Xi Jinping, General Secretary, Chinese Communist Party
No. 23, Xijiaominxiang
The People's Republic of China
Dear General Secretary Xi,
Human Rights Watch is a nongovernmental organization that monitors and reports on human rights in about 90 countries around the world. We write now on the occasion of the Fourth Plenary Meeting of the 18th Chinese Communist Party Central Committee (the Fourth Plenum) to be held on October 20-23, 2014 in Beijing.
The Plenum is expected to focus on the rule of law. While Human Rights Watch agrees that the rule of law is fundamental to good governance, the developments over the past year under your leadership have signaled deep disregard for the law as a tool for resolving grievances in an impartial manner, curbing abuse of state power, and protecting people’s human rights. Critical legal reforms have stalled despite rising public demands for justice and accountability. Following the November 2013 Plenum, the Supreme People’s Court issued new guidelines prohibiting the use of torture to coerce confessions, yet evidence of ongoing abuse in detention is easily available. Over the past year the government’s anti-corruption campaign has targeted officials of various ranks but these investigations relied on the extralegal and abusive detention system run by the Party known as “shuanggui.” At the same time, the government also used the law to prosecute independent activists who called for officials to publicly disclose their assets.
As a result, many inside and outside China are deeply skeptical that its legal system is anything other than an instrument of Party power. Yet the rising number of “mass incidents,” disputes over socioeconomic issues such a land rights and food safety, and demand for official accountability cannot be met and resolved absent a functional, independent legal system. We believe it critical that the Plenum earn public confidence in that prospect by:
- Recommending the release of those detained for exercising their rights to peaceful expression and/or denied the right to a fair trial.
In the last year and a half, Chinese authorities have detained and imprisoned dozens, if not hundreds, of activists and government critics across the country for exercising their right to peaceful expression, guaranteed by Article 35 of China’s Constitution and by international law. Many are charged with “offenses” such as "picking quarrels and provoking troubles" or “gathering crowds to disturb social order.” Under your leadership alone, there have been three major waves of detentions: one in 2013 targeting activists involved in anti-corruption advocacy of the New Citizens Movement; another around June 2014 targeting those who commemorated the 25th anniversary of the Tiananmen Massacre; and most recently ongoing detentions of over 60 activists who have demonstrated support for pro-democracy protests in Hong Kong. Many of those detained are prominent scholars or professionals known for their moderate and constructive criticism of government policies, such as scholars Xu Zhiyong and Guo Yushan as well as lawyer Pu Zhiqiang.
It is especially critical for the legal system’s credibility that the Chinese government distinguish between protected peaceful criticism and serious criminal charges such as separatism and subversion. The outrageously harsh sentence of life imprisonment for “separatism” for Ilham Tohti, a moderate scholar who has worked for years advocating for Uyghur rights and improving understanding between Hans and Uyghurs, is a prime example in which the government prosecutes as a crime peaceful speech it does not like.
Many individuals are denied the right to a fair trial because they are not given access to their lawyers. Zhang Sizhi, the lawyer for veteran journalist Gao Yu, tried to see his client following her detention in May; police told him, “There is no such person.” This was a questionable claim, given that state media had broadcast her confession on national TV a few days earlier. Police subsequently told Zhang he could not meet with her because she was “under interrogation.” In the cases of Tang Jingling, for example, authorities claimed that because he was charged with “inciting subversion,” a state security crime, he could be legally deprived of his right to see his lawyer for months. The Criminal Procedure Law now stipulates that those charged with major corruption, state security, or terrorism could be denied fundamental legal protections such as access to a lawyer. Yet police now appear to simply use these charges, even if there is no clear evidence to substantiate them, for the purpose of denying people access to lawyers. Lawyer Chang Boyang is charged with “engaging in illegal business,” yet police have denied him lawyers for months, citing unspecified “state security” concerns.
Besides denial of legal access, critics detained have also been subjected to multiple procedural violations in criminal proceedings. In the case of legal activist Guo Feixiong, the courts failed to give the lawyers sufficient advance notice of the trial date as required under Chinese law. In Uighur scholar Ilham Tohti’s case, authorities refused to give his lawyers access to copies of the indictment and of other evidence, and refused lawyers’ request for co-defendants to be tried in the same trial. Tohti’s trial was also effectively closed to the public: only a few seats were made available for his family in a courtroom otherwise packed with officials.
The denial of the right to fair trial is not unique to political activists. Legal proceedings against high-level officials such as disgraced former Politburo member and Chongqing Party secretary Bo Xilai, and former domestic security chief Zhou Yongkang, have been characterized by violations including the defendants’ detention for months outside of any formal legal process, investigation by the Party rather than judicial authorities, and the denial of access to all evidence against the defendant or freedom from coerced confession.
- Withdrawing the State Council’s June 2014 “white paper” and the National People’s Congress Standing Committee’s August 2014 electoral reform decision on Hong Kong.
The Chinese government has also placed political concerns above its legal obligations in respect of Hong Kong. In a “white paper” published by the State Council in June 2014, the Chinese government asserted “overall jurisdiction” over Hong Kong and that Hong Kong’s autonomy “is limited to the level of autonomy granted by the central leadership.” These statements signal an intent to undermine the rights and freedoms set out in the Basic Law, Hong Kong’s functional constitution, as well as the terms of the Sino-British Joint Declaration, an international treaty concluded between Britain and China in 1984 which guarantees Hong Kong “a high degree of autonomy” in all matters except in foreign affairs and defense after return to Chinese sovereignty.
In the decision made on August 31, 2014 by the National People’s Congress Standing Committee (NPCSC), the Chinese government also imposes a stringent screening mechanism that effectively bars candidates the central government dislikes from nomination for the position of Hong Kong’s top leader, the Chief Executive. That the Chinese government has labeled pro-democracy legislators and political figures who criticize the Chinese Communist Party’s policies on Hong Kong and human rights as “anti-China,” suggests an intent to discriminate against potential candidates for chief executive on the basis of their political opinions. While the decision allows all eligible voters in Hong Kong to cast ballots for approved candidates, the imposition of limitations on who may run for office that are based on political opinion, expressions, membership, or allegiance are incompatible with the International Covenant on Civil and Political Rights, which applies to Hong Kong through the Sino-British Joint Declaration, and which states that people have equal rights to vote and to stand for office.
- Abolishing all forms of arbitrary detention.
One of the most encouraging developments at the November 2013 Plenum was the decision to abolish the abusive Re-Education Through Labor (RTL) system. In doing so, the government and Party acknowledged that detention by an administrative authority – the police – violated China’s Constitution.
Yet the government has not moved to dismantle a number of other similarly abusive administrative detention systems, including Custody and Education and Drug Rehabilitation Centers, which are used to detain without trial individuals allegedly engaged in selling and buying sex and drug use. Most of the former RTL facilities have been turned into drug rehabilitation centers after RTL was formally abolished. The Chinese government also continues to allow the use of detention in internal Party investigations under “shuanggui,” as well as secret and unlawful “black jails” or “legal education classes” for petitioners run by local governments and hired security companies.
Like RTL, these systems and facilities also violate the Constitution, and should be abolished immediately. The Chinese Communist Party should commit to abolishing shuanggui and to make efforts to advocate for the abolition of all other forms of administrative and extralegal detention systems and for the closure of all such detention facilities in the Fourth Plenum.
Without these steps, it is difficult to imagine how the rule of law can become, as the Politburo has envisioned in a statement announcing the content of the Fourth Plenum, “the key” to ensure “the people's well-being, deepening reform and long-term stability.”
Human Rights Watch