The restriction on collective petitioning

Article 18 of the Regulations states:  

“Where two or more letter-writers or visitors intend to present the same letter-or-visit matter through visit, they shall choose representatives, and the number of representatives shall not exceed five.”  

Article 18 thus puts a limit on the number of representatives allowed for petitioning groups of any size. This article has been used as the basis of suppression of group petitioning. With very few resources, the government can control a group of petitioners by targeting the main representatives of the group. In practice, this article helps the government to suppress collective action and restrict freedom of assembly and association.

Lack of clarity on what constitutes a “crime”

Article 20 of the Regulations outlines actions petitioners are prohibited from engaging in:  

“Letter-writers and visitors shall, in the course of writing letters or making visits, abide by laws and regulations, shall not harm the interests of the state, society or the collective or infringe upon the lawful rights of other citizens, shall conscientiously maintain public order and the order in handling letters and visits, and shall not commit any of the following acts:

(1) illegally assembling around offices of state organs or public places, encircling and attacking state organs, intercepting official vehicles, or jamming and obstructing traffic;

(2) carrying dangerous articles or tools for controlling others;

(3) humiliating, beating up or threatening functionaries of state organs or illegally restricting other people’s personal freedom;

(4) staying and making trouble at the reception places for letters and visits, or leaving individuals who are unable to look after themselves at such places;

(5) inciting, colluding with, coercing or enticing with money or things of value others to write letters or make visits, or manipulating from behind the scenes others into doing so, or taking advantage of letters and visits to accumulate wealth; or

(6) committing other acts that disrupt public order or impair national or public security.” 

Many of these restrictions appear inherently reasonable. However, they are drafted in vague language that leaves room for law enforcement officials to interpret what constitutes “undesirable” or “unlawful” behavior. In recent years, many petitioners have been sent to RTL or sentenced for “disrupting public order and impairing national or public security” (see Case Study 4).  

A similarly problematic “crime” is “illegally assembling around offices of state organs or public places.” There is no clearly defined boundary between this and the act of petitioning, which necessarily requires petitioners to assemble at the relevant Letters and Visits Offices; thus, petitioners are vulnerable to the charge of “illegally assembling.” Not only does this clause directly violate the right to freedom of assembly guaranteed in the Chinese Constitution, it also provides a ready basis for authorities to prosecute petitioners.

Zheng has been petitioning for years because his house was illegally occupied by the local government. Because of his petitioning, he has been detained and beaten and his family has been threatened. His seven-year-old daughter and his wife were detained for sixty-five days in July 2006. Since early 2007, while his family was petitioning in Beijing, Zheng actively helped hundreds of petitioners and defended their rights.

Recommendations

The violation of petitioners’ human rights is systemic. When legal prohibitions against human rights violations are merely empty promises, to tackle these violations the roots of the problem must be addressed—that is, the social and political system. While aiming at the long-term change of the system which provides the context and the motivation for these rights abuse, there are several concrete and more focused measures that can be taken to improve the situation.

Respect the rights exercised by petitioners, which are guaranteed in the Chinese Constitution

In the short-run, the human rights situation of petitioners could be significantly improved if the Chinese government made efforts to implement the relevant articles in the Chinese Constitution that protect and promote human rights. For example, it is essential that the Chinese government implements Articles 35, 37, 40 and 41 of the Constitution which guarantee its citizens freedom of expression (including the freedom to criticize the government), assembly, association, personal freedom and privacy.

Immediately cease all interception of petitioners

The Chinese government should eliminate all policies and regulations established by various levels of governments that encourage the interception and persecution of petitioners, cease assigning government staff to intercepting responsibilities and cease all interception-related activities including kidnapping, monitoring, arbitrary detention, killing and sentencing of petitioners and harassment of petitioners’ families.    

All petitioners detained in illegal “black jails” and “law education classes” must be released immediately and the illegal detention facilities must be immediately closed.

Reform the incentive system that encourages interception

The current “point deduction system” punishes officials and government units for the number of petitions lodged against them regardless of whether the complaints are true and whether the officials and government units concerned have made efforts to address the complaints. The system should be reformed to encourage the investigation and resolution of the petitions.

Abolish the RTL system

The Chinese government must abolish the RTL system. Any punishment that involves deprivation of liberty must be subsumed under the Criminal Law system where some procedural guarantees exist.

Hold officials accountable for human rights violations

Government officials suspected of ordering or carrying out the abuses of petitioners’ rights and participating in bribery must be held accountable according to the Regulations on Letters and Visits, relevant Chinese laws and the Chinese Constitution. Only when they are held accountable for human rights abuses and corruption will government officials refrain from retaliating against petitioners who are lodging complaints against them or using petitioners as a means of exchange for bribery. China’s laws already contain appropriate punishments for those who violate human rights. For example, Article 238 of the Criminal Law stipulates that,  

“Whoever unlawfully detains another or deprives him of his freedom of person by any other means is to be sentenced to not more than three years of fixed- term imprisonment, criminal detention, control, or deprivation of political rights. In circumstances where beating or humiliation is involved, a heavier punishment is to be given.”

Make complaints procedures impartial

Abolish the “territorial jurisdiction” principle and ensure that the departments or officers in-charge of processing petitions are impartial and independent from those the petition concerns. In addition, the confidentiality of the petitioner’s identity must be ensured, in accordance with Article 23 of the Regulations. For example, petitioners reporting on local corruption or abuse of power should not be identified and be known to the local department or officials involved.  

Article 18 of the Regulations on Letters and Visits, which restricts the number of representatives to no more than five for any collective petition, must be amended so that it explicitly states that the article cannot be used as a basis for punishing petitioners who exceed this limit.  

Article 20 also needs to be amended to clarify and precisely define the meaning of the terms “illegally assembling” “disrupt public order” and “impair national or public security,” as well as the specific conditions under which a peaceful act of expression may constitute these acts. Such conditions must explicitly exclude any non-violent activity in the exercise of the right to freedom of expression, fundamental in the act of petitioning.  

Ensure petitioners have unhindered access to legal aid and to the legal system

The Chinese government must ensure that petitioners are free to report on abuses and organize themselves for purposes of mutual assistance without fear for retaliation.  

The Chinese government should also ensure that petitioners have unhindered access to the legal system. Government-sponsored legal aid must be impartial to political influence. Since official legal aid is often insufficient, petitioners and their organizations promoting human rights should be free to exercise their right to access other sources of funding, including international funding, without fear of persecution, a right recognized in Article 13 of the UN Declaration to Protect Human Rights Defenders (1999). Lawyers and other Non-governmental Organizations (NGOs) should be able to provide petitioners legal aid without intimidation so that petitioners can have better access to the legal system.

Strengthen judicial independence and other alternative channels to lodge complaints

One reason why so many petitioners insist on petitioning is because they often view petitioning as their own chance of obtaining justice. China’s other dispute resolution mechanisms, such as its judiciary, are largely ineffective and/or compromised by political interference. It is therefore essential that the judiciary is strengthened and made independent from political influences. Other alternative channels for citizens to lodge complaints should also be considered so that citizens with grievances do not need to travel long distances, sometimes suffering abuse and becoming destitute along the way.

Strengthen the monitoring of abuses

The Chinese government should guarantee media freedom and allow both foreign and domestic reporters unhindered access to petitioners. Reporters should also be able to broadcast information concerning petitioners without interference or censorship.  

The U.N. Arbitrary Detention Working Group and Special Rapporteur on Torture should request to visit petitioners in China and investigate the alleged violations of petitioners’ human rights. International and domestic NGOs and other civil organizations could also monitor the situation of petitioners by visiting them and learning about their situation. The mere presence of a third party could help to deter persecution of petitioners.

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