Bryan Edelman & James T Richardson. Nova Religio. Volume 6, Issue 2. 2003.
On 25 April 1999, over ten thousand Falun Gong adherents gathered in a peaceful “appeal” around Zhong-nanhai, home to the majority of the central governmental leadership in the People’s Republic of China (PRC). The protestors wanted the PRC government to recognize the movement as a legitimate form of spirituality. This action by Falun Gong was “the shot heard round the world” in terms of its significance for Chinese society. A few months later, on 22 July 1999, the State Council, the executive branch of the central government, officially banned Falun Gong, labeling it an “evil cult.” The Standing Committee of the National People’s Congress then passed ex post facto legisation banning “evil cults” on 30 October 1999. In the months that followed, the government took several other actions in an effort to exert social control over the Falun Gong movement and to garner support in the international arena. It was estimated in February 2000 that 35,000 practitioners had been detained, 300 jailed, 5,000 sent to labor camps, and 50 committed to mental hospitals. Estimates also place the number of dead at over 200, and there have been 11 confirmed deaths. Current reported numbers of those detained, jailed, and committed are even higher.
This paper has two foci. First, in an effort to help readers better understand the People’s Republic of China, we will briefly discuss the philosophy of socialist legality, which is the driving force behind the legal system in the PRC. We will also discuss the development of the rule of law in the PRC; the provisions of the 1982 Constitution relating to state power and religious freedom; democratic centralism and the government structure in the PRC; the government/Party relationship; and the process of creating laws.
The second focus is to use treatment of Falun Gong practitioners as a means to determine if the PRC is progressing toward a system of rule of law, as its official documents (and international treaties to which the PRC is committed) would suggest. Criticisms of Chinese Communist Party (CCP) actions and the crackdown will not be based on Western standards of democracy and law, but on concepts of government and justice formulated by the CCP and put forth in Party documents, the CCP constitution, and the PRC Constitution. These documents and one well-publicized case (that of Chen Zixiu, a woman who died while in custody) will be used to ascertain if the crackdown on Falun Gong followed legitimate channels in relation to the legislative process, maintained the Party/state separation, respected the religious freedom and citizen rights enshrined in the PRC Constitution, and complied with the international covenants signed and ratified by the PRC.
It is our contention that the People’s Republic of China is not adhering to the principles laid down in its own official documents that would seem to allow its citizens freedom of association, speech and religion, as laid down in its official documents, and that the way those principles are implemented works against the free exercise of apparent constitutional rights of the PRC’s citizens.
Major Developments and Core Concepts behind Politics, Government, and Law in the People’s Republic of China
In the decade between 1966 and 1976, the populace in the PRC experienced the Cultural Revolution, a devastating crackdown on all forms of political, intellectual, and religious expression considered to be anti-Maoist. When Chairman Mao died on 9 September 1976, the Cultural Revolution died along with him. Deng Xiaoping, who emerged as the dominant force in PRG politics, launched major economic and political reforms in 1978. Starting with the modest goal of revitalizing the economy, these reforms eventually took on a life of their own.
There was no separation between Party and state during Chairman Mao’s rule. Party cadres garnered political and economic power from their Party position and managerial status in state-run industries. However, Deng established a new institutional arrangement at the local level that redistributed power between Party cadres and local political structures. In the struggles for power that followed Deng’s reforms, those who appeared to be faithful to Dengism gained the upper hand. This tactical maneuvering on the part of Deng and his followers is the basis for the current PRC political and governmental structure.
The philosophical basis underlying the conception of legality in the contemporary PRC is known as socialist legality. A conservative conception of this philosophy is that law is the reification of class willpower, and that law reflects the dominance of the ruling class over the ruled. The proletarian dictatorship is the ruling class and driving purpose of the socialist system. It is not restrained by the notion of law, but uses law as a tool to strengthen its dictatorship.
In accordance with this conservative conception, Lenin postulated that the legal establishment serves two purposes in the socialist state. First, courts play a role of coercive deterrence by suppressing potential threats to the new government. Second, the suppression of the enemy educates the proletarian masses. Both political and legal establishments of coercion, suppression, and dictatorship can develop only if the dictatorship is successful at eliminating the bourgeois enemy.
Unlike the West, where law is usually seen as a constraint on the power of the state, the PRC views law as a means to maintain stability, regulate society, protect the interests of the Communist ruling class, and strengthen and enforce the government’s authority. The legal system is in place as a weapon against “spiritual pollution” and “bourgeois liberalization.” The content of law focuses on preserving the social order through the imposition of duties upon citizens. Law is not a method to constrain the state’s actions, but a means to guarantee that the people will perform their duties.
The ruling Communist elite may use law to enforce its policies, but the elite class itself is not easily constrained by law. This reflects a system known as the rule by law where “officials handle public affairs according to relevant laws without questioning the nature of these laws.” The rule by law enables the power holders to use law enforcement to exert social control over the populace.
In sharp contrast, the rule of law refers to both the content and underlying principles of law. Democratic societies create procedures for making and implementing the law of the land, which all persons, regardless of class position, must follow. These laws and procedures restrict lawmakers and law enforcement as well as ordinary citizens. Everyone is required to respect both the law and the rule of law.
The strength of the people’s dictatorship is manifested throughout the People’s Congress in the form of democratic centralism, a key concept underlying socialist rule of law. Because the Communist Party represents the laboring people of the country, it is assumed that there is no need for sharing power with other political parties. Democratic centralism supposedly guarantees stability ensuring that the minority obeys the majority, subordinates obey superiors, and local governments obey the central government.
At the same time, democratic centralism requires officials at the central level of political power to consult widely before important decisions are made, a process referred to as democratic consultation. This requirement is to prevent the National People’s Congress (NPC) and its major governing body, the Standing Committee, from divorcing themselves from social reality when making decisions. This approach to governance is supposed to prevent the disruption of harmony, legitimize eventual decisions, keep the Party in touch with the people, and create societal unity.
The Chinese Communist Party’s Thirteenth Central Committee created six criteria for the implementation of democratic consultation. These criteria include maintaining close ties with non-party representatives and the masses and trying to ascertain their views. They also include listening extensively to the views of the people, not allowing the suppression of criticism and having party cadres make friends with those who dare to reflect reality in order to discover problems early.
If the Party followed its own principles, the official decision to ban Falun Gong would be a product of democratic consultation. Instead, as will be shown herein, the decisions concerning Falun Gong seem to have been made hastily and without acting within official guidelines.
The Governmental Structure behind Democratic Centralism
Political reform in the PRC has involved an effort to create a legal and political system that will not change with every shift in leadership. The national Constitution, approved in 1982, supposedly restrains the power of the state so that political activities will be conducted within the limits defined by the law, with the law defined as independent, and with the courts free of influence from any administrative organ, organization, or person.
The preamble of the PRC Constitution has been interpreted to mean that the Party’s role is to provide political and ideological leadership. The Party’s constitution also defines its role in terms of political leadership. Only through the official channels of the legislative organs of the state can Party policies be transformed into law, according to the structure and processes laid out in the PRC Constitution and the Party constitution. The separation of Party and state laid down by the PRC Constitution is a move toward the concept of rule of law. If this separation is honored, the will of the Party will not automatically become the law of the land. If a Party policy violates the rights guaranteed under the Constitution, the NPC and its Standing Committee have the constitutional obligation to negate the passage of legislation in favor of policies in compliance with it. Although the Party might have perceived Falun Gong as a threat, the NPC had a legal responsibility to protect Falun Gong adherents’ constitutional rights.
The underlying basis of the United States Constitution is the division of powers. The writers of the PRC Constitution were guided by the contrasting philosophy of democratic centralism. Under democratic centralism, there is little distribution of powers. The PRC Constitution gives the legislative branch the authority to promulgate legislation, oversee the executive branch, and interpret the law and Constitution (Article 67).
Just as the executive organs of the state must yield to the NPC as the ultimate authority, so too must the courts. Although the Constitution identifies the Supreme Court as the highest judicial organ, responsible for supervising the administration of justice by the people’s courts at various local levels, it also provides that the Supreme People’s Court is responsible to the NPC and its Standing Committee, and the local People’s Courts at various levels are responsible to the organs of state power that created them (Article 128). These provisions present a threat to the judiciary’s autonomy.
Moreover, the power to interpret the law and the Constitution is not granted to judges trained in the legal profession, but to legislators who may have no expertise in doing so, a process fraught with potential problems. If the judiciary finds a defendant not guilty, the legislature can override the verdict. Thus, if the Party has control over the state legislative apparatus, then the judiciary can be used as a tool of suppression by Party leadership, a situation far from one that could be described as functioning under the rule of law. Over sixty percent of the NPC’s body and the majority of the key government positions are held by Party members, making such control a real possibility.
The top down structure created by democratic centralism, the large number of Party members holding key government positions, coupled with the doctrine of these members adhering to Party policy, gives the central CCP leadership the ability to control most decisions of the state, and brings into serious question the idea of separation of Party and state. The GGP leadership can easily turn Party policy into state policy, as it has demonstrated with Falun Gong, regardless of what is stated in the PRC Constitution and the CCP constitution.
Timeline of Legislation Passed and Other Reactions
On 22 July 1999, the Ministry of Civil Affairs under the State Council issued a decision banning “the Research Society of Falun Dafa and the Falun Gong organization under its control.” The Ministry of Security issued a notice which prohibited the displaying of “public marks”—signs or advertisements—promoting Falun Dafa, distributing of promotional materials, gathering to perform exercises or promotional activities, and participating in sit-ins, petitions, demonstrations and other activities which oppose the decision to ban the group’s activities.
On 29 August 1999, the General Office of the State Council issued notice no. 77/1999 expanding the ban to other similar qigong groups and activities. It designated such activities as “illegal gatherings” which “endangered public security, disrupted social order and harmed social stability.”
In October 1999, thousands of Falun Gong practitioners went to Beijing after hearing that the PRC parliament would debate a bill to criminalize Falun Gong and other religious groups labeled as “evil cults” by the government.
On 30 October 1999, the Standing Committee of the NPC passed a “Decision on Banning Heretical Organizations and Preventing and Punishing Heretical Activities.” This called for a major crackdown on “heretical organizations such as Qigong and other forms.” It has since been applied retroactively to practitioners who engaged in banned activities prior to that date.
On the same day, the Supreme People’s Court and the Supreme People’s Procuratorate issued a joint judicial interpretation entitled, “Explanation on Questions Concerning the Concrete Application of Laws Handling Criminal Gases of Organizing and Making Use of Heretical Organizations.” The interpretation applies Article 300 of the Criminal Code to those illegal groups that have been found using religion, qigong or other things as a camouflage, deifying their leaders, recruiting and controlling their members and deceiving people by molding and spreading superstitious ideas, and endangering society. The interpretation goes on to detail the punishment for those found guilty of violating the law. Some of the violations include besieging government organizations, enterprises, or institutions, holding demonstrations to disrupt public places for religious activities, resisting die ban, or publishing or distributing illegal material. The interpretation goes on to read:
The offences of establishing or using sects to organize, scheme, carry out and instigate activities of splitting China, endangering the reunification of China or subverting the country’s socialist system should be handled according to relevant laws on endangering State security offences, as stipulated in the Criminal Law.
The legislation passed by the NPG Standing Committee and the interpretation issued by the Supreme Court on the same day raises doubts as to whether the legislative process was followed and questions the freedom of the judiciary advocated by the leadership in the PRC. According to the principle of consultation endorsed by the Party, leaders should first contact organizations and listen to dissenting voices on an issue to gain an understanding of the will of the people. The legislative process then calls for the Legislative Bureau under the State Council to draft a bill. This draft is distributed to various relevant ministries for review and is then submitted to Party leaders. The Party must review the general principles of all legislation in accordance with the requirements of Central Committee tenets as outlined in Central Committee Document 8, which was issued in 1991. This document limits Party review to die political ideology, direction, and policies of any bill under consideration. If a bill is approved on principle, it then moves to the NPC for debate. If the legislation is passed, it must then go back to the State Council or Supreme Court to be translated into regulations. This is obviously a time-consuming process.
The Supreme Court issued its interpretation of the October legislation the same day that the NPC Standing Committee voted on it, even dough die process for promulgating law in die PRC suggests that die judiciary should not offer a judicial interpretation until after a bill is passed. It is highly unlikely that an official interpretation under such a process could be issued on die same day that the legislature enacted it. This calls into question die independence of die judiciary and die steps taken with die promulgation of this legislation. It would be informative to examine when tins legislation was drafted and in which government/Party institution. Such information is not easy to obtain, however.
On 5 November 1999, die Supreme People’s Court issued Notice 29,1999 instructing local and military courts on how to handle cases of people involved with crimes for “organizing or using heretical organizations, particularly Falun Gong.” It also called on die courts to “unify their thinking,” and “grasp the heretical character of Falun Gong” and die “threat” it posed, and to “fully understand” the spirit of important directives given to central authorities about “how to deal with and resolve die Falun Gong question.” The Notice states:
Courts at all levels must be ‘fully aware’ of the ‘important, complex, and long-term’ nature of this ‘struggle’ and they must make it their ‘serious political duty’ to punish ‘every kind of heretical organization crime.’ Courts at all levels must handle these cases under the leadership of the Party committees. Higher courts are to supervise lower courts and use the media to publicize significant cases in order to increase the social impact of the trials. Other means should also be found to publicize the trials so as ‘to educate the large masses of people’ and to make them aware of the ‘heretical organizations’ that were ‘opposing science, humanity, society and the government.’
This decree seems to fit into the Marxist conception of socialist legality and the use of the court system as an instrument to suppress dissent and “educate” the masses. The tone of the notice seems to convey the message, “vigorously convict.” It also makes reference to the court’s political duty, even though the state and Party are separate entities, according to the PRG Constitution. Finally, the notice makes reference to the importance of educating the masses about the heretical nature of Falun Gong and its posited opposition to science, society, and government. This edict does not comport well with a defendant’s constitutional right to a defense, and it appears to assume guilt before a trial has taken place.
On 24 November 1999, the Ministry of Public Security issued “Regulations on Managing Mass Cultural and Sports Activities.” This was intended to ban large public gatherings, especially those involving qigong groups that “threaten national security and public order.” Nine specific types of gatherings are forbidden under the regulations, including those that:
…violate principles of the constitution, or endanger national security and public order, infringe upon customs of ethnic minorities, violate ethnic unity and instigate national separatism, propagate superstition and heresy, pornography and violence that are detrimental to the health of the people.
Virtually any group’s activities could be suppressed under these provisions. The regulations also state, “Mass congregations shall not be held near places of governmental agencies above the local level, at radio or television stations, foreign embassies and consulates, military establishments and other vital institutions.” The regulations empower police to detain and fine people found in violation of them.
In December 2001, Beijing imposed a ban on using the Internet to organize or coordinate the activities of “evil cults.” Coupled with the State Council’s ban on the Falun Dafa organization in July, the regulations and Internet ban seem to contradict several rights guaranteed in the PRC Constitution, including citizens’ rights to enjoy freedom of speech, press, assembly, association, procession and demonstration protected under Article 35. Unlike other articles, Article 35 does mention or exclude activities that “disrupt public order.” Although Article 33 states that citizens must perform the duties prescribed by the Constitution—one of which is to observe public order—it also states that every citizen is entitled to the rights defined within the Constitution. Thus, the policy of banning activities protected by the Constitution, as opposed to dealing with threats to “public order” on a case-by-case basis, does appear to conflict with the Constitution. If these regulations infringe upon constitutional guarantees, then the regulations violate Article 5, which stipulates that no law or administrative or local rules and regulations may contravene the Constitution. It is the responsibility of the NPC Standing Committee to negate any legislation that is not in accordance with the constitution. However, due to Party/state overlap, coupled with the apparent adherence to Party policy doctrine described herein, the negation of such legislation on constitutional grounds is quite unlikely.
Disregarding Democratic Consultation
In February 2001, less than two years after the massive demonstration at Zhongnanhai that provoked the campaign against Falun Gong, President Jiang Zemin summoned more than 2,000 top Party officials to Beijing for a rare closed-door meeting. All senior central officials, top Party leaders from each province, and leaders of the military, the judiciary and government ministries attended. The reason for the meeting was to ensure that the “Party remained united against the campaign to crush the Falun Gong, as well as supportive of the decision in 1989 to use 4roops against the democratic protesters in Tiananmen Square.”
All seven members of the Standing Committee of the Party’s Politburo stood up at this unusual meeting to endorse the anti-Falun Gong campaign as an “urgent necessity.” President Jiang and other top leaders made it clear that they plan to crush the Falun Gong movement before the end of their terms at the 2002 Party Congress. Jiang went on to accuse local officials of not enthusiastically stamping out the movement, and of allowing practitioners to go unhindered to Beijing to protest. After the meeting, government officials briefed Party organizations and government agencies throughout the PRC about the official anti-Falun Gong policy.
This meeting serves as an indication of how important these two issues—suppression of Falun Gong and maintaining support for the use of force against the 1989 democracy proponents gathered in Tiananmen Square—are to the PRC political leadership. According to Erik Eckholm and Elisabeth Rosenthal, whose article draws heavily on interviews with two officials who disagree with the Party’s approach, Party leaders asserted that Falun Gong has become a tool of the West and the CIA, which they believed were directly nurturing and protecting the Falun Gong organization. This was apparently the major justification given for the entire ad hoc extralegal process that had been implemented to exert control over Falun Gong.
Instead of unified support for the crackdown, however, there is some evidence of concern about it. One group of police officers from the city of Shenyang wrote to the People’s Daily to complain that the effort was networking, and that “demonstrations by angry workers and farmers over unpaid pensions, taxes and corruption have become common occurrences.” The Party center’s concern over the lack of support for the crackdown expressed in this meeting, coupled with dissent from Party members, state officials, and the populace as a whole as relayed in the report by Eckholm and Rosenthal, also raise questions as to whether any consultation outside a limited circle of Party officials took place before the decision was made to ban Falun Gong.
Religion in China
Although the PRG Constitution protects religious freedom in principle, the reality is quite different. Only five religions have been sanctioned by the state—Catholicism, Protestantism, Islam, Buddhism, and Taoism—and those only through state-approved organizations. Such state-controlled religions apparently represent what the Constitution considers to be “normal religions.” All other religions, which operate as “house churches,” are subject to government suppression, and the whims of the political leadership. According to Human Rights Watch, government oversight of officially registered religions includes scrutinizing membership, ceding some control over the selection of clergy, opening financial records to the government, allowing censorship of religious materials, interfering with doctrinal thought, and limiting religious activities to religious sites. Many of these limits are against accepted international standards of religious freedom.
Much of the danger to these unregistered religions and organizations lies in the abstract term “cult” identified in the October legislation, the ease to which this label can be affixed to an organization, and the absence of objective criteria that can be applied to determine whether a group should be classified as a cult or religion in accordance with PRC law.
If the notion of the rule of law is to prevail, the law should then set clear parameters. In reality, though, “Article 300 of the Criminal Code, amended in 1997, and as interpreted by the People’s Supreme Court and the NPC, stipulates that central authorities have the right to delegitimize any belief system they deem to be superstitious or a so-called evil religious organization.”
“Cults refer to illegal organizations that promote and deify their leaders in the name of religion, qigong or other establishments,” according to Professor Zhou Zhenxiang, criminal law expert and vice-president of the China Youth Political Science Academy.
[They] try to delude and hoodwink others, recruit and control members, and jeopardize social order through the fabrication and spread of superstition and heretical ideas. They are characterized by leader worship, spiritual control, fabrication of heretical ideas, accumulation of wealth by unfair means, formation of secret societies, perpetration of harms to society, and so on.
The characteristics that supposedly characterize a “cult” were later changed to create an even more abstract definition. During a government-sponsored International Symposium on Evil Cults in Beijing on 9-10 November 2000, local authorities were urged not to debate whether a group is a genuine religion or not. Rather they should view it from the angle of whether it is harmful to society.
What this evolving definition demonstrates is that the government has yet to set up criteria for use by the appropriate ministries to determine which group is a valid religion and which is an “evil cult.” But the effects are not so vague: groups that are labeled “evil cults” may be officially disbanded, and members of the groups may be persecuted if they persist. Moreover, these groups have no objective legal basis to refute the “evil cult” label. The task of determining if a group is a cult has not been delegated to the governmental agencies with expertise in such matters, such as the Bureau of Religious Affairs or the newly-formed Chinese Anti-Cult Association, but has instead been granted to the Public Security Bureaus.
The ambiguous standard has some house church leaders fearing that their own groups will be classified as cults. Since the legislation passed in October, fourteen Christian sects have been labeled as “evil cults,” their facilities destroyed, and their leaders arrested. According to the Information Center for Human Rights and Democracy, 1,200 temples and churches were destroyed in Zhejiang Province alone over a few months span in late 1999. Government officials said they were destroyed because they were not approved by the authorities.
The International Arena and the Case of Chen Zixiu
Human rights in the PRC are based on a philosophy of collective rights. Without guaranteed state sovereignty, a state is susceptible to imperialism, and therefore cannot protect the individual human rights of its citizens, according to collective rights proponents. For that reason, state sovereignty takes precedence over individual rights.
The debate over individual versus collective rights is a question of whether the sovereignty of a state is a sufficient justification against foreign interference in domestic issues related to human rights. Without absolute state sovereignty, a foreign entity might justify an invasion under the flag of human rights and international intervention. International human rights are instituted through treaties, and a state has the obligation to promote human rights based on the treaties to which it has agreed. But a state cannot usually be forced to obey international treaties it is not a party to, if it asserts the supremacy of its own state sovereignty.
On 10 December 1948, the General Assembly of the United Nations and its Member countries—including the PRG—adopted the “Universal Declaration of Human Rights.” Article 2 entitles everyone to the rights and freedoms stipulated in the document regardless of race, color, sex, religion, political, national origin, property, birth, or other status. Article 18 of the covenant grants everyone the right of freedom of thought, conscience and religion, and the right to practice in public or private.
The PRC has also signed, but not ratified, the “Covenant on Economic, Social, and Cultural Rights” and the “Covenant on Civil and Political Rights,” both of which supposedly require the PRC to embrace freedom of association, labor unions, protection from arbitrary arrest, and freedom of religion.
The PRC has ratified the “Covenant Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.” Its ratification has two major reservations; however, and these disclaimers are so significant that the PRC’s promise to abide by the covenant’s provisions are practically empty. First, the PRC government does not recognize the competence of the Committee Against Torture which the covenant created to investigate suspected violations. Second, the PRC government does not consider itself bound by the provision which gives the International Court of Justice authority over disputes about the interpretation or application of the covenant which may occur between two states involved in the disputes. It is important to note that China is not unique in not recognizing the International Criminal Court, or that it has added reservations to treaties that it has ratified. (The United States also has stated reservations on jurisdiction of the Court.) What makes China unique in relation to countries such as the U.S. is that it often points to these treaties to buttress its claims that it does protect its citizens’ individual human rights.
The Case of Chen Zixiu
The PRC government press agency has claimed that all government acts concerning Falun Gong have been in accordance with the law. The PRC has dismissed claims by Amnesty International that torture of Falun Gong practitioners is occurring. Moreover, officials have stated that none have been beaten to death in labor camps. At the same time, the government has forbidden foreign media and human rights observers from investigating any accusations of torture.
The case of Chen Zixiu, which has received considerable international attention, calls the PRC’s assertions into question. Chen’s death and the controversy surrounding it were brought up by the United Nations Committee Against Torture, when the PRC’s compliance with the treaty came up for review. This is but one of possibly hundreds of claimed deaths since the crackdown on Falun Gong began.
Chen was arrested in Beijing for being in violation of the July and October 1999 government ban on protesting the crackdown on Falun Gong. She had just arrived in Beijing and was arrested when she admitted to the police that she was a Falun Gong practitioner. According to cellmates, Chen was told that her beatings would continue until she renounced her faith. Chen eventually died in custody. She was 58 years old.
If Chen died as cellmates, family, and friends have alleged, then the PRC is in violation of the Anti-Torture Covenant it signed and agreed to enforce, as well as the PRC Constitution and other international treaties to which it is a signatory. This case calls into question official claims that the crackdown has taken place in accordance with the rule of law.
Chen’s daughter, Ms. Zhang, was told that her mother’s death was the result of a heart attack. Zhang questioned this diagnosis, however, after seeing her mother’s blackened calves, welts along her back, swollen ears, and broken teeth. After the body was cremated on government orders, Zhang tried to obtain a death certificate in hopes that she could find out the truth. She recalls security agents at the entrance to the Petition and Appeals Office asking petitioners if they were Falun Dafa adherents. All those who admitted to being practitioners were turned away. Failing to get the certificate, Zhang tried to push the provincial procurator’s office to file criminal charges against the Public Security Bureau for failing to release the certificate. She was told to file a civil lawsuit. No lawyer would take her case, however, because the Ministry of Justice had issued a directive to all lawyers advising them not to accept cases related to Falun Gong. Zhang was herself eventually arrested and sentenced to fifteen days in jail for “distorting facts and disturbing social order.”
If Zhang’s story is accurate, then the Ministry of Justice appears to be in violation of two articles of the Constitution. The Ministry of Justice directive is a violation of Article 125, which stipulates that the accused has a right to a defense. In addition, if Falun Gong adherents were turned away at governmental petition offices, then the government is in violation of Article 33 which provides that all citizens of the PRG are equal before the law. Citizens have a constitutional right to petition the government (Article 41). This right cannot legally be denied due to an organizational affiliation.
Justifying the Crackdown to the World
Chen Zixiu lived and eventually died in Weifang, a city in Shandong Province about 250 miles southeast of Beijing. Weifang averages one Falun Gong practitioner death a month in its prisons. This appears to show that the violence is systematic, and stems from policies adopted by Beijing. The government Office 610, a bureau that has been coordinating the crackdown on Falun Gong, issued an order in December 1999, telling officials of local governments that they would be held responsible if they did not stem the flow of protesters to Beijing. Weifang officials were under strict orders to eliminate, by any means possible, the large number of protesters coming from their district. According to Falun Gong practitioners, officials told Chen that they had been told by the central government, “no measures are too excessive in wiping out Falun Gong.” As a result, at least eleven followers have died in custody in Weifang. Some local officials claim that the crackdown has been a mistake, but none of the police involved in any of the deaths have been reprimanded.
At the 57th session of the United Nations Commission on Human Rights, the PRC delegation rejected claims of human rights abuses taking place in their country. The delegation assured participants that the judicial organs in the PRC follow procedural laws and will continue to improve the rights of the accused and the practice of providing legal assistance to defendants. In addition, special offices have been set up to receive and handle complaints about government actions. The delegation stated that the government always respects and protects a citizen’s legal right to freedom of belief and freedom of speech, and strictly prohibits torture. Furthermore, it said, the PRC has always attached importance to the rights of detained persons and prohibits any beating, physical punishment, or torture in accordance with its obligations under the Prohibition of Torture Covenant.
During a news briefing on 21 March 2000, PRG Ambassador Qiao Zonghuai publicly defended the PRG’s ban of Falun Gong. Qiao labeled Falun Gong as a cult that has harmed society with its anti-humanity, society, and science rhetoric; said that the ban was justified; and was being carried out in strict accordance with the law and international human rights requirements. The PRG was following the common practices of all governments regarding cults, he added. Qiao reiterated that the PRG is a country that follows the rule of law, and that no legitimate qigong activities would be suppressed.
The statements made by Ambassador Qiao and the PRG delegation run counter to the crackdown taking place in the PRG. Judicial interpretations passed down to the lower courts encourage the judiciary to convict Falun Gong defendants in an effort to educate the masses. Attorneys are discouraged from taking Falun Gong practitioners’ cases. In addition, the freedom of belief espoused by the PRG delegation and protected under law does not extend to Falun Gong practitioners. In sum, the Party and government’s response to the Falun Gong movement violates citizens’ right to a legal defense, freedom of religion, speech and assembly enshrined in the Constitution and treaties to which the PRG is a party.
And finally, the deaths that have taken place in Weifang—and the case of Chen Zixiu in particular—indicate that torture is taking place in PRG detention facilities with the approval of Party leadership. The PRC’s refusal to investigate these claims, and the reservations made upon signature of the Anti-Torture Covenant do not support the delegation’s positive oudook on reform or the Party’s stated dedication to protecting citizens’ rights.
The recent treatment of Falun Gong practitioners clearly demonstrates that the PRG is not yet willing to recognize the individual rights of its citizens, contrary to statements in its official documents and treaties to which it is a signatory, and that the PRC’s authoritarian tradition is still dominant. After the Cultural Revolution, the Chinese Communist Party’s legitimacy was rebuilt on the promise of political and economic reform. If the harsh reaction to Falun Gong, and the anticult legislation passed over the last few years is any indication, the Party will do whatever is necessary to crush any perceived threat to its supreme control. This represents a move away from the rule of law and toward the historical Mao policy of “rule by man.”
Political reform in the 1980s eliminated the power of local cadres and made it harder for the Party to maintain control over the countryside. Economic reform has created a large disparity between the coastal provinces and rural areas of the PRC, where unemployment rates are very high. It is here that protests and anti-Party fervor are most prevalent. Entry into the World Trade Organization may also lead to more economic growing pains in the PRC and discontent among citizens, making alternatives such as Falun Gong more attractive to some.
The ratio of workers to retirees is now 10 to 1, but will be 6 to 1 in 2020. The number of retirees in the PRG today is larger than the entire population in the United States. Disillusionment among the unemployed, coupled with the retired community’s desire to believe in something beyond the materialist ideology of Marxism, may further increase interest in spiritual and religious movements such as Falun Gong.
Under the principle of democratic centralism as presented in the PRG, there is no entity to guarantee that the Party acts within the parameters set forth by the Constitution. Without a check on Party power, the Constitution can be subverted, and the movement toward the rule of law negated. However, under such a system, the Party stands to lose the very legitimacy it is fighting to protect. If the Party oppresses a large portion of the working class, it is clearly no longer the “party of the people.”
If the regime is to guarantee its position, perhaps it is time for it to put into practice the theories and ideals stated in its official governing documents. This would support the PRC government’s claim to legitimacy and promote the rule of law and the individual rights of its citizens. At some point on the long road toward political and legal reform in the People’s Republic of China, such actions will have to take place.