Dancing in Shackles  

A Report on the Situation of Human

 Rights Defenders in China (2007)  

A report by Chinese Human Rights Defenders

In its Special Series on Human Rights and the Olympics

Table of Contents 
 
 
Introduction

Contrary to the pledge it made in its 2001 bid to host the 2008 Olympic Games, the Chinese government has made no attempt to protect and promote human rights. In 2007, the situation regarding the rights to freedom of expression and of association and assembly, in particular, worsened.  These are basic rights singled out by the UN Declaration on Human Rights Defenders as essential to the work and protection of HRDs. A number of laws and regulations adopted in the past decade continued to restrict these rights in 2007. Authorities stepped up monitoring and surveillance of activists and non-governmental organizations (NGOs) and imposed stricter bans on gatherings and demonstrations. The government also developed more sophisticated tools to control and restrict free speech on the internet and in telecommunications. 

In spite of official repression, the nascent civil rights movement, “weiquan yundong” (literally translated as rights defense movement, 维权运动) continued to grow. As described in CHRD’s 2006 HRD report¹, China’s civil rights movement, similar to those in other parts of the world, has as its clear objective the promotion and protection of human rights and constitutional rights through non-violent means. In 2007, the movement expanded to encompass a broader range of rights issues, with individuals challenging in their immediate environment official abuses of civil and political rights as well as the rights to health, to a clean environment, and to housing and land. Citizens from many walks of life were active in many regions of China. Not only did they develop a repertoire of tools to press for change, they also experimented with new strategies, including utilizing laws in the deeply flawed legal system, to promote human rights, and made use of modern telecommunications and the internet to influence public opinion, organize and mobilize.  

Yet HRDs suffered substantial political persecution in China in 2007. In particular, repression intensified in politically “sensitive” time periods, such as the 17^th Party Congress in October, elections of local National People’s Congresses (NPC) held throughout the year in various provinces, and, more generally, in the lead-up to the Beijing Olympics in 2008. As factions amongst the government leadership did not wish to appear “weak” or “indecisive”, particularly during and prior to the sensitive political events, authorities nervous about widespread social disturbances tightened surveillance, harassment and persecution of HRDs, whom they viewed as “trouble-makers”.  

In 2007, the harassment and persecution of HRDs took various forms. They were taken into custody for interrogation, placed under residential surveillance or house arrest, monitored in their homes and followed by police and other security officers. Their personal correspondence and communications, particularly via the internet and mobile phone, were monitored by “cyber-police”. Some were detained or jailed. Many underwent police searches of their private residences and loss of personal belongings to illegal confiscation. Some were severely beaten by unidentified persons thought to be linked to officials. A number were sent to Re-education through Labor (RTL) or sentenced to prison.  

Especially worrying trends in 2007 included (1) the use of laws, especially the crime of “inciting subversion of state power”, to punish individuals exercising the right to freedom of expression, (2) arbitrary detention in extra-judicial facilities such as RTL and “black jails”, and (3) targeted persecution of leading rural and labor organizers, human rights lawyers, and independent writers and journalists.

On the basis of this report’s findings and analyses, CHRD makes the following recommendations to key players. These recommendations are elaborated in the Conclusion of the report. 

To the Chinese government

1. The National People’s Congress Standing Committee (NPCSC) must act to interpret Article 105(2) of the Chinese Criminal Law to clarify and precisely define the meaning of the terms “incitement,” “subversion” and “state power,” as well as the specific conditions under which an act of expression may constitute “incitement to subversion of state power.”
2. The NPC must abolish the RTL system. In addition, all individuals detained in “black jails” and other illegal detention facilities must be released immediately and the facilities must be immediately closed.
3. The NPC must amend the newly revised “Lawyers Law”.
4. The NPC should conduct a constitutional review of the State Council’s “Regulations of the Administration of Internet News Reports”.
5. The NPC should conduct a constitutional review of the “Regulations for Registration and Management of Social Organizations”.

1. The UN Human Rights Council, the E.U. and concerned governments should take appropriate measures under their mandate to strengthen their programs protecting and assisting China’s HRDs.
2. China’s “human rights dialogue” partners must critically review the impact of their decades-long “diplomatic engagement.”  Such “dialogues” must identify concrete benchmarks and set timetables.
3. The relevant UN human rights bodies must monitor the Chinese government’s implementation of its obligations to inform Chinese citizens about international human rights and facilitate their participation in human rights activities.
4. International key players must keep up their advocacy work, campaigning for imprisoned and harassed HRDs.

About this report:

This report is the second CHRD annual report on HRDs. It has been compiled and edited by Chinese activists, including scholars and lawyers, with editorial and translation assistance from international supporters. It is based on information CHRD collected from January 1 to December 31, 2007, which includes news and reports published by HRDs in China and CHRD’s own publications (such as China Human Rights Briefings). Information on important developments in early 2008 has been added as much as possible. In March 2008, CHRD circulated a draft of this report in Chinese for general public comments. The current version has been revised on the basis of the corrections and sound suggestions.²  

About Olympics & Human Rights Special Series

This report is part of CHRD’s “Special Series on Human Rights & the Olympics”. In this series, CHRD will issue in-depth studies as part of its campaign to push for human rights improvement, raising international attention to rights abuses related to official preparations for the 2008 Summer Olympics. Reports in this series include: 

‘“Inciting Subversion of State Power”: A Legal Tool for Prosecuting Free Speech in China’, published on January 8, 2008.

“Silencing Complaints: Human Rights Abuses against Petitioners in China”, published on March 11, 2008.

“‘Black Jails’ in the Host City of the ‘Open Olympics’”, published on September 21, 2007

Part I. Norms and Definitions

“Everyone has the right, individually and in association with others, to promote and to strive for the protection and realization of human rights and fundamental freedoms at the national and international levels.”  

According to the Declaration, HRDs are defined as “individuals, groups and associations… contributing to…the effective elimination of all violations of human rights and fundamental freedoms of peoples and individuals”. 

It is important to note that the Chinese version of this definition has some obvious mistakes: “individuals, groups and associations who have made huge contribution to the effective elimination of all violations of human rights and fundamental freedoms of nationalities and individuals.” First of all, “peoples” cannot be translated as “nationalities”. Secondly, the use of the qualifier “huge” distorts the original meaning and in effect excludes from the definition many ordinary citizens who make small but significant contributions to the defense of human rights. 

In addition to stipulating the right to defend human rights, the Declaration also reaffirms states’ responsibilities to: 

• “Protect, promote and implement all human rights and fundamental freedoms”  (Article 2)
• “Promote and facilitate the teaching of human rights and fundamental freedoms at all levels of education” (Article 15)
• “Conduct a prompt and impartial investigation or ensure that an inquiry takes place” when there is a violation of human rights within its territory (Article 9)
• Take all necessary measures to ensure that HRDs are protected against “any violence, threats, retaliation, de facto or de jure adverse discrimination, pressure or any other arbitrary action as a consequence of his or her legitimate exercise of the rights” to defend human rights. (Article 12)

Part II. An Assessment of Two Key Freedoms for Defending Rights

1. Freedom of expression

In 2007, authorities focused their restrictions of free expression on two types of media in particular, telecommunications and the print media. Individuals who dared to speak up for human rights were often charged with criminal offenses and prosecuted.

Telecommunications control

As the internet and its related telecommunications services have become major tools for Chinese citizens to receive, transmit, exchange and publish information, they were also the media the government tried hardest to control in 2007. Government institutions tightened their grip over telecommunications through a complex administrative management system, whereby authorities issued administrative regulations and daily instructions to telecommunications companies. These regulations and instructions were dictated to the internet service providers (ISPs), who then proceeded to delete postings and close or block websites containing the “sensitive” information specified by authorities.

a) Administrative regulations and daily instructions

Government departments used administrative regulations and daily instructions to closely monitor, censor and control the internet. Chinese citizens not only lacked the freedom to express independent (political) opinion on the internet, but were often subjected to surveillance when they used the Internet. Even more alarmingly, the internet became a tool for persecuting free expression, as articles posted on the internet were used as “evidence” to prosecute individuals. The ways in which the regulations and instructions were used was extensively documented in a joint CHRD and Reporters Without Borders (RSF) report, Journey to the Heart of Internet Censorship, published in October 2007. 

In addition, government regulations, such as the “Regulations of the Administration of Internet News Reports”⁴, required that all internet media be run by organizations registered with or recognized by the government and that the qualifications of such organizations be subjected to regular inspection. This made it impossible for individuals or unregistered groups to publish independent information on their own websites without risk of penalty. When authorities deemed published information “sensitive”, they could use the Regulations as a justification to close down or block such “unregistered” websites.  

In 2007, there were several notable administrative regulations on telecommunication media such as mobile phones which in effect constrained the flow of information and access to information as well as invading privacy.  

On December 17, the Beijing Municipal government released a notice⁵ stating that individuals who sent mobile phone text messages that "propagate and spread rumors" and "endanger public safety" would be investigated and held legally liable by the Beijing Public Security Bureau (PSB) with assistance from the Telecommunications Department as well as relevant government departments and telecommunications companies.⁶  

On December 20, the Guangdong Provincial NPCSC passed a regulation⁷ stating, “In the event of a major emergency that endangers state safety, public safety and social stability, public and state security organs of people’s governments above prefecture level may adopt measures such as temporarily shutting down of [internet and other telecommunications] networks…for as long as 24 hours.” This established a precedent whereby public security organs were given the power to suspend networks-- the internet and mobile phone networks —during major emergencies.

b) Actions to implement regulations and instructions

Typically, article postings, blogs and websites considered “sensitive” were blocked, deleted or closed down. Individuals responsible for the postings, blogs and websites were sometimes forewarned about the imminent censorship, either directly by the authorities involved or indirectly by the internet providers, which in some cases appeared to be practicing self-censorship and in others appeared to be instructed by authorities to do so. The authorities gave many reasons for the enforcement actions, including “17^th Party Congress security”, and users publishing “harmful information” and failing “to file a certain required document”.  Sometimes no reason at all was given. Individuals who suffered repeated censorship were often “advised” to cease their rights defense work altogether. 

However, websites and blogs showed remarkable resilience in the face of forced closure. Through means such as making concessions such as modifying or changing headlines and content and threatening to take legal action against the ISP concerned, the censored websites or blogs often managed to re-open. China Information Consultation Net (中国国情咨询网), for example, was closed by the authorities eighteen times (as of September 19, 2007) since it was founded in November 2005. After its closure in May 2006, the relevant authorities re-opened it a month later, reportedly due to international and domestic pressure and advocacy following the website’s public appeal for assistance. 

During the 17^th Party Congress in October 2007 alone, “about 2,500 websites, blogs and forums were closed in the space of a few weeks”⁸ according to RSF. It is impossible for CHRD to document all closures, but Appendix I contains examples of websites and blogs promoting human rights, expressing public opinion and monitoring government abuses that suffered official censorship in 2007. 

A variety of other methods have been used by the Chinese government to enforce these regulations and instructions. For example, hours after the CHRD and RSF report, Journey to the Heart of Internet Censorship, was published, the head of the Beijing Information Office (which is in charge of internet control) circulated an order to websites and ISPs to update their lists of banned keywords to include those used throughout the report in order to prevent online circulation of the report. As a result of this order, internet users in China searching for the banned keywords received no results.⁹

Control of freedom of expression on the internet could also take more roundabout forms cloaked in seemingly legitimate concerns. For example, in August 2007, two harmless-looking virtual police “appeared” on many government, e-commerce and news websites as an initiative of the Jiangxi Provincial Police to tackle internet pornography. Reportedly, the virtual police were available 24 hours a day and responded immediately to requests or reports of “criminal activity” from internet users.¹⁰ On November 28, in a similar “Fight Internet Pornography Campaign” by Mianyang City, Sichuan Province, over 2,000 websites and internet forums were closed down, including many politically sensitive websites, such as China Citizens Monitor Net (中国民间监督网), an anti-corruption and citizen watch website.¹¹

Control of the Print Media

On January 1, 2007, “Regulations on Reporting Activities in China by Foreign Journalists during the Beijing Olympic Games and the Preparatory Period”¹² came into effect. According to the Regulations, foreign journalists are no longer required to apply to provincial foreign affairs offices for permission to carry out reporting in China—they only have to obtain the consent of individuals or organizations they want to interview. Chinese reporters, by contrast, were not granted similar privileges. 

Overall, the Chinese government did not loosen its grip over the print media in 2007. Although the Chinese Constitution guarantees freedom of the press, Article 11 of the “Regulations on the Administration of Publication”¹³ promulgated in 1997 by the State Council demands that each publisher obtain the sponsorship of a government agency (a “sponsoring” office) and of the agency supervising the sponsoring agency (an “oversight office”) recognized by the administrative department for publication under the State Council. The Regulations has become an insurmountable obstacle to anyone intent on independent publishing. 

The Chinese government also continued its routine practice of banning newspapers and books. For example, on January 11, 2007, a book by democracy activist, Yao Lifa (姚立法), entitled I Accuse: The Road to Politics by a Member of the People's Congress, was banned, along with seven other books, by the General Administration of Press and Publication (GAPP).  Authors of books did not acquiesce. Two of them filed lawsuits against GAPP, the first of their kind in Chinese history. However, the courts refused to hear the lawsuits, acknowledging to one of the plaintiffs, “The court is in every way restricted by the government.”¹⁴  

Publications beyond bounds acceptable by the authorities were not always banned immediately but were instead pressured to forgo their focus on so-called “sensitive” political and social issues. On March 5, Cai Jing (财经), a financial magazine, was forced by “higher authorities” to replace a number of its feature articles which focused on property and housing rights, sensitive issues in China, with those that discussed the stock market instead.  

2007 also saw some roundabout ways of penalizing out-of-line publications and journalists. In mid-November, after international reports of toxic ingredients found abroad in goods exported from China, authorities suspended advertisements of medicine, medical treatment and health food in Southern States Metropolitan News (南国都市报), Jinan Times (济南时报), Wenzhaixun Post (文摘旬报), and Books and Magazine Post (书刊报), publications known to be particularly outspoken on social and political issues, as punishment for “publishing many untrue advertisements”. In July, the Publicity Department declared that Pang Jiaoming (庞皎明), a journalist at China Economic Times, had “fabricated news” when he published a highly-publicized report exposing the use of inadequate materials in one of China’s most important construction projects. The Publicity Department then warned all news media in the country to not employ Pang.

The lack of protection of journalists’ safety was another very serious problem restricting press freedom in 2007. On November 13, two reporters from Jingji Cankao News (经济参考报), Xiao Bo (肖波) and Wang Wenzhi (王文志), went to a company based in Henan to investigate allegations of serious pollution. Upon arrival, the two were immediately surrounded by factory staff, and their journalist IDs confiscated. The police came to the factory, took the two to the police station and interrogated them. The journalists were released only after mediation by their newspaper company and the local publicity department. Xiao and Wang returned to the factory the day after, this time armed with permission to report from the local publicity department, but they again found themselves surrounded and even beaten by a number of the men from the factory.   

See Appendix II for more selected cases of print media censorship as documented by CHRD in 2007.

Persecution of Free Speech

In 2007, Chinese courts continued to use trumped-up charges to prosecute individuals for exercising the right to freedom of expression.  

One of the authorities’ favorite charges to criminalize free expression was article 105(2) of the Chinese Criminal Code, which stipulates the crime of “inciting subversion of state power.” (See the section “3. Inciting subversion of state power” for a detailed discussion) A plethora of other charges were also invoked to punish those who dared to write or report independently. For example, Qi Chonghuai (齐崇淮), a Fazhi Morning Post reporter known for his reporting on social justice issues, has been detained without prosecution for “extortion and blackmail” since June 25, after reporting on a construction scandal associated with the Chinese Communist Party (CCP) Committee in Tengzhou City, Shandong Province. Another reporter, Sun Lin (孙林, also known as Jie Mu (孑木)), has been detained for “illegally carrying of firearms” by the Nanjing authorities since May 30, 2007. Prior to his detention, he reported for the overseas Internet news website, Boxun, on cases of forcible demolitions in Nanjing, which attracted much attention to the issue.

2. Freedom of association and assembly

Officially, there are between 32,000 and 35,000 registered civil society organizations in China.¹⁵ However, they are not “Non-Governmental Organizations (NGOs)” as commonly understood internationally. Strictly speaking, they are “Government Organized NGOs (GONGOs)”. Currently, many individuals representing Chinese “NGOs” in international arenas (such as the EU and the UN) are actually government employees in associations (e.g. All China Federation of Trade Union) and research institutions that are subordinated to various government departments.   

The operating environment of truly independent civil society groups did not improve at all in 2007. The government did not relax any of the policies or legal regulations it used to control such groups. In addition, it continued to suppress freedom of assembly by severely punishing organizers of demonstrations or protests and strictly banning meetings or gatherings by groups and loosely-connected individuals under suspicion because of their rights activism, including dissident writers, public-minded intellectuals, and lawyers, particularly at politically “sensitive” times.

Freedom of association

Policies and regulations adopted by the authorities to suppress freedom of association can be broadly divided into the following two categories:

1. Polices and regulations that severely restrict the establishment, survival and effective operations of civil society groups (which include political opposition parties, independent unions, peasant associations, etc.)
2. Polices and regulations that prohibit civil society groups from contacting, cooperating with or receiving aid from international organizations for the purpose of peaceful activities.

1) Polices and regulations that severely restrict the establishment, survival and effective operations of civil society groups

Since the “Regulations for the Registration and Management of Social Organizations”¹⁶ came into effect in October 1998, it has been an effective tool for the government to control freedom of association. Under the Regulations, all civil society groups have to register with and must be approved by the Ministry of Civil Affairs or its provincial counterparts. To do so, an applicant organization must first find a “business/management sponsoring office” and an “oversight office” within the government willing to sponsor it.  

In practice, few civil society groups manage to associate with an “oversight office”. As a result, some of them operate without registration and run the danger of being closed down for being “illegal organizations”. Many civil society groups such as Wenling Farmers Association (温岭农民协会), Pingnan Home of Green (屏南绿色之家) and Shouguang Goodwill Volunteers (寿光市爱心义工) were banned in 2007 as “illegal organizations” using the Regulations (see Appendix III and Case Study 1).  

Even when civil society groups manage to register properly, once their activities show any real independence, higher authorities, sometimes through the local police bureaus, will then put pressure on their oversight offices, which in turn press their sponsoring offices to warn the groups against overstepping acceptable boundaries and to threaten to disassociate from them if they do not heed the warnings. Even if these offices could withstand the pressure, the groups sponsored by them may not have their status renewed by the civil affairs administration and thus become “illegal”. 

As a result of the government restrictions, many civil society groups are forced to register as a commercial firm in order to function legally. However, as “for-profit” corporations, they are confronted with various financial and tax issues that they have little capacity to handle. To make matters worse, they are vulnerable to being closed down by the authorities for “violating” tax regulations.  

A few independent civil society groups do manage to exist, even if only briefly, despite all the aforementioned obstacles. However, such groups, especially if their work involves “sensitive” issues, are targeted for monitoring and surveillance by the State Security police (guo an, under the State Security Bureau) and the National Security police (guo bao, under the PSB). Their phones and email are constantly monitored by the police and their websites are sometimes forcibly closed down. Police sometimes raid their offices and confiscate their computers. Individuals in such groups are routinely taken away by security agents for “a chat”.  During the “chat”, the individual has to “report” to the police on their group’s activities, and they are often “persuaded” to “cooperate” with the authorities. Some of them could even be detained or “disappeared” for days or weeks for the purpose of intimidation (See Case Study 2: Head of HIV/AIDS Organization Treads Fine Line).   

2) Policies that prohibit civil society groups from contacting, cooperating with and receiving aid from international organizations for the purpose of peaceful activities

Insufficient funding is a problem for many civil society groups, but it is even more so for those in China because of the difficulties and dangers involved in obtaining foreign funding. The situation is worse for those who dare to combat corruption and human rights violations. The Chinese government has used various methods, such as requiring foreign foundations that operate openly in China to register with and be approved by the authorities, in order to ensure that the foundations are under the government’s control and are “self-disciplined”. Although Chinese government departments, GONGOs and other state agencies have received enormous amounts of foreign funding (funding from foreign governments, international foundations and charities), civil society groups that attempt to gain access to similar sources of funding are attacked as “under the control of foreign powers hostile to China”, “receiving the assistance of foreign subversive forces” and attempting to organize a “colored revolution”.¹⁷ As a result, independent civil society groups rarely receive foreign assistance. Groups that do, despite all odds, have to tread very carefully in order not to violate certain unspoken, ambiguous rules. 

Even the seemingly harmless act of meeting international organizations abroad can be considered a “threat to state security” by authorities. Many activists are denied passports for such purposes as the public security institutions that process their passports are the same as those monitoring them. Members of groups working on less sensitive issues or those with official sponsorship are often denied opportunities by their sponsoring offices or the police in charge of monitoring them to meet international organizations or participate in activities abroad. This “approval process” occurs informally. Disapproval is conveyed through means such as inviting the activists for a “chat”, a “cup of tea” or a “meal”. If these methods are ineffective, the police then stop the individuals concerned at the border to prevent them from leaving the country and even confiscate their passports. Those who manage to participate in international activities without prior approval are, when they return to the country, sometimes summoned, forced to “chat” or “explain” to authorities the details of their activities while abroad, as well as giving names of participants in events they attended and sponsors of the events. (See Case Study 3) 

These policies and legal regulations to “manage” civil society organizations have in effect infringed their rights to freedom of assembly and association and seriously obstructed the healthy growth of civil society and the work of defending human rights. They explain why, apart from a few human rights websites run by individual HRDs with the help of volunteers and citizen journalists (such as 64tianwang, Citizen’s Rights and Livelihood Watch, etc.), no human rights organizations could operate openly, independently and effectively in China in 2007. (See Appendix III for selected cases of restrictions of freedom of association as documented by CHRD in 2007.)

Freedom of assembly

In 2007, the government continued to use law enforcement tactics to suppress the right to freedom of assembly. The police routinely refused to approve requests for peaceful gatherings and demonstrations, broke up such events, and punished their organizers when the events occurred without prior approval which was practically impossible to obtain in the first place.  

In 1989, soon after the Tiananmen demonstrations were crushed, the NPCSC promulgated the “Law of the PRC on Assemblies, Processions and Demonstrations” (hereafter referred to as “the Assembly Law” ¹⁸). According to the Law, to hold an assembly, procession or demonstration, there must be a person or persons responsible for the event. The person(s) responsible must submit a written application for approval by the relevant public security institutions five days prior to the event. The application needs to specify details such as the name, occupation and address of the person(s) responsible and the slogans and vehicles to be used.  

The Assembly Law contains so many prohibitions against holding meetings or demonstrations that it might more accurately be called the Anti-Assembly Law. The Assembly Law also gives too much decision-making power to the PSB.  The police have the power not only to reject applications for holding events but also to punish organizers if they violate any of the many restrictions articulated in the Assembly Law. For example, Article 33 not only restricts organizer(s) of an assembly to local residents, but it also gives the local PSB power to punish those who violate this restriction: 

“If a citizen, in a city other than his place of residence, starts or organizes an assembly, a procession or a demonstration by local citizens, the public security organ shall have the authority to detain him or send him back by force to his place of residence.”  

When individuals do submit applications with the PSB to host assemblies, demonstrations or processions in accordance with the law, the local PSB almost always rejects the application or intentionally delays its processing. In the eighteen years since the Regulation was enacted, the PSB has approved no applications submitted by citizens for holding demonstrations against government policies, regulations or officials. The PSB often invokes the vaguely-defined concept of “public security” or “public order” described in Article 12 (4) of the Assembly Law as grounds for rejecting an application (see Case Study 4). In more extreme cases, the local PSB even arrests and prosecutes the applicant for filing the application. Article 12 states: 

“No permission shall be granted for an application for an assembly, a procession or a demonstration which involves one of the following circumstances: 

(1) opposition to the cardinal principles specified in the PRC Constitution;

(2) harming the unity, sovereignty and territorial integrity of the state;

(3) instigation of division among the nationalities; or

(4) the belief, based on sufficient evidence, that the holding of the assembly, procession or demonstration that is being applied for will directly endanger public security or seriously undermine public order." 

When their applications are rejected by the PSB, organizers of these events have little recourse. According to Article 13 of the Assembly Law:  

“If the person(s) responsible for an assembly, a procession or a demonstration does not accept the competent authorities' decision not to grant permission, he may apply to the people's government at the same level for reconsideration within three days of receiving notice of the decision, and the people's government shall make a decision within three days of receiving the application for reconsideration.”  

What if the individuals concerned are dissatisfied with the result of the reconsideration? The Assembly Law fails to stipulate any further step, such as filing an administrative lawsuit. Without such a stipulation, the individuals concerned are unable to dispute the reconsideration and as a result, the local government effectively becomes the final arbiter of the dispute.  Additionally, “local government” is a vague referent, leaving the applicant with no specific office to appeal for further adjudication, which in practice often causes confusion and delay of adjudication. 

The Assembly Law clearly offers inadequate protection of the right to freedom of assembly as guaranteed in the Chinese Constitution and various international human rights instruments. It is in urgent need of amendment.  

In addition to the Assembly Law, other legal regulations have also seriously restricted citizens’ right to freedom of assembly. For example, Article 18 of the Regulations on Letters and Visits¹⁹ states:  

“Where two or more letter writers or visitors intend to present the same letter-or-visit matter through a 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 to inhibit collective petitioning. With very few resources, the government can then prevent mass protests in front of government offices and control a group of petitioners by targeting the main representatives of the group.  

Because the authorities never approve applications for assemblies, demonstrations or processions against government policies, actions or officials, groups have resorted to organizing spontaneous events without seeking prior approval. No official statistics regarding the number of demonstrations in China in 2006 or 2007 have been made available. However, official statistics for previous years suggested that the number of “mass incidents” had steadily increased to 85,000 in 2005.²⁰ It is impossible to document all of the spontaneous demonstrations in 2007, but Appendix IV enumerates those which met official suppression for demanding justice or rights protection. These incidents illustrated that, not only were the rights to association and assembly not respected, but large-scale police efforts were often made to suppress and silence citizens who exercised their basic human rights.  

Analyzing the record of suppressed assemblies and demonstrations, CHRD finds that groups that commonly organize and participate in such events include:  

• farmers/villagers
• workers (including migrant workers)
• petitioners
• victims of forced eviction
• members of Christian house churches

CHRD also finds that most events concern the following broad categories of rights:

• Land rights: Many demonstrations and protests in 2007 were spurred by alleged land appropriation for profit by local officials (operating often in collusion with commercial developers). 
• Workers’ rights: Factory workers and migrant laborers also staged sit-ins and demonstrations and strikes to protest unpaid wages or hazardous working conditions in 2007.
• Housing rights: Protests against forced evictions and demolitions without adequate compensation, especially because of the construction of Olympics facilities, made up a large proportion of spontaneous protests last year.
• Reproductive rights: Villagers in some provinces have complained about violence against women and their families for violating the “one-child” family planning law.
• Rights to freedom of expression: Petitioners are particularly targeted for suppression when they petition collectively.
• Right to health: Demonstrations for the right to health focus on two main areas, for better treatment and care for HIV/AIDS patients and against environmental pollution. Protests against the latter increased in 2007. The head of the State Environmental Protection Administration admitted, “An ever-deteriorating environmental situation has resulted in a rising number of ‘mass incidents’.”²¹
• Religious freedom: Authorities still disperse and persecute individuals who organize and attend house churches.

Part III. A Fragile Movement in Emerging Civil Society 

While the overall environment remained repressive, CHRD finds indications of a growing human rights consciousness among Chinese citizens in 2007. As China became more integrated into the international community, its rulers could not simply pick and choose what the world had to offer—as commercial goods crossed borders, so did ideas and values. International human rights organizations’ criticisms and documentation of China’s human rights abuses made it impossible for the government to ignore or deny the violations. At the same time, Chinese people became more aware of China’s human rights obligations. Both individuals and groups took many initiatives to promote and protect human rights. They pushed for reform of the existing system against all odds.  They demonstrated great courage and resourcefulness in adopting new strategies to make the system work or expose its defects. Many of them were punished severely by authorities for their efforts and paid a heavy price with their freedom and personal safety. This chapter elaborates on both aspects of the burgeoning rights defense movement, part of an increasingly assertive civil society in China. 

1. Expanding Participation

Examining the actions undertaken by ordinary citizens organizing to promote and protect their legal, constitutional and/or human rights (see Appendix V), CHRD observes several positive trends in 2007.  

Chinese citizens beyond the usual dissident community pressed for greater civil and political liberties. In the beginning of the year, 1010 petitioners released an open letter calling on the Chinese People’s Political Consultative Congress (CPPCC) and the NPC, then in session, to enact a number of legal reforms to better protect civil and political rights. In October, a member of the Anhui Provincial CPPCC Standing Committee, Wang Zhaojun (汪兆钧), published an open letter advocating freedom of expression. In November, Guo Quan (郭泉), Nanjing Normal University Associate Professor, published a series of public letters calling for a multi-party democracy for China. In December, a group of academics and lawyers proposed abolishing Re-education Through Labor (RTL), a form of extrajudicial detention.  

Many Chinese became acutely aware of their rights to health and to a clean environment. On June 1, about 20,000 demonstrators in Xiamen City, Fujian Province, protested against the plan to build a chemical plant in the city, eventually forcing the city government to abandon the plan. This much-celebrated success, together with many other less successful citizens’ actions against pollution, shows that the right to a clean environment is likely to continue to grow in importance and galvanize many sections of the population, leading to a larger number of actions in defense of rights in the years to come. As the Xiamen demonstration indicates, rights to freedom of expression and assembly are instrumental to seeking protection of the social and collective right to clean air and water.  

With the passage of the “Property Law”²² in 2007, Chinese citizens now have a legal claim to their private property and they have actively defended it. From the emergence of many so-called “nail households” (people who refuse to abandon their houses when facing forced demolitions), to the public notice issued by 40,000 villagers in 72 villages in Fujin City, Heilongjiang Province, declaring their rights to 100,000 hectares of village land allegedly expropriated by local officials, these actions illustrate rising consciousness among citizens of legal property (housing and land) rights, fundamental to securing social and economic human rights.  

In 2007, the rights defense movement also saw participation and involvement by people of increasingly diversified social backgrounds, with a visible presence of professional and middle classes. As more people from white-collar, property-owning social groups defend their own interests and rights (such as property and consumer rights, the right to privacy, and the right to a clean environment), they become aware of the instrumentality of civil and political rights to the struggle for their more immediate interests. Their struggle also exposes them to systemic injustices, thus making them aware of other groups’ struggles and encouraging them to regard these groups in a more sympathetic light. The participation of members of the middle class, who are technologically savvy, knowledgeable about the law, and more resourceful in organizing, has enriched and strengthened the rights defense movement, which has until now been shaped by labor organizers, villagers, and the tiny elite circle of public intellectuals (including writers and journalists) and public-interest lawyers.  

As the rights defense movement matures, participants have developed a repertoire of approaches and actions which proved popular in 2007:

• open letters or petitions addressed to top leaders, signed by individuals, protesting against particular human rights abuses
• legislative proposals addressed to legislative bodies or individual representatives to the NPC, making specific suggestions and calling for legal reforms for the protection of rights.
• lawsuits against government departments, officials or corporations for alleged violations of human rights
• demonstrations, sit-ins and marches
• public forums for debating policies and discussing strategies for action 

These methods, especially releasing open letters and filing lawsuits against the government, are considered not highly confrontational and relatively effective. Many rights defenders have used them. Of course, when they are used to demand human rights in relation to highly sensitive political issues such as seeking justice for those killed in the 1989 Tiananmen demonstrations, or when they are used during certain sensitive periods, such as the Olympic Games, the authorities still retaliate against rights activists for having employed such methods. This is even more the case when those defending human rights are from less privileged social backgrounds, such as petitioners and farmers. 

It is important to note that, in 2007, as more Chinese citizens had access to modern telecommunications tools, activists were able to reach and mobilize a greater number of people to defend human rights within a shorter period of time. The authorities were left with less advance warning to nip activist initiatives in the bud. However, the authorities’ increasingly sophisticated control over telecommunications technology may mean that this advantage could disappear in the near future. 

Even if actions taken by citizens to defend rights eventually “fail”, as they often do, to overturn a policy decision, change the law or obtain the release of prisoners of conscience, they expose the limitations and defects of the existing system, raise public awareness and stir up public demand for greater protection of rights. In this sense, regardless of their concrete, immediate outcomes, these rights defense activities have a positive impact on the long-term promotion of human rights.

2. Risks Confronted by Human Rights Defenders

In 2007, many HRDs were frequently subjected to various kinds of persecution and retaliation, including:

• Arbitrary detention²³
  • house arrest (or “soft detention” 软禁)
  • detention in illegal temporary facilities or “black jails” such as inns or government buildings
  • Re-education through Labor (RTL)
  • arrest and imprisonment on trumped-up or groundless charges
• Torture, violent assaults and other cruel, inhuman or degrading treatment
• Disappearance
• Police monitoring
  • residential surveillance
  • being followed by security agents
  • wire-tapping
  • monitoring of internet communications
• Other forms of harassment and intimidation

• being summoned by police for questioning
• having private residences searched and raided
• confiscation of personal property
• being barred from practicing law (human rights lawyers)

To better illustrate the situation faced by HRDs in 2007, below CHRD divides HRDs into two groups according to type: 1) human rights activists and 2) human rights lawyers. “Human rights activists” includes all individuals and groups who participate in the defense of human rights. “Human rights lawyers” refers more specifically to those who help victims of human rights violations to seek accountability and remedy through legal procedures, often offering legal consultation or defending their cases in court free of charge. This is only a rough classification, intended to highlight the different risks faced by different kinds of HRDs in 2007.

Human rights activists

Arbitrary Detention

House arrest (or “soft detention” 软禁)

Authorities routinely put HRDs under house arrest and restrict their freedom of movement, especially when they want to bar them from protesting or submitting petitions to government offices, meeting other HRDs or attending international events. Families of imprisoned or detained HRDs are often subjected to house arrest as well, as the authorities strive to ensure that they remain silent over the situation of the HRDs concerned.   

For example, Gao Yaojie (高耀洁), a 76-year-old doctor and one of China’s most prominent HIV/AIDS activist, was put under house arrest to prevent her from traveling to the US to receive a prestigious human rights award. The retired doctor was detained at her house on February 1 and prevented from traveling to Beijing to apply for a US visa. Authorities in Zhengzhou, Henan Province warned her against traveling abroad and kept her under surveillance for weeks. Following international protest, and with the intervention of US Senator Hillary Clinton, Gao was allowed to travel to Beijing, where she obtained a 14-day visa to the US.

On November 3, dozens of well-known HRDs and dissidents such as Mo Shaoping (莫少平), Hu Jia (胡佳) and Zeng Jinyan (曾金燕) were put under house arrest or administrative detention to prevent them from attending a memorial service for Bao Zunxin (包遵信), an influential dissident intellectual who inspired the 1989 pro-democracy movement. About 200 people who had planned to attend the service were prevented by the police from going.²⁴

Detention in illegal temporary facilities or “black jails”

Chinese police routinely detain HRDs in government buildings, police-owned or government-run hotels, or rent hotel rooms for the purpose of incarceration. (See the section, “Black Jails”, for a detailed discussion.) 

On December 18, a group of plainclothes police barged into the home of Li Jianhong (李剑虹, also known as Xiaoqiao (小乔)), dissident writer known for her articles promoting human rights, and put her under house arrest. The day after, Li and her father were taken to the police station. The policemen refused to release Li and threatened her father that if he disagreed with them detaining Li at a hotel, he would be detained at the police station. Li was then detained at a hotel between December 19 and 23. Li was detained to prevent her from attending an Independent Chinese PEN gathering scheduled to be held on December 22 in Beijing. Police told Li the detention was requested by the National Security Unit of Beijing PSB.²⁵

Huang Yan (黄燕), a friend and assistant to the disappeared human rights lawyer Gao Zhisheng (高智晟), was kidnapped on September 22 outside of her residence in Haidian District, Beijing, by the National Security Unit of Beijing PSB. Huang was kidnapped the same day Gao was taken away by Beijing police. They first detained her for four days at a hotel near Beijing International Airport, where she was beaten, before handed her to the National Security Unit of Hubei PSB. She was then detained at an inn in Jingzhou, Hubei Province until she was released on October 23. During her detention in Jingzhou, Huang was also beaten and mistreated.

Re-education through Labor

RTL is an administrative measure, meaning that it occurs outside of any judicial process and is “administered” directly and arbitrarily by law enforcement officials. It is a system of arbitrary detention that is frequently used to punish HRDs without charge or trial. (For more detailed analysis, please see the section on 1. Re-education through Labor later in this report.) 

Li Guohong (李国宏), from Chongqiang City, Sichuan Province, is a laid-off workers' representative at Zhongyuan Oil Field. Li and other representatives have been petitioning higher authorities about proper compensation for the dismissed workers. On October 31, Li went to Puyang City, Henan Province, where Zhongyuan Oil Field is headquartered, to learn about a lawsuit the dismissed workers are going to file in Beijing against the oil field. While there, Li was promptly administratively detained for fifteen days. He was due to be released on November 16, but the authorities instead sent him to 18 months of RTL for “gathering crowds to create trouble”.²⁶  

On August 18, to seek fair treatment for dismissed teachers, a group of Hunan teachers’ representatives knelt in front of the national flag in Tiananmen Square. Although Zhou Guanghong (周光红), also a dismissed teachers’ representative from Hunan Province, did not participate in the "kneel-in", he was punished for being the alleged leader of the representatives. On October 9, Zhou was sent to 18 months of RTL for “gathering crowds to disturb social order”. 

Arrest and imprisonment

In 2007, a number of HRDs have been arrested, detained and imprisoned on trumped-up or groundless charges. The arrests of Yang Chunlin (杨春林) and Hu Jia (胡佳) have especially highlighted the authorities’ heightened intolerance of those who direct international attention to China’s human rights abuses as the Olympics approach.

Yang Chunlin (杨春林) is a laid-off worker from Jiamusi City, Heilongjiang Province. He has been representing peasants in Fujin City, Heilongjiang, in fighting against land appropriation by the local government. Yang was detained on July 6 and on August 13 formally arrested on suspicion of "inciting subversion of state power" for collecting signatures to endorse the open letter, "We Want Human Rights, not the Olympics". While in detention, Yang is said to have been tortured and coerced to confess. On March 24, 2008, Yang was sentenced to five years’ imprisonment and two years’ deprivation of political rights for “inciting subversion of state power”.

Hu Jia (胡佳) is one of China’s most prominent HRDs. He became involved in activism as an AIDS activist in 2001. His activism soon extended to reporting and speaking out against all kinds of human rights violations across the country. Hu’s activism attracted much official retaliation and harassment. Hu and his wife, Zeng Jinyan (曾金燕), had been under "residential surveillance" (jianshi juzhu) without legal authorization since April 2004. Despite being under residential surveillance, Hu refused to be silenced, continuing to report on rights violations prior to the Games. Hu was taken from his home on December 27 and formally arrested on January 28, 2008. Hu was sentenced to three-and-a-half years’ imprisonment and one year’s deprivation of political rights for “inciting subversion of state power” on April 3, 2008.

Torture

In 2007, a number of Human Rights activists were subjected to torture, beatings or other cruel, inhuman or degrading treatment. The case of Chen Xiaoming (陈小明), a well-known Shanghai housing right activist who died of liver cancer during his 15-month incarceration, was one of the worst cases of torture in 2007. Chen was detained in February 2006 and convicted of “disrupting social order” and sentenced to two years imprisonment in January 2007. Chen had hepatitis B and during his incarceration he developed liver cancer which killed him on July 1, 2007. Chen’s cancer progressed undetected because he was denied access to appropriate medication and medical attention despite his and his family's repeated complaints about his degenerating health and severe pains. The prison’s repeated denials indicate a clear intention to punish Chen by leaving him in agonizing pain and suffering from the rapidly advancing illness. 

Yang Maodong (杨茂东,also known as Guo Feixiong (郭飞雄) was another HRD subjected to torture during incarceration in 2007. Yang, a scholar, writer, activist and legal adviser was detained in September 2006 and sentenced to five years' imprisonment and a fine of RMB 40,000 for "operating an illegal business" in November 2007. In January 2007, Guo was chained to a bed frame for forty consecutive days. In February, he was forced to sit on a “Tiger Bench”-- the torture victim is made to sit upright on a long bench, his hands tied behind his back. His thighs are fastened with a rope to the bench while his feet are raised off the floor by bricks placed under his feet. This puts extreme strain on the knees and is a very painful form of torture, especially for an extended period of time—for four hours. Also in February he was also hung up by his arms, his face, arms and genitals beaten by electric cattle prods and his face slapped several dozen times until it was swollen. On March 19, 2007 the police again beat him for about five minutes.

Disappearance

Forced disappearance of HRDs was not uncommon in 2007. For example, Yao Lifa (姚立法), a former elected representative to the NPC of Qingjiang City, Hubei Province and also a democracy activist, was forcibly disappeared for a month in October 2007.

Illegal Monitoring

Illegal monitoring of HRDs was a common practice in 2007. Many activists in Beijing and elsewhere were monitored and tailed by police during politically “sensitive” time periods such as the NPC session in March and the anniversary of the Tiananmen demonstration in June. Often HRDs were monitored without being forewarned, but sometimes they were told in advance. For example, Liu Feiyue (刘飞跃), founder of the Hubei-based human rights website, Citizens’ Rights and Livelihood Watch, was told by local police in March 2007 that he would be “closely monitored and followed round the clock for the next few months”. 

Other forms of harassment and intimidation

Summoning HRDs and threatening them is a routine practice by China’s police, and 2007 was no exception. For example, on April 13, Zhang Jianping (张建平), a petitioner and HRD who has consistently reported official persecution of petitioners on the internet, was taken away from his home in Changzhou City, Jiangsu Province and interrogated for 11 hours by the local police. The police alleged that Zhang was using the internet to “browse, distribute and incite subversion of state power.”  

On September 10, the police said Hubei HRD, Yao Lifa (姚立法), was "spreading rumors" following his interview with Radio Free Asia in which he spoke about changes in the public transport system and clashes between public bus owners and the police in Qingjiang City, Hubei Province. He was criticized for telling the outside world about these incidents in Qingjiang and for violating China's “News Law”, a law which in fact does not exist. 

Neither Zhang nor Yao was charged. Police routinely summoned HRDs to intimidate them with the intention of discouraging them from continuing with their human rights activities.  

The examples cited in this section represent only a small selection of cases and are intended to illustrate common forms of harassment and persecution experienced by HRDs in 2007. For a fuller list, please see Appendix VI.

Human rights lawyers

China’s lawyers still lack truly independent professional associations to protect and support their work. Although there are more independent-minded committees within government-organized lawyers associations, officials often interfere with the work of these committees. For example, the Beijing Lawyers Association had a “Professional Committee on Constitutional and Human Rights Law.” Lawyers serving on the committee, including several young lawyers who had defended human rights activists in “sensitive” cases, met regularly to discuss cases or initiatives involving human rights or public interest and coordinate their activities. In July 2007, the Bureau of Judicial and Legal Management ordered the association to abolish the committee and replace it with two other committees, “Professional Committee on Charitable Legal Services” and “Professional Committee on the Study of the Constitution.” Membership in these two committees was subjected to new standards of qualification determined by the authorities.  

Lawyers who often took human rights cases or who provided professional legal assistance to victims of rights violation were targeted for disappearance, beating, harassment, monitoring, and intimidation, and some were barred from practicing law. These acts of government seriously undermined the independence, personal freedom and safety required by lawyers to practice their profession properly. In this section, CHRD documents some of these cases.

Disappearance

Gao Zhisheng (高智晟): Formerly a lawyer and director of the Beijing Shengzhi Law Firm, which had its license suspended by the Beijing Bureau of Judiciary Affairs in November 2005, Gao represented defendants who were persecuted for activities associated with the banned sect, Falun Gong, and unofficial Christian house churches. Gao was also outspoken in the overseas media about rights violations.  

Gao was “disappeared” on September 22, 2007. It is believed that Gao was taken away by police officers from the State Security Bureau and the National Security Unit of Beijing PSB. In the evening of October 28, Gao called Beijing-based activist, Hu Jia (胡佳), but nobody else has heard from him since his disappearance.   

Gao disappeared while on parole for “inciting subversion of state power”, a “crime” he was convicted of on December 22, 2006. Days before his disappearance, he wrote to the US Congress urging members to focus on China's human rights before the Olympics. Gao was “disappeared” for four months in 2006 before he was tried and convicted of the crime.  

Torture and Beating

Li Heping (李和平) practices law at the Gaobo Longhua Law Firm in Beijing and has defended people persecuted for Christian family church activities, members of the Falun Gong, victims of forced eviction, and independent writers.   

On September 29, 2007, Li was abducted by unidentified men, believed to be police from the National Security Unit of the Beijing PSB, outside of his law firm. The men put a hood on his head, dragged him into a car and took him to an unknown location where he was beaten with electric cattle prods for hours. While torturing him, the men shouted, "Will you leave Beijing? Get out of Beijing! Otherwise, we'll beat you whenever we see you." Several days before the attack, police from the Beijing PSB's National Security Unit had verbally ordered Li and his family to leave Beijing. Li refused. The police had since then ostentatiously followed and monitored him. 

The police have never acknowledged responsibility for Li’s kidnapping and assault. The kidnappers were never held accountable for their illegal act. After his release, Li continued to be harassed and followed round the clock by Beijing police. 

Yang Zaixin (杨在新) is a Guangxi-based lawyer known for his work helping villagers defending land rights in Sanshan Village, Guangdong Province and in providing legal aid to Chen Guangcheng (陈光诚), an imprisoned HRD.   

On April 9, Yang was barred from leaving his residential compound by security guards who called a group of unidentified individuals to beat him. Yang sustained injuries to his head, ears, chest and legs.  

Barred from practice

The most common means used by authorities to prevent lawyers from representing clients in “sensitive” cases involving human rights-- such as cases concerning freedom of religion and of expression-- was to pressure law firms not to hire the “problematic” lawyers and to refuse to recommend them for annual renewal of their licenses to the Bureau of Judiciary Affairs.  

In recent years, a number of human rights lawyers have been deprived of their licenses to practice law, including Henan lawyers, Li Wusi (李午祀) and Li Subin (李苏滨); Shanghai lawyers, Zheng Enchong (郑恩宠) and Guo Guoting (郭国汀); Beijing lawyer, Gao Zhisheng (高智晟); and Guangdong lawyers, Tang Jingling (唐荆陵), Guo Yan (郭艳) and Yang Zaixin (扬在新). In 2007, at least two more lawyers had their licenses revoked.  

Zhang Jiankang (张鉴康) is best known for acting as defense lawyer for villagers prosecuted for defending land rights in Sanshan Village, Guangdong Province, in retaliation for which his license was temporarily suspended in November 2006. On March 28, 2007, Zhang’s law firm, Shanxi Diyi Law Firm, decided against paying Zhang’s annual membership fee to the local Lawyers’ Association, which meant that Zhang could lose his license to practice law. The firm claims that the authorities have pressured it by insinuating that if they did not comply, their firm might be closed. 

Li Jiangqiang (李建强) has represented writers, journalists, and organizers of opposition parties in recent years, including the writer, Yang Tianshui (杨天水); poet, Li Hong (力虹); activist/artist, Yan Zhengxue (严正学); and dissident, Chi Jianwei (池建伟). In June, the Shandong Provincial Bureau of Judiciary Affairs rejected Li Jianqiang’s application to renew his license to practice law without giving any reasons.  

Harassment and Monitoring

Zheng Enchong (郑恩宠) was formerly a lawyer who provided legal assistance to victims of forced evictions and housing activists in Shanghai. For these activities, he was imprisoned for three years for “leaking state secrets”. Zheng was released in 2006, but he could no longer practice as a lawyer because, according to Chinese law, once convicted of any crime, a lawyer cannot return to the profession. Though he lost his license, Zheng continued to provide legal consultation to victims of housing property rights abuses.  

Since his release, he remains under close police surveillance and his contact with the media and supporters is obstructed by police. On July 24, 2007, he tried to attend the trial of a Shanghai real estate tycoon who was involved in illegal dealings of properties and the forced eviction of many Shanghai residents, but was barred from leaving his home, roughly handled and briefly detained by the police. On July 29, after the Shanghai PSB police forcibly barred him from attending Sunday church service, Zheng went on a 14-hour hunger strike. On November 8 and 25, Zheng was interrogated for seven hours by the Shanghai police and was warned not to speak with foreign journalists about a corruption case in Shanghai. 

Part IV. Tools of Persecution: An Analysis of the Laws and Institutions

The persecution of HRDs has been systematic, carried out by a centralized state employing such organs as the National Security Unit (under the Ministry of Public Security), the State Security Unit, the CCP Committee on Politics and Law—which controls the Procuratorate and the courts—, and a variety of detention facilities including detention centers, prisons, RTL camps and illegal detention facilities.  

The sections below analyze the extra-legal nature of RTL and “black jails”, two types of detention facilities frequently used to incarcerate HRDs. The crime of “inciting subversion of state power”, clearly used in 2007 for the purpose of persecuting and imprisoning HRDs, and the newly-amended Lawyers Law, which threatens to punish human rights lawyers, will also be examined. Detention facilities and legal regulations were not the only means the authorities used to punish HRDs. They are highlighted here because they have continued to play a major role in the persecution of HRDs in 2007 and because of their illegality and unconstitutionality.

1. Re-education through Labor

In 2007, the extra-legal detention system, RTL, remains a major tool of state punishment and retaliation against dissent and activism. RTL is an administrative measure. It occurs outside of any judicial process and is “administered” directly and arbitrarily by law enforcement officials.  Without access to legal counsel or judicial trial, individuals can be detained for a maximum of four years.

It is estimated that about 3.5 million individuals have been sent to RTL camps since it came into existence in 1957.²⁷ RTL has been used widely to persecute political dissidents because of the ease and speed with which it can be used by law enforcement officials to punish individuals without any judicial procedures. In recent years, RTL has been widely used to target petitioners, opposition party organizers, human rights activists, Falun Gong practitioners and members of house churches.²⁸

Appendix VI contains cases of HRDs sent to RTL as documented by CHRD in 2007. In 2007, RTL was used to punish HRDs for their human rights activities. The case of Liu Jie (刘杰), a HRD from Heilongjiang Province, clearly illustrates RTL’s abusive nature. On October 8, Liu released a public letter signed by 12,150 petitioners calling on leaders at the 17th Party Congress to enact reforms to better protect human rights. Three days later, Liu was seized by Beijing police and sent back to Heilongjiang Province for detention. During her detention, Liu was charged with “gathering crowds to disturb social order” and her case was sent to the Procuratorate. However, the Procuratorate decided against prosecuting Liu due to lack of evidence. Failing to punish Liu using the criminal law system, on November 12, the authorities sent Liu to 18 months’ RTL for “instigating trouble and disturbing social order” even though there was no evidence at all to suggest that she was guilty of the “crime”.

RTL: A Legal Analysis 

RTL is clearly in contravention of international human rights law prohibiting arbitrary deprivation of liberty and guaranteeing free and fair trials, for example the International Covenant on Civil and Political Rights (ICCPR), and it is also in contravention of the Chinese Constitution: 

“Everyone has the right to liberty and security of person…. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.” (Article 9, ICCPR) 

“The freedom of person of citizens of the People's Republic of China 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 made by a public security organ. Unlawful deprivation or restriction of citizens' freedom of person by detention or other means is prohibited…” (Article 37, Chinese Constitution) 

Apart from its contravention of international human rights law and the Chinese Constitution, a second and related problem with RTL is that it has no firm legal basis in Chinese law. Article 8 of China’s Legislative Law and Article 9 of China’s Administrative Punishment Law state that punishment which deprives citizens of their personal freedom can “only be formulated into laws by the National People’s Congress and its Standing Committee.”²⁹ Since the three documents governing RTL, “Decision Regarding the Question of Re-education through Labor,” “Supplementary Regulations Regarding Re-education through Labor,” and the “Trial Methods for the Implementation of Re-education through Labor,” were formulated by either the State Council or the Ministry of Public Security, they are not “laws” because they were not promulgated by the NPCSC or the NPC.³⁰  

In addition, Article 10 of China’s Administrative Punishment Law states, “Administrative legal regulations can stipulate administrative penalties except those that restrict personal freedom.”  As an administrative penalty that deprives citizens of their personal freedom, RTL is clearly in direct conflict with the Administrative Punishment Law.

Calls for Abolishing RTL

Since the 90s, there have been calls from Chinese civil society as well as the international community to abolish RTL. In the late 90s, even establishment legal professionals and scholars began to openly call for its abolition. Some NPC representatives and CPPCC members have proposed that the NPCSC abolish RTL. In March 2007, bills calling for the abolition of RTL were again put forward during the NPC. At the same time, the “Draft Bill on the Correction of Illegal Behavior” was once again included in the NPCSC legislative plan, which means that it might be made into law at a later date.³¹

Meanwhile, civil society continued to challenge the RTL system. On December 4, 2007, 69 prominent Chinese citizens, including a number of legal scholars, submitted a petition to the NPC and the State Council requesting that they undertake a constitutional review of the RTL system, with the ultimate aim of abolishing the system.

There is indication that challenges to RTL received some recognition by judicial authorities.  Some local courts have stopped throwing out, as a matter of course, lawsuits filed against RTL decisions or RTL authorities, as was the case in the past. On October 29, 2007, Chen Chao (陈超), a villager sent to RTL in Yichuan County, Henan Province, filed an administrative lawsuit against the decision to send him to RTL by the Luoyang City RTL Committee. Chen alleged that one of the three documents governing the use of RTL is inconsistent with the Administrative Punishment Law and the Legislative Law. His lawsuit was accepted by Sigong District Court in Luoyang City. ³²

2. “Black Jails”

“Black jails” are illegal and secret detention facilities set up by local governments in Beijing and in local areas to detain petitioners for an indefinite period