of the local PSB sub-bureau. 2) After the legal affairs office arranges expert examination, and consent is obtained, the file is sent to a local RTL facility for approval by its director, and, if so approved, the paperwork is then sent to legal assessors at a higher level of the Public Security apparatus. 3) Once the higher-level review is concluded, a decision on whether or not to approve the RTL sentence, and for what term, is reported back to the local RTL facility. And 4), the decision is then formalized in the name of the RTL Management Committee, a body ostensibly composed of officials from the local PSB, civil affairs bureau and labour bureau.