Chairman, National People’s Congress
Xi Chang’an Jie
Re: Human Rights Concerns at the 2016 National People’s Congress
Dear Chairman Zhang,
We write on the occasion of the Fourth Session of the Twelfth National People’s Congress (NPC), which begins in Beijing on March 5, 2016. Human Rights Watch is a nongovernmental organization that monitors and reports on human rights in over 90 countries around the world. We have documented and advocated solutions to human rights problems in China for more than two decades.
Human Rights Watch is particularly concerned by longstanding practices and recent developments in China that undermine human rights, including protection from arbitrary arrest and detention, torture, and unfair trials, and respect for basic liberties, including freedom of expression, association, religion, and peaceful assembly.
We urge that the NPC, which is China’s highest organ of state power, use this gathering to announce an intention to pursue new laws and policies that will strengthen the human rights obligations enshrined in China’s Constitution and in international human rights law. We believe that you should publicly demonstrate an intent to reject or significantly revise recently adopted legislation that contravenes those obligations.
Since President Xi Jinping assumed power in March 2013, he and other senior government officials have stressed their commitment to the rule of law. At the same time, we continue to document systemic violations of basic human rights, including impunity for members of the security forces who torture criminal suspects; denial of detainees’ access to lawyers; politicized prosecutions of human rights lawyers and other human rights defenders; and rapidly diminishing state tolerance for peaceful criticism. These are alarming trends the NPC can help reverse, and we are encouraged by its recent willingness to advance more rights-friendly legislation, such as the 2012 Mental Health Law and 2015 Anti-Domestic Violence Law.
In particular, we urge that the NPC:
- Announce an intention to bring into conformity with international law the State Security Law, passed July 1, 2015, the Counterterrorism Law, passed December 27, 2015, and the draft Cybersecurity Law
These three laws are in tension with China’s constitutional and international legal obligations regarding human rights. The State Security Law casts peaceful public activism and criticism of the government as state security threats. The Counterterrorism Law indicates the government’s intent to establish a counterterrorism structure with enormous discretionary powers, define terrorism and terrorist activities so broadly as to include peaceful dissent or criticism of the government or the Communist Party’s ethnic and religious policies, and set up a broad digital surveillance architecture without legal or legislative control. The law would providing legal standing to ongoing human rights violations and facilitate future abuses, especially in an environment lacking basic legal protections for criminal suspects and a history of gross human rights abuses committed in the name of counterterrorism. We urge that these two laws be suspended and revised to be in conformity with the rights to freedom of expression, peaceful assembly, and to a fair trial, among others.
In an August 2015 submission to the National People’s Congress Standing Committee, Human Rights Watch urged the Chinese government to scrap provisions in the draft Cybersecurity Law that require Internet companies to practice censorship, register users’ real names, localize data, and aid government surveillance. We are concerned that the draft law, which further institutionalizes and strengthens the Chinese government’s pervasive use of censorship and broad surveillance, will limit peaceful debate.
- Reject the draft Foreign NGO Management Law
In a June 2015 letter to the NPC Standing Committee, Human Rights Watch raised five major concerns about the draft Foreign NGO Management Law, including its broad and vague limitations on foreign organizations, onerous supervisory framework, a role for the police rather than Civil Affairs authorities in monitoring the work of nongovernmental organizations (NGOs), restrictions on staffing and operations, and punishments for vaguely defined activities. If adopted, the law will severely and arbitrarily restrict the ability of civil society organizations in China to access resources from and cooperate with international organizations. In addition, it would place vague and overly broad restrictions on foreign organizations, including business associations, universities, and museums, that wish to carry out valuable activities in China.
We again urge the Chinese government to withdraw the draft of the Foreign NGO Management Law because it fails to meet basic international standards. The ability of organizations to receive and use funding for lawful activities is an integral part of the right to freedom of association, which is protected under China’s Constitution, the Universal Declaration of Human Rights, and the International Covenant on Civil and Political Rights, to which China is a signatory. Such rights should be protected regardless of the entity’s registration status, and regardless of the nature of lawful funding sources.
- Announce an intention to revise Detention Center Regulations and the Criminal Procedure Law to minimize torture in detention
Human Rights Watch research and China’s 2015 review under the Convention against Torture demonstrates the urgent need for key legal reforms to help minimize opportunities for torture and ill-treatment of suspects in detention. In order to achieve this, we recommend that the National People’s Congress:
- Draft a detention center law that transfers the power to manage detention centers from the Ministry of Public Security to the Ministry of Justice.
- Revise the Criminal Procedure Law to:
- Ensure that suspects may have lawyers present during any police questioning and interrogations;
- Stipulate suspects’ right to remain silent during questioning;
- Adopt the “fruit of the poisonous tree” doctrine with respect to the exclusionary rule;
- Ensure that anyone taken into police custody be promptly brought before a judge, normally within 48 hours of being apprehended, as is required in Hong Kong and many other jurisdictions;
- Repeal articles that allow suspects charged with terrorism, major corruption, or state security offenses to be subjected to six months of secret detention without lawyers under “designated residential surveillance”;
- Establish an independent Civilian Police Commission composed of independent members with knowledge of detention facility conditions and police practices and ensure it has adequate resources. Members should include human rights advocates, defense lawyers, and former detainees, as well as policing experts and others considered necessary for the commission’s work. Members should be protected from personal liability for acts performed in good faith.
- Revise the Criminal Law to:
- Abolish article 306, which allows prosecution of lawyers who advise a client to retract a forced confession;
- Adopt a definition of torture that fully comports with the definition of torture and “other cruel, inhuman or degrading treatment or punishment” in the Convention against Torture.
- Revise draft Charity Law to meet international standards
China’s draft Charity Law tightens restrictions on charitable organizations at a time when such organizations have sought a loosening of already excessive and unnecessary restrictions on registration and fundraising. The draft law contains vague and overbroad language that could be used to prevent these organizations from engaging in work that is wholly consistent with the right to freedom of expression. There are also procedural concerns, such as an inability of organizations to appeal an adverse ruling to an independent body or court, and a general lack of transparency and accountability regarding actions by civil affairs departments.
We urge the NPC to revise the current draft of the Charity Law to remove unnecessary or excessive restrictions on the registration and fundraising by individuals and organizations. Any restrictions should be consistent with international law, in particular the rights to freedom of association and expression.
- Ratify the International Covenant on Civil and Political Rights
Seventeen years after signing the International Covenant on Civil and Political Rights (ICCPR), the Chinese government has yet to ratify this core international human rights treaty. Member countries to the ICCPR commit to respecting fundamental rights and freedoms, which include protections against mistreatment in detention and unfair trials, and the rights to freedom of association and expression and to political freedoms. Under the Vienna Convention on the Law of Treaties, states that have signed but not ratified a treaty must not take actions that undermine the object and purpose of the treaty.
The government’s position has long been that it was working on “preparing the conditions for ratification,” but without ever committing to a timetable. In May 2004, then-Premier Wen Jiabao said that China was readying itself to ratify the ICCPR “as soon as possible.” Yet there has been little noticeable progress since that time.
Human Rights Watch urges the ratification without reservations of the ICCPR by the NPC at this session as a matter of priority. Doing so would serve as a clear sign of commitment to improving human rights protection in the country.
In its role as the guarantor of constitutional rights and international human rights law, the NPC should take forthright measures to reverse the practice of adopting laws that undermine those rights. We urge that you take clear and concrete action, and in particular commit to reforms that would strengthen the role in China of civil society – including lawyers, the media, and nongovernmental organizations – which are now under grave threat. We look forward to discussing these and other matters with you in the near future.