Kneeling Down to Stand Up: Petitioning China’s Premier

Petitioners kneel on a highway in Yunnan Province in 2010. Photo credit: Xinhua

Earlier this month, the national newspaper Legal Weekly published an essay by commentator Xie Yuhang that reflects on the phenomenon of “kneeling petitions” in light of a recent incident involving Premier Wen Jiabao.

Following a deadly September earthquake in Yunnan Province, Wen visited the epicenter in Yiliang County to inspect the damage and recovery efforts. There, his motorcade was blocked by a group of farmers seeking redress for local land seizures. Wen reportedly stopped to speak with the petitioners and promised that their concerns would be handled to their satisfaction. More than two months later (shortly after the close of the 18th Party Congress), one of the petitioners, Liang Yonglan, was abruptly taken into custody by local police and given a seven-day administrative detention for “disrupting public order.” She was released the following day after paying a 1,000 yuan bond, but soon thereafter the detention order was revoked and the county police chief dispatched to deliver an apology.

Xie’s essay follows a conventional praise-and-blame model in which the patient and generous manner displayed by China’s premier is contrasted with not only the particular attempts by Yiliang police to punish Liang but also with the more general tendency of some local officials to punish petitioners on the pretext of “abnormal petitioning.”

Aside from its rather fawning portrayal of Premier Wen, Xie’s essay accepts, rather uncritically, the value of petitioning as an institution. The system of “letters and visits,” which offers citizens a chance to protect their rights by communicating grievances to higher authorities, serves many functions in the Chinese governance system. As one of many alternative channels for dispute resolution, the petitioning system helps reduce the burden on China’s courts. In theory, it can also help to resolve disputes before they turn into violent or destructive “mass incidents.” And by channeling information about local corruption or misconduct upward through the bureaucracy, it gives senior officials an opportunity to deal with problematic cadres.

But the petitioning system is also widely seen as being overburdened and ineffective. Observers have long noted that the system tends to push petitioners towards larger and more dramatic actions in hopes of getting the attention of high officials, a tendency reflected in the popular saying: “A big disturbance leads to a big solution, a small disturbance leads to a small solution, and no disturbance leads to no solution.” And because petitioning activity tends to reflect badly on the performance of local officials, there is a natural incentive for them to use a mixture of “carrot and stick” techniques to prevent local grievances from reflecting poorly upon their chances of promotion.

In practice, the petitioning system serves more often as a way of containing grievances (rather than resolving them), in part by fostering expectations of the possibility for official intervention and remedy. If the system functioned as intended, it might not be necessary for someone like Liang Yonglan to take the drastic step of blocking the premier’s motorcade to resolve local problems. Xie may be right that kneeling petitions are designed to minimize risks of retaliation and that Liang’s “kneeling petition” (and the act of petitioning in general) reflects a degree of faith in senior leaders, but one can also read the incident more cynically as a calculated strategy designed to maximize publicity and pressure. As another commentator opined in response to a previous case of kneeling petitioner Zhang Yanhui: “good fortune wasn’t won through her humiliating kneeling but relied instead on the expanded channels for online oversight and the questioning of government brought about by the microblog era."

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Full Trust Lies Behind Kneeling Petitions
Xie Yuhang, Legal Weekly
December 4, 2012

When Premier Wen Jiabao arrived in Yiliang County, Yunnan, to inspect the damage after the September earthquake, Liang Yonglan and dozens of other local residents knelt at the village entrance to petition and present their complaints about land seizures to the premier. On November 19, Liang Yonglan was given a seven-day administrative detention by local police on what was called suspicion of disrupting public order. Afterwards, on the 20th, she was released ahead of schedule. Recently, the Zhaotong Public Security Bureau revoked the administrative detention order against Liang Yonglan, and Yiliang County Deputy Mayor and Public Security Bureau Chief Li Jiajun went to Liang Yonglan’s home to apologize.

Kneeling in petition is also a kind of petitioning. Petitioning makes many people unhappy, and thus makes the fate of petitioners rather unfortunate. If you want to petition but also minimize as much risk as possible, kneeling in petition may be a way to make the best of a bad situation.

It’s easy for petitioners to get hit with all sorts of “labels.” Certain locations have issued comprehensive regulations concerning various types of “abnormal petitioning” behavior—such as wearing clothing upon which one’s grievances are written, holding sit-ins, self-maiming, attempting suicide, carrying banners, and displaying petition documents—all of which are equated with deliberately causing trouble and are prohibited. Given this exhaustive list, as long as one petitions, it will be difficult not to “step on a landmine.” Kneeling in petition is probably the best way of avoiding punishment on pretext because it doesn’t come across as malicious or confrontational and shows respect and trust in leaders. Perhaps it’s because of this that Zhang Yanhui, a woman from Huaiyang, Henan, who knelt in petition before [her local] county party secretary, was to some extent “successful.”

But kneeling in petition before the premier is not a small matter. Even if Liang Yonglan were bolder, she wouldn’t dare kneel before the premier’s vehicle if she didn’t have a deep trust in Wen Jiabao.

The facts prove that Liang Yonglan and the others made the right judgment and their trust was not mistaken. Faced with Liang and the other farmers kneeling in petition, the premier not only got out of his car himself, [he also] shook hands with the farmers, asked them about their problems, and indicated that a satisfactory response would be given. Most importantly, it should be pointed out that in judging the nature of the kneeling petitioners’ actions, the premier said: “This is the farmer’s fundamental right and should not be obstructed.”

However, some people have different ideas. They think that blocking the premier’s motorcade obstructs the premier’s official business and “disrupts public order.” To be sure, the premier’s vehicle cannot be blocked for any old reason. A country’s highest administrative leader has many important responsibilities that most of the time cannot afford the least bit of delay. If ordinary people were to block [the premier’s] vehicle over every little matter, how could he handle larger national affairs? But [these defenders of public order] perhaps overlook the special nature of the premier’s itinerary on this occasion—the premier went to inspect Yiliang precisely in order to understand the [local] people’s situation. Even though he went on account of an earthquake, this does not mean that he can only understand the situation relating to the disaster and that other matters cannot be raised. What’s more, Liang Yonglan and the others were not completely ignorant of the “rules”: their kneeling petition only took just over two minutes of the premier’s time.

If the kneeling petition by Liang Yonglan and the others had any adverse effect, it was a loss of face for local officials. If ordinary people resort to kneeling petitions, it shows that they have major grievances—if there is local disharmony, it is because [local] officials have not governed well. That ordinary people don’t turn to local officials when they have grievances shows that they either have no way to protect their rights or do not trust local officials. This is perhaps why some local officials are particularly unwelcoming towards petitioning. In some places, local officials even take repressive measures against petitioners, mobilizing public power to strike back against petitioners on all sorts of pretexts in an effort to “kill a chicken to warn the monkeys.”

Actually, it’s extremely unwise to try to eliminate petitioning through repression. Repression carries extremely high costs. Whether it’s enacting all sorts of rules against petitioners so that they will be punished at the slightest move or tracking and intercepting petitioners … all of these require huge investments of human and material resources. Moreover, even if these prevention measures are stronger, it’s hard to avoid loopholes. One ought to realize that if ordinary people have grievances, there must be some way to resolve them. Either officials keep rights-protection channels open in the localities they govern so that ordinary people’s rights get sufficient relief, or ordinary people will petition—petitioning is a good thing, because it shows that [people] believe in the government and believe in the ability of the vertical oversight system to resolve problems.

Different attitudes toward petitioning will result in different outcomes. Being generous like the premier and showing a bit more tolerance, more understanding, and, when possible, more patience will not only help to resolve conflicts in a timely manner and preserve social harmony but also help to garner positive credibility and win the respect and trust of average people. [Acting] conversely may add insult to injury, allowing the situation to continue to get worse, and as was the case among some people in Yiliang County, infringing upon the rights and interests of petitioners will only make one more reactive.

The Zhaotong Public Security Bureau’s revocation of the administrative detention order against Liang Yonglan and the Yiliang County Public Security Bureau’s personal apology have already rejected the methods earlier applied by certain people. This acknowledgement of fault and willingness to change has earned much praise. But a more ideal situation would be to avoid making mistakes as much as possible, especially mistakes that could have been avoided in the first place.

Can China’s Legal Reform Survive Without Judicial Independence?

Experts at a conference on legal reform earlier this month. Clockwise from top left: Hu Yunteng, Supreme People's Court Research Office; Xie Pengcheng, Supreme People's Procuratorate Institute of Procuratorial Theory; Tian Wenchang, All-China Lawyers’ Association; former lawyer Li Zhuang; lawyer Mao Lixin; Xu Xin, Beijing Institute of Technology Law School. Photo credits: Sina

Since last month’s installation of Xi Jinping and Li Keqiang at the head of the Chinese Communist Party, there has been much speculation about whether China is about to embark on a new round of reforms and, if so, whether it might alter the political system. In the near term, the odds of political reform are not high, but gradual changes to the legal system are more likely. The most immediate changes will probably result from revisions to the criminal and civil procedure codes that are set to take effect on January 1, 2013.

If recent history is any guide, it is very likely that any substantial reforms to China’s legal system (for example, changes in the system of reeducation through labor) will have to wait until 2014—after Communist Party leaders approve the new legal reform agenda expected to be drawn up by the Central Politico-Legal Commission and submitted for approval toward the end of next year.

Legal-system (or judicial) reform was the subject of a recent conference in Beijing, according to a report published in The Mirror (a Beijing evening paper with a focus on legal affairs). Although the article’s headline focuses on the “revolutionary” system of guiding cases, many conference participants quoted in the article express a degree of impatience with the limited nature of legal reform thus far, and a conviction that establishing a system of judicial independence is essential to the fair and authoritative administration of justice. Pointing to corruption in Russia’s Western-styled judicial system, however, others note that China’s socio-economic realities call into question whether judicial independence is currently feasible.

One is left with the sense that China faces a dilemma that is difficult to resolve: an urgent need to improve the capacity and quality of its legal system in an environment with political, economic, and social factors that restrict the speed and scope of change. Some have even gone so far as to identify this problem as a trap that can only be escaped by instituting political reform—the very thing legal reform is intended to forestall.

Such pessimism is of course inappropriate for the pages of a Chinese newspaper, which may explain why the initial focus is on concrete systemic reforms that have the potential for genuine improvement and why the piece ends with a comment—very likely stripped of its larger context—by former lawyer Li Zhuang, saying that the “spring [of Chinese judicial reform] has truly arrived.” Expectations are high, which means there could be repercussions if this new dawn doesn’t materialize soon.

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Building a Guiding Precedents System with Chinese Characteristics
Wang Hong, The Mirror
December 7, 2012

Supreme People’s Court (SPC) judge discusses judicial reform, speaks of plans to set up independent procedure to ensure sentencing precision; citizens can recommend outstanding precedents to courts

The [political] report of the 18th Party Congress mentioned ruling the country in accordance with the law and delivered a new message about “using legal-system thinking to resolve social problems,” all of which has given great encouragement to all segments of society. Some say that the third wave of Chinese reform has already begun, with judicial reform as an important component.

Recently, the Public Policy Research Center at China University of Political Science and Law held a conference on the subject of “The Characteristics of Chinese Judicial Reform,” attended by many authoritative experts, scholars, and lawyers in related fields. Everyone is hoping for the springtime of judicial reform to arrive.

Keyword: Institutional Reform

For a long time China has not given enough attention to sentencing, and in a past era when consciousness about human-rights protection was not strong, it did not matter much if some were punished more heavily and others more lightly.

Reform of sentencing standards began two years ago to address the problems of over-broad sentencing ranges and judges with too much discretion.

Setting up an Independent Sentencing Process

According to Hu Yunteng, director of the SPC Research Office, for a long time in China the sentencing and conviction processes were not separate, not enough attention was paid to sentencing, and there were instances of unequal sentencing.

In a past era in which consciousness about human-rights protection was not strong, it did not matter much if some were punished more heavily and others more lightly. These days, following the increase in human-rights consciousness, freedom is considered increasingly precious and a sentence that is excessive or insufficient by even one day has an impact on the fair administration of justice.

Starting two years ago, China began studying reform of sentencing standards with an eye towards building a relatively independent sentencing process that would, to a degree, separate sentencing from criminal adjudication and allow the prosecution and defense to debate not only the issue of guilt but also the issue of sentencing.

One important result of this reform has been to give finer gradation to sentencing ranges and refine the circumstances under the criminal law in which heavier punishment, more lenient punishment, mitigated punishment, and exemption from punishment [may be imposed], all in an effort to overcome the problems of relatively over-broad sentencing ranges and judges with too much discretion.

Let Outstanding Precedents “Speak”

Director Hu Yunteng says that, in the past, we were always very careful about the way we used [earlier] cases lest it turn into a Western precedent system. In fact, courts nationwide adjudicate millions of cases annually, an extraordinarily valuable judicial resource that encapsulates the collective wisdom of judges, lawyers, prosecutors, and litigants.

After a long period of study, the SPC decided to set up a system of guiding cases with Chinese characteristics, which was formally established in 2010. The SPC has already issued three sets of guiding cases and will soon issue the fourth set.

This Chinese-style system of guiding cases is different from those found in the West. In the West, any case [in which the verdict] has been announced automatically becomes a precedent, but guiding cases in China are all carefully selected by the SPC. The selection of cases involves an extremely strict recommendation process.

A court at any level that believes a case it has adjudicated can serve as a guiding case may recommend it to the adjudication committee of the court at the next-higher level. Cases must move up the recommendation ladder by passing through the adjudication committees of courts at each level.

Citizens who find that a particular case may serve as a guiding case may recommend it to the adjudication committee of the court that adjudicated the case in final instance.

Furthermore, guiding cases must be re-written and the key points of the decision must be approved by the SPC adjudication committee. An individual case may have many highlights, but the ultimate number of confirmed guidance points is usually between one and three, [ensuring that] the scope of guidance is not unlimited or random. Allowing each court, scholar, or lawyer to give [their opinions about a case] in an unstructured way might prevent the case from fulfilling its guiding function.

Courts should consult guiding cases when the case they are trying is similar, but “similar” refers to the essential similarity of the legal issues being contested in the case and not similarity in terms of subject, amount, or the plaintiff or defendant. If a defense lawyer recommends a certain case be consulted, the judge should respond. If a judge ought to consult a guiding case but fails do so without explaining the reason, that case could be remanded for retrial or the verdict changed.

Keyword: Judicial Openness

Experts and scholars all believe that after the 18th Party Congress the next steps in judicial reform will revolve around raising the level of trust in the administration of justice. One of the key links in this is to increase the openness of the judicial system. The current system of judicial openness merely rests on “open hearings,” and there is not enough openness in some of the other aspects [of the judicial process].

Let the Public Participate in Judicial Reform

Director Hu Yunteng observed that many countries worldwide are carrying out judicial reforms, including Japan, Vietnam, and many developed countries. Judicial reform in China is [part of] the development and perfection of a socialist system with Chinese characteristics and must resolve the many problems that currently affect social justice.

The process of China’s judicial reform is not a closed-door process but rather one in which the public should participate and one that should absorb opinions from all sectors of society. The effectiveness of reform should be judged by the public. The goal of China’s judicial reforms is the establishment of a judicial system that is fair, highly efficient, and authoritative.

Mao Lixin, a law Ph.D. and lawyer with the Beijing Shangquan Law Firm, believes that the essence and basic function of the administration of justice is to resolve conflicts, something that requires fairness while at the same time emphasizing efficiency. “Fairness and efficiency” are two major themes in the administration of justice.

However, China currently has a low degree of judicial efficiency. There are 210,000 judges in China, ranking number one worldwide. Its ratio of 19.7 judges for every 100,000 people is higher than in the United States, but its judicial output is actually very low. According to statistics, last year the average number of cases handled per judge was only 57.

In the United States, a judge handles at least 1,000 to 2,000 cases per year; in South Korea the average judge handles more than 700 cases. But in China, many simple cases remain undecided even after several years.

Keyword: Judicial Independence

Many experts and scholars believe that the biggest problem facing China’s current administration of justice is insufficient trust in the judicial system. Abusing power to control the law and interference in the administration of justice are very apparent in some locations, and the key to solving this problem rests on the need to ensure that judicial bodies exercise their judicial power independently.

Stop Power from Kidnapping Justice

Professor Xu Xin of the Beijing Institute of Technology School of Law says that in the past several years the great majority of judicial reforms involved minor revisions and fixes without touching the core of the legal system, and that some of these revisions were even expedient. For example, the system of guiding cases is a revolutionary reform, but it is very difficult to implement. He hopes that the SPC will set up a precedent database and make all precedents public so that everyone may supervise, consult, and compare.

As a next step, China must reaffirm judicial independence, because that is a bottom-line issue. If no one dares speak of judicial independence more than 30 years since opening and reform, then there is no point in discussing judicial reform. Judicial independence is the most fundamental condition for realizing fairness in the administration of justice, without any distinction between East and West. Socialist judicial independence can surpass capitalist judicial independence.

Lawyer Tian Wenchang observes that in many cases judges and courts face control, interference, and even kidnapping [in a figurative sense] at the hands of all sorts of power, a situation that must be eliminated. If [the problem of] judicial independence is not resolved, judicial reform is just empty rhetoric.

Independence of Judicial Officers is Prerequisite

Xie Pengcheng, deputy director of the Institute of Procuratorial Theory at the Supreme People’s Procuratorate, noted that the [political] reports of the 13th through 18th party congresses all contained similar language about “ensuring that judicial bodies exercise judicial power independently and fairly in accordance with the law.” This shows above all that the problem of guaranteeing that judicial bodies exercise judicial power independently and fairly in accordance with the law requires further attention.

The basic goal for future judicial reform is: guaranteeing judicial independence. To this day, there is no country that has fair and authoritative administration of justice without judicial independence.

Where is the fulcrum for future judicial reform in China? It is the establishment and protection of independence for judicial officers.

When relevant international covenants mention judicial independence, they are firstly referring to the independence of judicial officers. However, judicial independence in China means the independence of courts and procuratorates, without recognition of independent judges and procurators. This is the basic reason China cannot truly realize judicial independence.

Establish a High-Quality Corps of Judges

In response to the question of judicial independence, Hu Yunteng says frankly that judicial independence and judicial democratization must conform to our current social realities.

Russia is a classic example of a judicial system transplanted from Western countries: constitutional court, separation of powers, and judicial independence. But fewer than one third of Russians are satisfied with their judicial system, particularly [because of] judicial corruption.

If overall social conditions have not been met and judicial personnel have not achieved [a certain level of] quality, giving judges power will result in serious consequences.

There are currently a number of problems in which the SPC can intervene, and we have some institutions that promote judicial fairness. The fact that many people do not obey the judicial system at present is not because they do not take judges seriously; it is because the law itself has no authority.

Keyword: Lawyer Participation

In the “Li Zhuang incident,” the defendant made accusations against his lawyer in order to save his own life. This fundamentally subverts the foundations of the institution of lawyers.

No Judicial Reform Without Lawyers’ Participation

Tian Wenchang, chair of the All-China Lawyers’ Association Criminal Law Profession Committee, believes that judicial reform cannot occur without the participation of lawyers. In the “Li Zhuang incident,” the defendant made accusations against his lawyer in order to save his own life. This fundamentally subverts the foundations of the institution of lawyers.

There are two very basic foundations to the institution of lawyers: the first is attorney-client privilege and the second is the litigant’s “principle of lawyer protection.”

Several years ago, when the Lawyers Law was being enacted, there were many years of debate about attorney-client privilege. At the beginning, the majority view was that lawyers should be responsible to the law rather than to their clients and that lawyers should reveal and report illegal criminal behavior by their clients when they discover it.

After several years of hard work, attorney-client privilege was finally written into the Lawyers Law. In other countries, lawyers, doctors, and priests are all statutorily exempted from the obligation to give evidence.

But unfortunately the “principle of lawyer protection” has never been established. If a defendant can report on a lawyer in exchange for lighter treatment, what lawyer would dare tell the truth?

Sidelight

“Current Well-Known Non-Lawyer” Li Zhuang: “Spring is Here for the Judicial System”

The afternoon discussion on December 1 was the first open-door academic conference that Li Zhuang attended since his release from prison. The discussion chair’s introduction of him was clever: former non-well-known lawyer, current well-known non-lawyer.

As guest discussant, he stood and spoke last for about 15 minutes. Li Zhuang said that he read the Criminal Procedure Law many times while in prison and [observed] many loopholes therein.

He believes that the bottleneck in judicial reform lies in the lack of independence for judicial officers. If people are not independent, independence will be difficult to achieve even with more funding. And then there are the huge differences in sentencing, in which two cases with nearly the same circumstances result in very different judgments. This reveals the arbitrariness in the administration of justice.

Li Zhuang says that China has discussed judicial reform for more than 20 years, but he has only heard the footsteps on the staircase without seeing anyone come down the stairs. This time, however, spring has truly arrived for the administration of justice in China!

China’s “Almighty God” Rises with Threat of Apocalypse

People in Gansu Province carry a banner warning that Almighty God is coming to save believers and destroy the people and nations that resist, December 11, 2012. Photo credit: gscn.com.cn

All across the world, people have been anxiously awaiting the arrival of December 21, 2012, a date some believe has been prophesied to mark the end of the world. China has apparently not been immune from these rumors, and a recent report from Shaanxi Province suggests that authorities there are engaged in a serious crackdown against a persistent “cult” organization that has been using the doomsday rumors to recruit new members.

For several decades, authorities in China have been trying to eliminate a quasi-Christian group that calls itself the “Church of the Almighty God.” Known also as the “Real God” church or “Eastern Lightning,” this group believes that divine revelation has identified a “female Christ” who will reign over a new age in which humankind will be judged and only believers will survive. The group apparently has an extensive organization both inside and outside China and has reportedly been involved in a number of violent attacks on Christian house church organizations. In 2001, Time magazine published a short profile of the organization describing some of these allegations.

Translated below, the recent report out of Shaanxi does not offer much detail on the group’s latest activities. (According to China Digital Times, propaganda officials have put Chinese media under strict orders not to report on recent cult activities.) It does, however, provide a useful view of how Chinese authorities define “cults” and perceive their various social harms.

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“Almighty God” Cult Appears in Shaanxi, Incites Believers to Wage Decisive Battle against Party
Chinese Business View
December 14, 2012

Recently in some places in our province, members of the “Almighty God” cult have been taking advantage of the “2012 end-of-the-world prophecy” to gather illegally and disseminate propaganda in the streets to spread the end-of-the-world rumor and claim that “only believers will be saved.”

Also Known as “Eastern Lightning,” “Real God”

This reporter has learned that the “Almighty God” cult is also called “Eastern Lightning” and “Real God.” Its doctrines are selections and perversions from the Christian Bible, [and the group] mainly exploits the name of “Christianity” to conduct illegal activities. The State Religious Affairs Bureau first made a note of its cult nature long ago and banned the group in accordance with the law; [the bureau] is now striking hard against [Almighty God].

This organization originated as an offshoot of the “Shouters,” a cult which entered our country from the United States in the late 1970s. Its founder, Zhao Weishan, was a core member of the “Shouters” who left to set up his own group because of disagreements with fellow members. “Almighty God” carries the banner of Christianity and disseminates absurd, illegal cult teachings adapted from Christianity such as The Word Appears in the Flesh; Lightning from the East; Almighty God, How Great You Are (also known as Sing a New Song with the Lamb); Christ’s Words (also known as Judgment Begins with the Family of God); Works of the Spirit; Kingdom of Praise; Hymns of Truth; and New Songs.

This group teaches that the “Age of Law” ruled over by Jehovah and the “Age of Grace” ruled over by Jesus have both passed and that the “Age of the Kingdom” ruled over by “Almighty God” is approaching. [It teaches that] God took human form a second time as an Eastern woman and descended to China to pass judgment on humankind. It claims that “the end of the world is approaching” and that only those who believe in “Almighty God” can be saved, whereas all who reject and do not believe will be killed by “lightning.” It says slanderously that “present-day China is a great imperial family in decline that is dominated by a great red dragon (i.e., the Communist Party)” and incites followers to launch a decisive battle against the “great red dragon” under God’s leadership and “to destroy the great red dragon and establish the Kingdom of the Almighty God.”

Striking Hard against Its Destructive Activities

“Almighty God,” which originated in Henan in the 1990s and spread to many provinces, is a cult with political overtones.

There have been instances of the cult’s money-making scams in many places throughout the country, bringing great harm to more than a few members of the public who were “lured” by the cult into joining. The cult even encourages its members to leave their homes, devoting their body, soul, and property to the church leader. This has led to the shattering of many formerly prosperous and happy families and compounded the problems of many families that were already poor and suffering.

The spread of this cult has seriously interfered with the normal religious beliefs of some members of the public in our province and has disrupted the order of people’s work and daily life. It has deceptively attracted [members of the] public who do not understand the true situation, led to disharmony in many families, and caused great social harm. As December 21, 2012, approaches, the destructive activities of “Eastern Lightning” groups everywhere may grow even more apparent and virulent. The relevant authorities are presently striking hard [against them] and remind the public to resolutely resist.

Readers who discover illegal or criminal activities of the “Almighty God” [cult] are requested to report them to police immediately by phoning 110 and to assist the public security authorities in combating and punishing [the group].

Operation Style of the “Almighty God” Cult

Beginning in the 1990s, “Eastern Lightning” (also known as “Almighty God”) spread northward from Henan. In 1998 it spread to places including Yan’an and Yulin, and in 2004 it reached the region of Inner Mongolia and Shanxi, making pervasive inroads towards Xinjiang, Ningxia, Gansu, and other areas. The group’s internal organizational structure is extremely tight and its ability to resist detection is quite strong. At the very top of its internal organizational structure is a female God, below which are priests. The churches are divided into large-area, small-area, and branch churches, with the persons responsible known as “leaders.” Proselytization is similar to a pyramid marketing scheme, employing “rolling personal networks” and one-way relationships. Once you have joined the church, you are not allowed to ask others’ names. Only pseudonyms such as “Little White Rabbit” or “Doggy” are used in communication with others. Each church member only knows the several other members of their branch church, and members rarely meet in groups exceeding seven. New members are known as “newcomers.” Those who have been discovered by the public security authority or government agencies are said to have “left the surroundings,” and either don’t talk or talk nonsense [to those who discovered them]. Proselytizers are typically not allowed to carry any means of communication and, when they need to make contact, make varied use of local pay-per-use telephone services to call people to meet them.

How to Identify Cults

[With respect to] Article 300 of the Criminal Law, cults are defined as “illegal organizations established in the name of religion, qigong, or other pretexts that, having deified its most important members, uses the creation and dissemination of superstition and heresies, among other means, to bewitch and deceive others, recruit and control members, and harm society.” [Note: Article 300 discusses cult-related crimes, but “cults” are not defined anywhere in the Criminal Law—Trans.]

In other words, [cults] make people miss work, neglect their fields, abandon their homes, and give up their studies to believe in “God”; claim that joining their “religion” can heal the sick and ward off calamity and serve as a refuge; spread word that the “end of the world” is coming and that only those who join their organization can be saved; deceive and coerce women into humiliation by church leaders; say that traditional religion is out of date and that one must believe in a new “God”; hold illegal and furtive gatherings where they shout, sing, and dance wildly; make people use deceptive means to get others to join; refuse to allow [people to] leave the group after joining; incite members to defy the government in the name of “God”; treat society, the government, and ordinary people as “demons”; concoct ridiculous heresies under the guise of religion and science; unscrupulously collect money through fraudulent means; and establish underground organizations and carry out illegal activities.

Three Imprisoned in Lord God Sect “Cult” Case

Youth in Pingnan County, Guangxi, participate in activities as part of a campaign to “Keep Cults Out of My House,” May 31, 2011. Source: China Communist Youth League, Pingnan County Committee

Before the Falun Gong was banned in 1999, Chinese authorities targeted a wide range of groups and individuals in an on-going “anti-superstition” campaign. Among the targets were several sects based on Christian theology whose beliefs and activities were said to constitute counterrevolution and to undermine social order. The “Lord God Sect” (主神教) is one of these groups. Founded in Hunan Province in 1993, the sect recruited thousands (at least one official source says more than 10,000) of disciples in over 22 provinces, autonomous regions, and cities before it was banned as a “cult” in 1998, and its spiritual leader, Liu Jiaguo (刘家国), was executed in 1999. Like its predecessors the “Shouters” (呼喊派) and “Established King” (被立王), the Lord God Sect features teachings and practices that many Christians find unorthodox or radical—including charismatic leaders who claim divinity and issue sacred teachings—and has been considered by Chinese authorities to be politically subversive. Before “counterrevolution” was removed from the Criminal Law in 1997, people could be charged with “organizing or using a sect to carry out counterrevolutionary activities”; while the existing Criminal Law includes an updated version of the offense in Article 300: “organizing and using a cult to undermine implementation of the law.”

Translated below is a court report regarding three defendants imprisoned this year for organizing house church activities associated with the Lord God Sect in Teng County, Guangxi Zhuang Autonomous Region. The text focuses on the “uncultured” and “wayward” nature of cults and cult members and makes no mention of political motives. All three of the defendants are women with only primary-school education. Dui Hua’s Political Prisoner Database contains information on 52 individuals who have been incarcerated in relation to the Lord God Sect, 16 of whom are still in prison and were sentenced over the last four years. In instances where the person’s sex is known (14 cases), 86 percent of them are women.

Although not representative of this case, Dui Hua has collected a number of court verdicts and official documents indicating that members of banned Protestant groups have been more likely to receive suspended sentences in recent years. Moreover, many accused of “cult” activities face administrative punishments, like reeducation through labor, rather than criminal sanctions.

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No Repentance after 15-Day Detention, Three-Year Sentence for Again Spreading Cult
By: Zhang Minghuan and Wang Li (Reported on ChinaCourt.org)
October 16, 2012

     Qin Yan, a woman from Teng County with only a primary-school education, was placed under administrative detention by the local public security authority for propagating the “Lord God Sect.” Afterwards, she failed to learn a lesson from her bitter experience and, in fact, became even more unrestrained, joining together with two other women who also only have a primary-school education, Zhang Meiling and Hu Zaiqiong, to spread the cult and organize followers to illegally gather to publically engage in cult activities. Recently, the Teng County People’s Court of the Guangxi Zhuang Autonomous Region announced its verdict in the first-instance trial of this cult case, sentencing Qin Yan, Zhang Meiling, and Hu Zaiqiong to three, two, and one year(s) in prison, respectively, for organizing and using a cult to undermine implementation of the law.

     Defendant Qin Yan is a leader and core member of the “Lord God Sect” in Teng County. In November 2009, she was once placed under administrative detention for propagating the “Lord God Sect” in Tianping Town, Teng County, but afterwards she still did not repent. Beginning in August 2011, she continued to spread the cult in Tianping Town, Teng County, and successively recruited defendants Zhang Meiling and Hu Zaiqiong to join the “Lord God Sect.” Thereafter, the three defendants went together to places including Jinji Town, Xiangqi Town, and Xinqing Town to spread the “Lord God Sect” doctrine and establish the house of Hu X in Zhong Village, Lingjing Town, as a fixed venue for illegal meetings of followers of the “Lord God Sect.” When Qin Yan and Zhang Meiling did not come to “teach,” Hu Zaiqiong arranged for followers to meet at her house to study relevant “Lord God Sect” doctrine. On April 26, 2012, as the three defendants were organizing and carrying out an illegal gathering of “Lord God Sect” followers, Teng County police officers took [the defendants] into custody at the scene and seized a large number of manuscripts of cult doctrine and related books.

     In the course of the trial, the court found that after the illegal “Lord God Sect” cult was banned in accordance with the law, the three defendants continued to illegally gather to publically engage in cult activities, undermining implementation of the law. Their actions constitute the crime of organizing and using a cult to undermine implementation of the law. In order to protect social management order and severely punish criminal activities of cult organizations, as well as in comprehensive consideration of the facts, nature, circumstances, and degree of harm in the acts of the three defendants’ crimes and their displays of repentance, etc., the court issued the above verdict in accordance with the law.

     Judge’s Commentary: The seriousness of the threat and evil nature of cults ought to arouse a high level of alert and deep reflection throughout society. In this case, the three defendants all had a primary-school education and a relatively low overall moral character. Lacking correct judgment about some things, it was easy for them to be misled by others and blindly follow the wrong path. Therefore, we must vigorously promote scientific spirit, eschew and resist cults, fully dig up cults’ spreading roots, and create a good atmosphere in which all of society advocates science, opposes cults, and works together towards harmony.

Chinese Source（原文）:  被拘留15日仍不思悔改 再次传播邪教领刑3年 作者：张明环、王莉 (中国法院网)；发布日期：2012年10月16日 http://www.chinacourt.org/article/detail/2012/10/id/607760.shtml Click on icon to expand

被拘留15日仍不思悔改 再次传播邪教领刑3年

        一名只有小学文化程度的藤县女子覃燕，因宣传“主神教”被当地公安机关行政拘留后，非但没有吸取教训痛改前非，反而更加肆无忌惮，伙同同样只有小学文化的另外两名女子张美玲、胡在琼在多地继续传播邪教，组织教徒非法聚会公开进行邪教活动。近日，广西壮族自治区藤县人民法院对这起邪教案作出一审宣判，以组织、利用邪教组织破坏法律实施罪分别判处被告人覃燕、张美玲、胡在琼有期徒刑三年、二年和一年。

        被告人覃燕是“主神教”藤县权柄和骨干人员，曾于2009年11月，在藤县天平镇因宣传“主神教”被行政拘留后，仍不思悔改，于2011年8月开始，继续在藤县天平镇传播邪教，并先后发展了被告人张美玲、胡在琼加入“主神教”。之后，三被告一起又在金鸡镇、象棋镇、新庆镇等地宣传“主神教”邪教教条，并将胡某位于岭景镇中村的房屋设为“主神教”信徒非法聚会活动的固定地点。当覃燕、张美玲没有来“授课”时，就由胡在琼组织信徒在其屋内学习“主神教”相关教条。2012年4月26日，三被告在组织信徒进行“主神教”非法聚会时，被藤县公安民警当场抓获，并扣押了大量邪教教条手抄本及相关书籍。

        法院审理认为，三被告在邪教组织“主神教”被依法取缔后，仍非法聚会公开进行邪教活动，破坏法律实施，其行为已构成了组织、利用邪教组织破坏法律实施罪。为维护社会管理秩序，严厉打击邪教组织犯罪活动，并综合考虑三被告的犯罪事实、性质、情节、行为的危害程度及悔罪表现等，法院遂依法作出上述判决。

        法官点评：邪教的危害性、邪情的严峻性应引起全社会的高度警醒和深刻反思，本案中，三被告均是小学文化程度，综合素质较低，对一些事物缺乏正确的判断，容易受人迷惑，盲目跟随而误入歧途。因此，我们要大力弘扬科学精神，远离邪教、抵制邪教，彻底铲除邪教滋生蔓延的根源，在全社会营造崇尚科学、反对邪教、共建和谐的良好氛围。

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RTL: Reporters Shed Some Light on Reform Projects

RTL detainees receive bedding donated by prison staff to get through the winter in Xi'an, November 22, 2006. Photo credit: CFP

As suggested in a number of earlier posts, there is a growing consensus about the need to reform or abolish China’s system of “reeducation through labor” (RTL). There are clear signs of high-level commitment to undertake some type of reform to this kind of administrative detention, most recently including an editorial in the Communist Party’s flagship newspaper, People’s Daily.

After a brief lull in coverage in the run-up to the 18th Party Congress, the Chinese press has given renewed attention to cases in which RTL has been used in questionable ways. Significant coverage was devoted recently to the cases of Ren Jianyu, one of several individuals from Chongqing who have challenged the RTL decisions made against them for things they posted online, and Zhao Meifu, a 54-year-old woman sent to RTL in Gansu after a visit last month to Beijing, where her son is a university student.

Although no timetable for dealing with RTL has been made public, officials announced a few months ago the launch of a pilot project in four cities—Jinan, Lanzhou, Nanjing, and Zhengzhou—to study possible reform measures. (Qingdao, not Jinan, was included in the four-city pilot announced late last year.) Anyone hoping to guess at the future shape of RTL reform based on the content of this pilot project will be disappointed, as little to no detail has been revealed so far.

Reporters from the Xiaoxiang Morning News in Changsha recently tried to get more information about the reform agenda in general and the pilot studies in particular. Their findings, albeit sparse, indicate that police authority in reviewing and approving RTL cases is being dismantled to some extent in cities where the 2011 pilots were launched. For example, Qingdao has introduced multi-department RTL management committees (which were included in the original design of the RTL system in the 1950s) to replace the public security committees that have become commonplace. In all four cities, however, newly established committees are still housed in public security offices and headed by public security chiefs. In contrast, in an independent local project in Heilongjiang, “RTL relief procedures have been freed from the confines of the public security [system].”

Despite these cosmetic changes, however, there remains a deafening silence about the incompatibility between national law and the regulations upon which RTL is based.

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RTL Reform
Legal Reform “Being Studied,” Pilot Details Still Not Released
Zhou Xifeng, Xiaoxiang Morning News
November 22, 2012

Earlier, four cities in Gansu, Shandong, Jiangsu, and Henan began carrying out pilot projects for the correctional system that is to replace the RTL system, but details of the pilots have yet to be announced.

At the same time, Chongqing, Heilongjiang, and other areas also began to carry out pilot projects and adjustments of their own, but even these “corrections” are based on provisions in relevant [existing] laws.

Xiaoxiang Morning News Reporter Zhou Xifeng, Intern Xia Pei reporting from Beijing

Reform of the RTL System, Slow Legislative Process

Criticism of RTL has been ongoing for many years, with periodic calls for RTL’s abolition or reform.

Back in February 2005, the 10th National People’s Congress (NPC) announced that the (Draft) Law on Correction for Illegal Acts (hereafter, Draft Correction Law) had been placed on that year’s legislative plan, but the legislative process has been moving slowly and this law intended to replace the RTL system has yet to be introduced.

The Draft Correction Law was drafted by the NPC Legislative Affairs Committee, which planned to submit it for a reading in April of [2005].

Compared to the RTL system, the nature, decision process, and implementation methods that were under discussion for the correction system all represented a large-scale adjustment to the RTL system.

For example, in order to address the problems of unilateral control by public security organs over the power to review and approve RTL [decisions] and the lack of effective oversight and checks, the Draft Correction Law gives individuals sanctioned with RTL an added right to defend themselves and includes a provision for persons sanctioned with RTL by public security organs to defend themselves if they do not accept the decision, and make an appeal to the courts to decide whether the RTL decision is valid. At the same time, the accused may also retain a defense lawyer and apply for a hearing.

It is easy to see that in this way the Draft Correction Law judicializes the RTL decision process and gives power over RTL decisions to the courts in hopes that this will effectively prevent the improper phenomenon of arbitrary expansion of the scope of RTL application.

Wang Gongyi participated in the discussions surrounding legislation of the Corrections Law as the then-director of the Ministry of Justice’s Judicial Research Institute. According to him, compared to the RTL system, [punishment] discussed for illegal behavior would be more reasonable and in accord with the law: “Once it is reformed, no corrections center will have iron bars on the windows or doors and humane management will be instituted.”

However, after several initial meetings, some experts who participated in the drafting began to sense opposition. The final result was a shelving of the draft, and the Draft Correction Law never got its scheduled reading in April 2005.

Similar things happened again in 2010. In March of that year, Deputy Chairman of the Legislative Affairs Committee of NPC Standing Committee, Li Fei, stated that drafting work on the Draft Correction Law had been underway for several years and that the legislation had been placed on that year’s legislative work plan: “The pace of progress will quicken, and [the legislation] has also been placed on China’s legal reform agenda.” However, that year, the draft once again failed to realize its planned hearing.

Details of Four-City Pilot Unknown to Outsiders

As the law has yet to be promulgated, the pilot projects proceed first. In November 2011, the Supreme People’s Court and nine other ministry-level bodies jointly issued a Pilot Scheme for Committees of Education and Correction for Illegal Acts, selecting Lanzhou, Gansu; Qingdao, Shandong; Nanjing, Jiangsu; and Zhengzhou, Henan, as the four cities to carry out RTL reform pilot projects.

According to the scheme, the pilot cities would establish leadership small groups [to oversee] work on the pilot scheme for committees of education and correction for illegal acts. These groups would be composed of responsible persons from institutions including the courts, procuratorates, public security, government legislative affairs offices, education bureaus, civil affairs bureaus, and justice bureaus.

However, specifics about the pilot scheme have never been announced, making it difficult for outsiders to know the details. Wang Gongyi says that because the current pilot project focuses on the review and approval phase, the Ministry of Justice has not been involved.

According to information revealed from each of the pilot cities, the offices established under the pilot leadership small groups have [not departed with current practice and have] been set up within the city public security bureaus, with a deputy public security bureau chief serving concurrently as office director.

According to information provided by the relevant departments in Qingdao, the specific work of the pilot project on RTL review and approval shifts the decision power over RTL to the Committee of Correction for Illegal Acts, which is composed of members of different professions from several agencies who discuss each case individually before making a decision.

Nanjing has also been asked to set up a Committee of Correction for Illegal Acts, which is responsible for the specific pilot work.

In Zhengzhou, however, the focus is on the power over review and approval of RTL. This is one reason why Zhengzhou has been dragging its feet about publicizing the details of its RTL reform work.

Local Zhengzhou media report that, on the question of making the RTL management committee independent from the public security authority, there are two views: one would give [authority] to a judicial body, like the courts, while the other would give [authority] to a comprehensive coordinating body, such as the comprehensive social management committees.

But neither the courts nor the comprehensive committee wants to take on this hot potato. The procedure for review and approval of RTL cases is no simpler than that for criminal cases, and the responsibility to be assumed is great.

“Cities piloting RTL reforms should issue concrete plans as soon as possible. Taking the initiative to seek suggestions and opinions from all corners of society before officially putting forward a reform proposal would give full publicity to reform of the RTL system and be a process of seeking common ground despite differences of opinion. This would go a long way toward reducing opposition to the reform proposal during the implementation period and allowing [the proposal] to do its job.” Many individuals in the legal community feel this way.

NPC delegate and lawyer Chi Susheng believes that if public security organs or local governments continue to dominate [the process], this type of pilot project would have no real significance. [She believes] that true reform should judicialize RTL and give decision authority to the courts.

Locally Initiated Reforms Have “Pioneering” Value

Chi Susheng is currently representing many cases in which people sanctioned with RTL for petitioning have applied for reconsideration or filed lawsuits. In the course of handling these cases, she has discovered minor variations in local avenues for relief. “In Heilongjiang, when we applied for reconsideration in the past the case files were all at the public security bureau and the case never left the public security [system]. Now when you apply for reconsideration you have to go before the administrative reconsideration committee of provincial-government-level departments and the case files are no longer controlled by public security but, instead, managed by the government legal affairs office.”

Chi Susheng believes that this means that RTL relief procedures have been freed from the confines of the public security [system], and that, on some level, this also serves a kind of check on the power of public security. However, according to this reporter’s understanding, this type of change is limited to self-initiated pilot projects launched in a few locations. Chi Susheng believes that [such a change] will not alter the current situation in which local government takes the leading role in RTL.

In May of this year, the Chongqing People’s Congress Standing Committee made a series of changes to local regulations. In the Chongqing Municipality Prostitution Prohibition Ordinance, it eliminated provisions allowing prostitutes and their clients to be sent to RTL. This means that Chongqing will no longer use RTL [to punish] prostitutes or those who hire them.

It is worth noting that the basis for this revision was the Legislation Law, which took effect on July 1, 2000, and the Administrative Enforcement Law, which took effect on January 1, 2012. Both of these laws state that any compulsory measures that restrict citizens’ personal freedom must be provided for through legal statute. Article 8 of the Legislation Law states that only [national] law may be enacted in respect of deprivation of the political rights of a citizen or compulsory measures and penalties involving restriction of personal freedom. Articles 9 and 10 of the Administrative Enforcement Law state that only [national] law may be enacted in respect to administrative compulsory measures involving restriction of citizens’ personal freedom.

Some experts believe that the decision by the Chongqing People’s Congress Standing Committee is a normal, legally-grounded act of revising the law. But the problem is that the Administrative Enforcement Law took effect on January 1; why was the legal conflict only corrected in May? Moreover, the Administrative Enforcement Law was passed at the 21st meeting of the 11th NPC Standing Committee on June 30, 2011. There was a six-month transition period between the [law’s] announcement and the date it took effect. This period provided all locales and all government agencies an opportunity to review the new law and, upon discovering legal conflicts, to immediately to enact [new measures] or revise or revoke [existing measures] so that once the Administrative Enforcement Law formally took effect it could be fully applied.

Legal experts believe that the Chongqing People’s Congress Standing Committee acted too slowly in “correcting” local regulations on the basis of the Administrative Enforcement Law. Even so, Chongqing’s effort to resolve the conflicts between the Administrative Enforcement Law and local regulations is still valuable for being a “pioneering” effort. Serving as the direct legal basis of the RTL system, the State Council Decision on the Issue of Reeducation through Labor, State Council Supplementary Regulations on Reeducation through Labor, and the Trial Measures on Reeducation through Labor re-issued by the State Council are also in conflict with the Administrative Enforcement Law, but so far none of these administrative regulations has been “corrected.”

Demand for RTL Reform Increases Daily from All Segments of Society

China’s RTL system originated in the 1950s. In its original design, RTL management committees made up of responsible persons from civil affairs, public security, and labor bureaus [had responsibility for] leading and managing RTL work and reviewing and approving [decisions] to send people to RTL.

But in 2002 the Ministry of Public Security introduced Regulations on the Handling of RTL Cases by Public Security Organs, [according to which] public security organs set up RTL review and approval committees to review and approve RTL cases and to carry out the functions of the RTL management committee. The daily work of these review and approval committees has also [since] been taken up by the legal affairs units of the public security authority at the same administrative level.

“Something that originally was supposed to be done together by civil affairs, public security, and labor [bureaus] is now being done by public security alone,” says Peking University Law School Professor Jiang Ming’an. This situation where “the player is also the referee” has long been the subject of public criticism.

“Although they are convenient for public security organs to use, in actual practice the procedures aren’t clear, which leads to all sorts of problems,” says one legal scholar. The mutation of the RTL system has not only turned it into a stability-maintenance tool for controlling petitioners but also become a hotbed for avoiding the risks involved in handling cases and blending interests.

In recent years, some local governments have announced [a policy] towards petitioners of “warning first, detaining second, and RTL third.” Some places have regulations that state that petitioning in key or sensitive locations in Beijing may be directly considered disrupting public order [which is punishable by RTL under current regulations].

These measures have spurred a backlash of public opinion. NPC delegate and lawyer Chi Susheng believes that it is precisely this kind of mutation of RTL’s function that has caused demands for RTL reform to increase daily from all segments of society.

In its original design, RTL was a measure for compulsory education and reform, as well as a means to arrange employment. The targets of RTL were not criminals and could not be managed as criminals, but were to be “managed as would a doctor treating a patient, a teacher treating a student, or a parent treating a child.”

Beijing lawyer Wang Fu, who spent 13 years as an RTL guard, says that the origin of the RTL system is the superstitious belief that “labor can reform a person.” Those sent to RTL facilities must take on a heavy labor load, and the original purpose of RTL has been distorted.

In the discourse of China’s judicial bodies, the targets of RTL and reform through labor were known collectively as the “two laborers.” Liu Renwen, director of the Criminal Law Research Center at China Academy of Social Science’s Institute of Law, says that the initial design of RTL made it essentially different in nature from reform through labor and the methods of implementation were also substantially different. But, in reality, “in terms of the serious degree to which they deprive people of their personal freedom, there’s currently no difference between RTL and reform through labor. RTL has become a ‘second reform through labor,’ and if a person is sent to RTL ordinary people think he’s been sent to prison.”

China Outlines Criminal Punishments for Tibetan Self-Immolations

Monestary in Aba [Ngawa] County of Sichuan Province, where many self-immolations occurred. Photo credit: sc157.com

Since February 2009, more than 90 Tibetans have reportedly set themselves on fire in protest against Chinese government policies. These self-immolations, which because of restrictions on reporting have been difficult to confirm, have largely been carried out by young Tibetan men and women in the eastern Tibetan regions that are divided between the provinces of Sichuan, Qinghai, and Gansu. Most of the protesters are known or believed to have died as a result of injuries sustained during these incidents.

The frequency of self-immolation, a form of protest that was previously unknown in Tibet, has accelerated in recent weeks. Some analysts suggest that this represents a new phase of protest, one aimed at forcing China’s new party leaders to confront grievances about tightened political control over religious institutions and policies that further weaken the cultural autonomy to which Tibetans and other ethnic groups are entitled under Chinese law.

In the face of growing protest in Tibetan and Uyghur regions in recent years, the Chinese government has held on firmly to its two-pronged effort to assimilate its western ethnic populations economically and culturally, even though many of these policies—such as relocation of nomadic herders into settled villages and “bilingual education” that places primary emphasis on Mandarin Chinese—have tended to further intensify grievances.

In an effort to curb self-immolations, local governments in Tibetan areas have also instituted a heavy security crackdown and intensified propaganda efforts aimed at demonizing protesters and the “black hands” who allegedly incite them. Both of these tactics are on display in an editorial recently published in the Gannan Daily, the newspaper published by the local party committee in Gannan [Kanlho] Tibetan Autonomous Prefecture, Gansu Province. The editorial introduces guidelines issued by China’s top judicial and law-enforcement authorities aimed directly at criminalizing a wide variety of activities related to the protests. (Three of the activities mentioned in the report are to be considered intentional homicide, as was the case for at least three people detained in Sichuan last year.) It also features classic examples of the language associated with political campaigns—language that emphasizes the treachery of “splittist” forces inside and outside China who “cloak their illegal criminal acts in religion” while “bewitching” protesters to go against the interests of the “broad masses” and undermine ethnic unity.

It is unlikely that either the criminalization of self-immolation or heavy-handed propaganda will lead to the resolution of the longstanding grievances that underlie the protests. Recent government policies appear aimed at integrating these peripheral ethnic regions more firmly into the dominant economic, social, and cultural order of China, without giving due consideration to the desires of inhabitants there. Though self-immolation may appear to some as a senseless act, for those who choose this form of protest such sacrifice may reflect the relative lack of other means to express the suffering and indignity experienced by Tibetans.

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Those Who Incite Self-Immolations Must be Severely Punished Under the Law
Gannan Daily
December 3, 2012

Gannan Daily commentator

Just as cadres and the masses of all ethnic groups in our prefecture are studying how to carry out the spirit of the 18th Party Congress by wholeheartedly seeking development and making concerted efforts in pursuit of moderate prosperity, splittist forces inside and outside our borders have bewitched and incited [people to carry out] a series of self-immolation incidents that have seriously affected the overall social situation of unity and stability in our prefecture.

So that the recent self-immolation cases that have occurred in Tibetan areas may be handled in accordance with the law and in order to ensure social stability, the Supreme People’s Court, Supreme People’s Procuratorate, and Ministry of Public Security of the People’s Republic of China (PRC) have, based on relevant laws and regulations, jointly issued an “Opinion on Handling Self-Immolation Cases in Tibetan Areas in Accordance with the Law.”

The Opinion points out that the recent self-immolations that have occurred in Tibetan areas are cases of significant evil that result from collusion between hostile forces inside and outside our borders whose attempts to use premeditated, organized plots to incite splittism, undermine ethnic unity, and seriously disrupt social order. [The cases] have seriously affected the present overall situation of ethnic unity and social stability in Tibetan areas. Those who carry out self-immolations in these cases are unlike the ordinary world-weary person who commits suicide. Their common motivation is to split the nation and they endanger public safety and social order, classifying their self-immolations as illegal criminal acts. Organizing, plotting, inciting, coercing, enticing, abetting, or assisting others to carry out self-immolations is, at its essence, a serious criminal act that intentionally deprives another of his or her life.

Tibetan Buddhism emphasizes compassion and not killing as fundamental precepts. However, those who plot self-immolations cloak their illegal criminal acts with religion and have desecrated the faith of the broad masses of believers in Tibetan Buddhism. The Opinion makes clear that those criminals who act as principal culprits behind the scenes to organize, direct, and plot [self-immolations], as well as those who actively participate in inciting, coercing, enticing, abetting, or assisting others to carry out self-immolations, will be held criminally liable for intentional homicide in accordance with the relevant provisions of the Criminal Law of the PRC and targeted for severe punishment in accordance with the law. As for self-immolators themselves, once the nature of their illegal acts has been clarified, they should be treated differently depending on specific circumstances such as the extent of their malign intentions and the degree of the harm caused by their acts. If the circumstances are serious and major harm has been caused, they should also be held legally liable in accordance with the law.

The Opinion indicates that anyone who organizes, plots, incites, coerces, entices, abets, or assists others to commit self-immolations shall be held criminally liable for intentional homicide in accordance with the Criminal Law. Anyone who actively commits self-immolation in which the circumstances are serious and that causes major harm or serious danger to society shall be held criminally liable in accordance with the law. Anyone who commits self-immolation in a public space and endangers public safety shall be held criminally liable for using dangerous methods to endanger public safety in accordance with the Criminal Law. Anyone who prepares implements or creates conditions for committing self-immolations shall be treated as if he or she were preparing to commit a crime. Anyone who commits self-immolation and, while burning, grabs hold of another person, shall be held criminally liable for intentional homicide in accordance with the Criminal Law. Anyone who commits self-immolation in a public place who does not endanger public safety but gathers many people to seriously disrupt public order or traffic order shall be held criminally liable for gathering a crowd to disrupt public order or traffic order in accordance with the Criminal Law. Anyone who, in order to commit self-immolation, illegally carries gasoline or other flammable items into a public space or onto a public transportation vehicle shall be held criminally liable for illegally carrying dangerous items that endanger public safety in accordance with the Criminal Law. Anyone who has been enticed, tricked, or coerced into committing self-immolations may be given lenient or mitigated [punishment] or exempted from criminal punishment in accordance with the law.

The Opinion further indicates that anyone who creates disturbances at the scene of a self-immolation and creates serious chaos in a public place shall be held criminally liable for creating a serious disturbance in accordance with the Criminal Law. Anyone who gathers crowds to disrupt social order, public order, or traffic order by means such as parading around with a corpse or summoning a group to gather and watch shall be held criminally liable for gathering a crowd to disrupt social order or gathering a crowd to disrupt public order or traffic order in accordance with the Criminal Law. Anyone who obstructs public security officers, medical personnel, or others from rescue efforts shall be held criminally liable for intentional homicide in accordance with the Criminal Law. Anyone who commits beating and smashing at the scene [of an immolation] or damages or steals public or private property shall be held criminally liable for robbery or intentional destruction of property in accordance with the Criminal Law. Anyone who prevents public security officers or other employees of state organs from carrying out their duties in accordance with the law, if the circumstances are rather serious, shall be held criminally liable for obstructing public service in accordance with the Criminal Law. Anyone who summons a group to mourn or collect funds for a self-immolator shall be prevented from doing so in accordance with the law; anyone who refuses to obey and gathers a crowd to disrupt social order, public order, or traffic order or who obstructs public service shall be held criminally liable in accordance with the law.

Civilized society requires rule of law, and the construction of a harmonious and beautiful society necessitates even more the safeguards of rule of law. The issuance of this Opinion is extremely necessary and extremely timely, not only because it provides a strong legal basis for handling various self-immolation cases in accordance with the law, but also because it serves as a strong deterrent for self-immolation incidents. It leads us to understand that laws are norms that every person must obey in a modern society, that absolutely no organization or individual may be allowed to operate above the law, that no one can enjoy extralegal privileges, and that all must be in awe before the law. In particular, those black hands behind the scenes who plan, direct, and incite others to commit self-immolation, [have committed] serious, illegal crimes that are extremely inhuman and they have violated human society’s most basic standards of conscience and morality. They must be subject to the law’s severe punishment and moral condemnation.

Throughout these recent years, the prefectural party committee and government have always shared joys and hardships together with the people of all ethnic groups in the prefecture, made improving livelihood and promoting the people’s well-being their fundamental goals, and continually improved the education system and extended public health and social security systems throughout urban and rural areas. Steady progress has been made toward the construction of new agricultural and pastoral villages as breakthroughs of the resettlement project, the incomes of farmers and herders have continued to increase, and the conditions of agricultural and pastoral villages have been completely improved. This has earned praise from cadres and the masses at all levels in the prefecture and received broad support from all segments of society.

Splittist sabotage does not enjoy popular support and self-immolations will not win people over. The facts prove that the fundamental interests of cadres and masses of all ethnic groups in Gannan rest on a unified nation, ethnic unity, and a harmonious and stable society and that these same conditions serve as fundamental assurance of breakthroughs to harmony and stability in pursuit of moderate prosperity and construction of a prosperous and beautiful new Gannan. Criminals who incite and bewitch with self-immolation must be brought to justice. Cadres and masses from all ethnic groups must have a deep understanding of the truth of “unity and stability lead to prosperity; splittism and rioting lead to disaster” and stand firm in drawing a clear line between [themselves and] all hostile forces and not be tricked or deceived. They must develop self-awareness of [the necessity of] upholding the good situation of ethnic unity and social stability and cherishing and protecting the good life that has not come easily.

Involuntary Commitment: Ankang Regs vs Mental Health Laws

Security monitoring inside Tianjin’s ankang hospital. Source: Tianjin Municipal Public Security Bureau Ankang Hospital

China’s new Mental Health Law, passed by the National People’s Congress Standing Committee in October and effective May 1, 2013, has been welcomed by many as a major step forward in the protection of the rights of individuals with mental illness. Of particular note are provisions requiring that patients facing involuntary commitment in psychiatric hospitals be given the opportunity for independent review of their cases and that mechanisms for appealing involuntary commitment be established.

Some remain concerned, however, about the potential for continued use of abusive psychiatric commitment against petitioners, dissidents, and others deemed to threaten China’s social or political order. This is because the new law exempts ankang hospitals from many of its provisions.

Ankang hospitals, which fall under the jurisdiction of the Ministry of Public Security, are police-run facilities intended to provide compulsory medical treatment to persons diagnosed with mental illness who have committed serious crimes but are exempted from criminal responsibility under the law. As of 2010, there were 22 ankang hospitals located in 18 Chinese provinces, and the Ministry of Public Security had lobbied for the construction of additional hospitals to meet rising needs. During their long history in China, ankang hospitals are known to have been used to treat “political maniacs” and others holding dissident views—a practice modeled on one used widely by the Soviet Union.

As a result of a new section dedicated to compulsory medical treatment that was added to the Criminal Procedure Law (CPL) in March (translated below), new restrictions will be formally imposed on police discretion to carry out involuntary psychiatric commitment. Under these provisions, which will take effect on January 1, 2013, police recommendations regarding commitment will have to go through two levels of external scrutiny: undergoing review by the procuratorate before reaching the court, which will have sole authority to make decisions on involuntary psychiatric commitment for those who have committed serious offenses but are exempt from criminal responsibility under the law.

Until now, regulation of involuntary commitment in ankang hospitals has been governed primarily by rules enacted by local government in locations where these facilities are established. As internal institutional regulations, the procedures are not clearly subject to review by procuratorates or the court. Local regulations also vary considerably in terms of their level of detail and the degree to which they protect individual rights.

Consider, for example, two sets of commitment measures from Tianjin Municipality and Xi’an, Shaanxi Province (translated below). The Tianjin regulations, enacted in 1991 and amended in 2010, are typical of rules enacted in other cities throughout China during the 1990s and lack the mechanisms of the Xi’an measures, enacted in 2011, aimed at curbing arbitrary psychiatric commitment. For example, the Xi’an measures explicitly exempt certain categories of individuals from involuntary commitment, give persons facing commitment clear rights to challenge the decisions made against them, and require ankang hospitals to carry out periodic evaluations.

Clearly, the relatively progressive Xi’an measures anticipate the more rights-protective provisions of the new CPL, which aims to limit arbitrary police authority and establish a more uniform process for involuntary psychiatric commitments carried out within the criminal justice setting. The success of these goals awaits actual enforcement. Drafts of implementation rules being considered by the Supreme People’s Court and recently passed by the Supreme People’s Procuratorate suggest a seriousness about establishing mechanisms to prevent abusive and arbitrary commitment of individuals who are healthy or who do not pose any danger to society. The Ministry of Public Security has yet to publicize its own relevant regulations, but once the revised CPL and the new public security regulations take effect, local ankang regulations will almost certainly undergo substantial updates.

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Criminal Procedure Law Excerpt: click to expand

[Criminal Procedure Law Excerpt]

Chapter 4: Procedures for Compulsory Medical Treatment of Mentally Ill Persons Excluded from Criminal Liability in Accordance with the Law

     Article 284: Where a mentally ill person commits violent acts that endanger public security or seriously endanger the personal safety of citizens and has been determined through statutory procedures to be excluded from criminal liability in accordance with the law, if he or she has the potential to continue endangering society, he or she may be subject to compulsory medical treatment.

     Article 285: According to this chapter, decisions to subject a mentally ill person to compulsory medical treatment shall be made by people’s courts.
     If a public security organ discovers that a mentally ill person meets the conditions for compulsory medical treatment, it shall make a suggestion for compulsory medical treatment in writing and submit it to the people’s procuratorate. Where the people’s procuratorate finds, either at the [suggestion] of the public security organ or during the process of pre-prosecution review, that a mentally ill person meets the conditions for compulsory medical treatment, it shall submit an application for compulsory medical treatment to the people’s court. Where the people’s court finds during the hearing of a case that a defendant meets the conditions for compulsory medical treatment, it may issue a decision to impose compulsory medical treatment.
     Where a mentally ill person has committed an act of violence, the public security organ may impose temporary, protective restrictive measures [upon that person] before the people’s court [issues] a decision on compulsory medical treatment.

     Article 286: After the people’s court accepts an application for compulsory medical treatment, it shall form a collegiate bench to review [the application].
     Where a people’s court reviews a case involving compulsory medical treatment, it shall notify the legal representative for the subject of the application or the defendant to appear in court. If the subject of the application or the defendant has not engaged legal counsel, the people’s court shall notify a legal aid agency to assign a lawyer to provide legal assistance.

     Article 287: Where, in the course of its review, the people’s court [finds that] the subject of the application or the defendant meets the conditions for compulsory medical treatment, it shall issue a decision for compulsory medical treatment within one month.
     Where the person subject to a decision for compulsory medical treatment, the victim, or their [respective] legal representatives or immediate relatives do not accept the decision for compulsory medical treatment, they may apply to the people’s court at the next higher level for reconsideration.

     Article 288: Facilities for compulsory medical treatment shall periodically carry out diagnostic evaluations of persons receiving compulsory medical treatment. Where there is no longer any risk to personal safety and it is no longer necessary to continue compulsory medical treatment, a facility shall promptly recommend revocation and report to the people’s court that made the decision on compulsory medical treatment for approval.
     Persons receiving compulsory medical treatment and their immediate relatives have the right to apply for revocation of [said] treatment.

     Article 289: People’s procuratorates shall oversee decisions on and enforcement of compulsory medical treatment.

Chinese Source（原文）:  [刑事诉讼法摘选] http://www.china.com.cn/policy/txt/2012-03/18/content_24922812_28.htm Click on icon to expand

[刑事诉讼法摘选]

第四章 依法不负刑事责任的精神病人的强制医疗程序

        第二百八十四条 实施暴力行为,危害公共安全或者严重危害公民人身安全,经法定程序鉴定依法不负刑事责任的精神病人,有继续危害社会可能的,可以予以强制医疗。

        第二百八十五条 根据本章规定对精神病人强制医疗的,由人民法院决定。
        公安机关发现精神病人符合强制医疗条件的，应当写出强制医疗意见书,移送人民检察院。对于公安机关移送的或者在审查起诉过程中发现的精神病人符合强制医疗条件的,人民检察院应当向人民法院提出强制医疗的申请。人民法院在审理案件过程中发现被告人符合强制医疗条件的,可以作出强制医疗的决定。
        对实施暴力行为的精神病人,在人民法院决定强制医疗前,公安机关可以采取临时的保护性约束措施。

        第二百八十六条 人民法院受理强制医疗的申请后,应当组成合议庭进行审理。
        人民法院审理强制医疗案件,应当通知被申请人或者被告人的法定代理人到场。被申请人或者被告人没有委托诉讼代理人的,人民法院应当通知法律援助机构指派律师为其提供法律帮助。

        第二百八十七条 人民法院经审理,对于被申请人或者被告人符合强制医疗条件的,应当在一个月以内作出强制医疗的决定。
        被决定强制医疗的人、被害人及其法定代理人、近亲属对强制医疗决定不服的,可以向上一级人民法院申请复议。

        第二百八十八条 强制医疗机构应当定期对被强制医疗的人进行诊断评估。对于已不具有人身危险性,不需要继续强制医疗,应当及时提出解除意见,报决定强制医疗的人民法院批准。
        被强制医疗的人及其近亲属有权申请解除强制医疗。

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Tianjin Measures [1991] No. 47: click to expand

Tianjin Measures for Commitment, Treatment, and Management of Mentally Ill Persons Who Endanger Social Order

[Tianjin] People’s Government Order (1991) No. 47

(Approved by the [Tianjin] People’s Government on December 8, 1991, and amended in accordance with the Decision on Amending Certain Municipal Government Regulations passed at the 59th Standing Committee meeting of the [Tianjin] People’s Government on November 8, 2010.)

     Article 1: In order to strengthen protective custody, management, and treatment of mentally ill persons who endanger social order; to protect social order; to safeguard the lives, property, and safety of the people; and protect the lawful rights and interests of mentally ill persons; these measures are hereby enacted in accordance with the relevant national regulations and in combination with the actual circumstances in this municipality.

     Article 2: Any mentally ill person who carries out one of the following acts, whether he or she is from this city or an outsider who has come to this city, shall be compulsorily committed for treatment by the municipal public security bureau’s ankang hospital:

1. Murder, arson, rape, setting explosions, or other acts;
2. Serious disruption of official work order at party, government, or military organs [or] of the production or work order of enterprises;
3. Serious disruption of public order or endangering of public safety;
4. Other [acts] that affect social stability and cause serious consequences;
5. Having once committed one of the aforementioned acts, again showing an obvious onset of symptoms after release [from compulsory treatment] following remission of symptoms.

     Article 3: The ankang hospital of the municipal public security bureau is the institution of the municipality dedicated to compulsory commitment for treatment of mentally ill persons who endanger social order. It has the dual functions of public order management and treatment under protective custody.
     The ankang hospital provides admitted mentally ill persons with compulsory treatment under protective custody according to the principles of: management in accordance with the law, scientific treatment, integrated governance, and service on behalf of social order and the patient.

     Article 4: Where it is necessary to place a mentally ill person covered under Article 2 of these measures under compulsory commitment for treatment, the branch (county) public security bureau shall report the case and, following arrangement of a mental illness forensic medical evaluation by the ankang hospital, conduct admission formalities pursuant to the issue of a “Notice of Hospitalization for Commitment and Treatment of a Mentally Ill Person Who Endangers Social Order” by the ankang hospital. Under special, emergency situations where it is necessary to immediately carry out compulsory commitment for treatment, a mental illness forensic medical evaluation shall be carried out promptly after commitment and intake formalities conducted after the fact.

     Article 5: With respect to the medical expenses of hospitalized mentally ill persons subjected to compulsory commitment for treatment: for those with work units, [the expenses] shall be handled in accordance with labor insurance and public health service regulations; for those employees who are under labor contract, [the expenses] shall be handled in accordance with relevant national regulations; for those without fixed employment or income, a guardian shall assume responsibility; where there is no guardian, the civil affairs department shall assume responsibility.

     Article 6: A mentally ill person who has been subjected to compulsory commitment for treatment may be discharged after obtaining approval from the ankang hospital if he or she has been cured through treatment, his or her symptoms have stabilized, and he or she is basically no longer able to endanger social order or has other serious illnesses.

     Article 7: Where a mentally ill person receives approval to be discharged, his or her guardian or work unit shall conduct discharge formalities in accordance with the notification of the ankang hospital. Where discharge is refused without legitimate reason, the branch (county) public security bureau that originally reported hospitalization for the compulsory commitment for treatment shall order a guardian to retrieve [the person refusing discharge]. Where there is no guardian and no fixed employment or income, the civil affairs department shall take custody and arrange for placement.

     Article 8: When a mentally ill person dies during the period of compulsory commitment for treatment, an evaluation of [the cause of] death shall be performed and notice given to the guardian or work unit to go to the ankang hospital to handle post-mortem affairs. Where there is refusal without legitimate reason or there is no guardian and no work unit, the body of the deceased shall be handled by the ankang hospital in accordance with relevant national and local regulations.

     Article 9: During the period of compulsory commitment for treatment, the guardian or relatives of a mentally ill person shall actively cooperate with treatment. Guardians or relatives who go to the hospital to create serious disruptions or disturb order shall be dealt with by the public security organ in accordance with the law and in light of the seriousness of the circumstances.

     Article 10: The public-order units of each branch (county) public security bureau and the security units of enterprises shall, under the direction of the ankang hospital, implement prevention-responsibility systems aimed at mentally ill persons who endanger social order and implement measures for custody, control, and management of mentally ill persons who endanger social order.

     Article 11: A mentally ill person’s guardian, work unit, and local residents’ committee or village committee shall strengthen protective custody over the mentally ill person, protect his or her personal and property rights and other lawful rights and interests, and prevent the mentally ill person from causing trouble and endangering social order.

     Article 12: These measures take effect from the day of announcement. At that time, the “Several Temporary Provisions for Custody and Management of Aggressive Maniacs [sic],” approved for implementation by the Tianjin People’s Committee on August 9, 1965, shall cease to be effective.

Chinese Source（原文）:  天津市收治管理危害社会治安精神病人办法 http://www.tjzb.gov.cn/system/2011/02/18/000251112.shtml Click on icon to expand

天津市收治管理危害社会治安精神病人办法

市人民政府令1991年第47号

（1991年12月8日经市人民政府批准 根据2010年11月8日市人民政府第59次常务会议《关于修改部分市政府规章的决定》修正）

        第一条 为加强对危害社会治安精神病人的监护、管理和治疗，维护社会秩序，保障人民生命财产安全，保护精神病人的合法权益，根据国家有关规定，结合本市实际情况，制定本办法。

        第二条 凡本市及外地流入本市有下列行为之一的精神病人，由市公安局安康医院予以强制收治：

1. 实施杀人、放火、强奸、爆炸等行为的；
2. 严重扰乱党政军机关办公秩序和企事业单位生产、工作秩序的；
3. 严重扰乱公共秩序，危害公共安全的；
4. 其他影响社会安定，造成严重后果的；
5. 曾实施上述各种行为，病情缓解出院后，又有明显发病症状的。

        第三条 市公安局安康医院是本市强制收治危害社会治安精神病人的专门机构，具有治安管理和监护医疗的双重职能。
        安康医院按照依法管理、科学治疗、管治结合、为社会治安和病人服务的原则，对住院精神病人实行强制性监护治疗。

        第四条 本办法第二条所列精神病人需强制收治的，由公安分(县)局申报，经安康医院组织精神病司法医学鉴定后，凭安康医院签发的《收治危害社会治安精神病人入院通知书》，办理入院手续。遇有特殊紧急情况，需立即强制收治的，收治后应及时做出精神病司法医学鉴定，并补办入院手续。

        第五条 强制收治入院精神病人的医疗费用，有工作单位的，按劳保、公费医疗规定办理；实行劳动合同制的职工，按国家有关规定办理；无固定职业和收入的，申报由监护人承担，无监护人的，由民政部门承担。

        第六条 强制收治的精神病人，经治疗痊愈的、病情缓解稳定的、基本丧失危害社会治安能力的或有其他严重疾患的，经安康医院批准可以出院。

        第七条 经批准出院的精神病人，由监护人或工作单位，按照安康医院的通知办理出院手续。无正当理由拒不出院的，由原申报强制收治入院的公安分(县)局责令监护人领回。无监护人又无固定职业和收入的，由民政部门收容安置。

        第八条 精神病人在强制收治期间死亡，应当做出死亡鉴定，并通知监护人或其工作单位到安康医院办理善后事宜。没有正当理由拒不办理或者无监护人又无工作单位的，死者尸体由安康医院按国家及本市有关规定处理。

        第九条 精神病人在强制收治期间，其监护人或亲属应积极配合治疗。监护人或亲属到医院寻衅滋事、扰乱秩序的，由公安机关视情节轻重依法处理。

        第十条 各公安分(县)局的治安部门和企事业单位的保卫部门，应当在安康医院指导下，对危害社会治安的精神病人实行防治工作责任制，落实对危害社会治安精神病人的监护控制及管理措施。

        第十一条 精神病人的监护人，精神病人的所在单位和住地的居民委员会、村民委员会应当加强对精神病人的监护，保护其人身和财产等合法权益，并预防精神病人肇事，危害社会治安。

        第十二条 本办法自公布之日起施行。一九六五年八月九日经天津市人民委员会批准执行的《关于收容管理武疯病人的几项暂行规定》同时废止。

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Xi'an Order No.93: click to expand

Xi’an People’s Government Order
No. 93

     The “Xi’an Measures on Commitment for Treatment of Persons with Mental Disorders Who Seriously Endanger Social Safety” were passed at the 153rd meeting of the 14th [Xi’an] People’s Government Standing Committee on July 11, 2011. They are hereby published and will become effective on August 30, 2011.

Mayor Chen Baogen
July 22, 2011

Xi’an Measures on Commitment for Treatment of Persons with Mental Disorders Who Seriously Endanger Social Safety

     Article 1: In order to strengthen [the system of] commitment for treatment and the management of persons with mental disorders who seriously endanger social safety, to safeguard social public order and public safety, and protect citizen’s personal rights and public and private property, these measures are enacted in accordance with the provisions of the Criminal Law of the People’s Republic of China (PRC), the People’s Police Law of the PRC, and other laws and regulations and in combination with the actual circumstances in this city.

     Article 2: These measures are applicable to the commitment for treatment and management of persons with mental disorders who seriously endanger social safety within the administrative region of this city.

     Article 3: Commitment for treatment of persons with mental disorders who seriously endanger social safety shall be incorporated into the city’s plan for mental health work. The funds necessary for undertaking commitment for treatment work are to be included in the budget.

     Article 4: The public security organ is the competent authority with respect to commitment for treatment of persons with mental disorders who seriously endanger social safety and is responsible for arranging the implementation of these measures. Departments responsible for the administration of health, civil affairs, human resources and social insurance, finances, and other matters, along with mass organizations such as the China Disabled Persons’ Federation, shall, in accordance with their own functional responsibilities, assist with the proper commitment for treatment of persons with mental disorders who seriously endanger social safety.
     The city ankang hospital is responsible for carrying out clinical treatment and management of those persons with mental disorders who seriously endanger social safety [and] that the public security organ has decided to commit for treatment.

     Article 5: Where a person with a mental disorder meets both of the following conditions, the public security organ at or above the county level shall decide to commit that person for treatment:

1. While unable to distinguish or unable to control his or her actions, commits an act that seriously endangers society and is suspected of a crime [but] is confirmed by an evaluation in accordance with statutory procedures not to bear criminal responsibility;
2. Does not have a guardian or has a guardian who lacks the ability to look after [him or her], or, although having a guardian, is a person with severe mental disorders who could potentially continue to endanger society if commitment for treatment is not imposed.

     Article 6: [Where a person with a mental disorder] meets any of the following conditions, the public security organ may not issue a decision to commit for treatment:

1. Suffers from a serious contagious illness;
2. Suffers from a serious, life-threatening physical illness;
3. Is no longer able to endanger society;
4. Is pregnant or nursing one’s own infant under the age of one;
5. Meets other conditions for which laws, regulations, or rules provide that it is inappropriate to issue a decision to commit for treatment.

     Article 7: Where a public security organ at or above the county level makes a decision to commit for treatment, it shall produce a written commitment decision and notify the guardian of the person being committed for treatment as well as the police station in that person’s place of household registration. Where it is impossible to determine the identity of the person being committed, notification shall be made in a timely manner after [the identity] is determined.

     Article 8: Where the person being committed for treatment or his or her guardian does not accept the commitment decision made by the public security organ, application may be made for administrative reconsideration in accordance with the law or an administrative lawsuit may be filed.

     Article 9: The public security organ that issues the decision to commit for treatment shall take the commitment decision and other relevant documents and escort the person being committed for treatment to the city ankang hospital to conduct admission formalities.

     Article 10: After hospitalization, where a person committed for treatment meets any of the conditions listed in Article 6 of these measures, the city ankang hospital shall suspend treatment and notify the public security organ that issued the commitment decision to collect the person committed for treatment and deliver him or her to the care of his or her guardian or transfer him or her to another relevant medical facility for treatment. In urgent situations where it is impossible to give timely notification, the city ankang hospital may directly transfer the person to another medical facility and promptly notify the public security organ that made the decision to commit for treatment.
     During the period in which commitment [at the ankang hospital] is suspended, the public security organ that issued the commitment decision is responsible for supervising the person that was committed for treatment. Once the conditions necessitating suspension of commitment cease to exist, the public security organ that issued the commitment decision shall immediately return the committed person to the city ankang hospital to continue to receive treatment.

     Article 11: The city ankang hospital shall respect and protect the lawful rights and interests of persons committed for treatment and ensure their safety; discrimination against and humiliation and abuse of persons committed for treatment is prohibited.

     Article 12: In carrying out commitment for treatment work, the city ankang hospital shall follow the technical specifications and operational procedures for medical treatment as established by the health administration authorities and conduct periodic assessments of the mental state of persons committed for treatment and prepare assessment records.

     Article 13: Where the condition of a person committed for treatment shows obvious improvement and it is no longer necessary to continue treatment, the city ankang hospital shall produce a notice revoking commitment for treatment and deliver it to the public security organ that issued the commitment decision.
     Within seven days of receiving the notice, the public security organ that issued the commitment decision shall meet with the guardian of the person committed for treatment to conduct discharge formalities. Where there is no guardian or the guardian refuses to conduct the formalities, the public security organ that issued the commitment decision shall conduct the discharge formalities.

     Article 14: Where a person committed for treatment dies while hospitalized, the city ankang hospital shall produce a death certificate and the public security organ that issued the commitment decision shall notify the person’s guardian to handle post-mortem affairs.
     Where the guardian does not agree with the cause of death, he or she may appoint a body with the appropriate qualifications to carry out an evaluation of the death. If the guardian disagrees with the conclusion of the evaluation, he or she may apply for a re-evaluation in accordance with the law.
     Where the guardian does not agree with the cause of death and does not appoint [anyone to conduct] an evaluation, the public security organ that issued the commitment decision shall arrange for an evaluation to be carried out, complete a death notice, and notify the guardian to retrieve the body.
     Where the guardian refuses to retrieve the body within the stipulated period of time, the public security organ that issued the commitment decision shall, after taking photos [of the body], handle the matter in accordance with the law.

     Article 15: Treatment expenses incurred by the city ankang hospital for patients committed for treatment in accordance with Article 5 of these measures, as well as mental illness treatment expenses incurred during [the patient’s] treatment period at other medical facilities when commitment for treatment is suspended in accordance with Article 10 of these measures, shall be handled according to the following provisions:

1. For [patients who are] participants in the urban worker basic medical insurance and urban resident medical insurance schemes, [expenses] shall be handled according to the relevant regulations concerning the urban worker basic medical insurance and urban resident medical insurance schemes;
2. For [patients who are] employees of work units that do not participate in the urban worker basic medical insurance scheme, expenses are to be assumed by their work unit;
3. For [patients who are] participants in the new-style rural cooperative health insurance scheme, [expenses] shall be handled according to the relevant regulations concerning the new-style rural cooperative health insurance scheme.

     Where none of the aforementioned [payment] channels are applicable to the medical treatment expenses of a person committed for treatment, or where one of the aforementioned [payment] channels applies but there is a portion that is not covered, responsibility for [such expenses] shall be assumed by the patient or his or her guardian. Where [these parties] are truly unable to cover [the expenses], the public security organ that issued the commitment decision or the relevant medical facility shall report to the finance authority at the same administrative level and resolve the matter in accordance with relevant policies.

     Article 16: The public security organ shall recommend that inpatient treatment at an appropriate medical facility be sought by persons with mental disorders who, while unable to distinguish or control their own actions, violate public order management and, without hospitalization and treatment, will continue to endanger public safety or the personal safety of others or disturb public order, as well as those persons with mental disorders for whom, under Article 6 of these measures, a commitment decision cannot be made.

     Article 17: After a person who has been committed for treatment is discharged, the police station and his or her local mental health agency or community health service institution shall establish cooperative relations with his or her family and jointly carry out proper follow-up treatment and rehabilitation work.

     Article 18: Public security organs at all administrative levels shall, in conjunction with township or town people’s governments or sub-district offices, register persons with mental disorders who seriously endanger social safety within their jurisdictions and establish joint management mechanisms to prevent the occurrence of acts that seriously endanger social safety.

     Article 19: Abuse of authority, dereliction of duty, or self-seeking misconduct by personnel of the public security organs or city ankang hospital shall be subject to administrative punishment by their work unit or a superior responsible authority; if [their conduct] constitutes a crime, criminal responsibility shall be pursued in accordance with the law.

     Article 20: These measures take effect from August 30, 2011. At that time, the “Xi’an Measures on Compulsory Commitment for Treatment of Mentally Ill Persons Who Seriously Endanger Social Safety” (Gov’t Notice [1997] No. 7) issued by the [Xi’an] People’s Government on January 9, 1997, will cease to be effective.

Chinese Source（原文）:  西安市人民政府令 第93号 http://www.xa.gov.cn/ptl/def/def/index_1121_2560_ci_trid_9963.html Click on icon to expand

西安市人民政府令
第 93 号

        《西安市收治严重危害社会安全精神障碍患者办法》已经2011年7月11日市政府14届153次常务会议通过，现予公布，自2011年8月30日起施行。

市长 陈宝根
二〇一一年七月二十二日

西安市收治严重危害社会安全精神障碍患者办法

        第一条 为了加强严重危害社会安全精神障碍患者的收治和管理，维护社会治安秩序和公共安全，保护公民人身权利和公私财产，根据《中华人民共和国刑法》、《中华人民共和国人民警察法》等法律、法规的规定，结合本市实际，制定本办法。

        第二条 本市行政区域内对严重危害社会安全精神障碍患者的收治及其管理，适用本办法。

        第三条 严重危害社会安全精神障碍患者收治工作应当纳入全市精神卫生工作规划。开展收治工作所需经费纳入财政预算。

        第四条 公安机关是严重危害社会安全精神障碍患者收治工作的主管机关，负责组织本办法的实施。卫生、民政、人力资源和社会保障、财政等行政主管部门和残联等人民团体，按照各自职责，协同做好严重危害社会安全精神障碍患者的收治工作。
        市安康医院负责对公安机关作出收治决定的严重危害社会安全精神障碍患者进行治疗和管理。

        第五条 精神障碍患者同时具有下列情形的，由县级以上公安机关作出决定对其进行收治：

1. 在不能辨认或者不能控制自己行为的时候实施严重危害社会的行为，涉嫌犯罪，经法定程序鉴定确认，不负刑事责任的;
2. 无监护人，或者有监护人但监护人无能力看管，或者虽有监护人但不进行收治可能会继续危害社会的重性精神障碍患者。

        第六条 有下列情形之一的，公安机关不得作出收治决定：

1. 患有严重传染性疾病的;
2. 患有严重躯体疾病危及生命的;
3. 丧失继续危害社会安全能力的;
4. 怀孕或哺乳自己不满一周岁婴儿的;
5. 法律、法规和规章规定不宜作出收治决定的其他情形。

        第七条 县级以上公安机关作出收治决定，应当出具收治决定书，并通知被收治人员的监护人及其户籍所在地公安机关派出机构。无法确认被收治人员身份的，应当在查明后及时通知。

        第八条 被收治人员或者其监护人对公安机关作出的收治决定不服的，可以依法申请行政复议或者提起行政诉讼。

        第九条 作出收治决定的公安机关应当持收治决定书及其他相关材料，护送被收治人员到市安康医院办理入院手续。

        第十条 被收治人员入院后出现本办法第六条所列情形之一的，市安康医院应当中止收治，并通知作出收治决定的公安机关将被收治人员送交其监护人看护或者转至其他有关医疗机构治疗。情况紧急无法及时通知的，由市安康医院直接将其转至其他医疗机构，并及时通知作出收治决定的公安机关。
        中止收治期间，被收治人员的监管工作由作出收治决定的公安机关负责。被收治人员中止收治的情形消失后，作出收治决定的公安机关应当立即将其送回市安康医院，继续接受治疗。

        第十一条 市安康医院应当尊重和保护被收治人员的合法权益，保障被收治人员的安全，不得歧视、侮辱、虐待被收治人员。

        第十二条 市安康医院在收治工作中应当执行卫生行政主管部门制定的医疗技术规范和操作规程，并定期对被收治人员进行精神状态评估，制作评估记录。

        第十三条 被收治人员病情显著好转，不需要继续治疗的，市安康医院应当向作出收治决定的公安机关出具解除收治的通知书。
        作出收治决定的公安机关应当在接到通知书后七日内会同其监护人办理出院手续;无监护人或者监护人拒绝办理的，由作出收治决定的公安机关办理出院手续。

        第十四条 被收治人员住院期间死亡的，由市安康医院出具死亡诊断证明，并由作出收治决定的公安机关通知其监护人办理善后事宜。
        监护人对死亡原因有异议的，可以委托具有相应资质的机构进行死亡鉴定。监护人对鉴定结论有异议时，可以依法申请重新鉴定。
        监护人对死亡原因有异议又不委托鉴定的，由作出收治决定的公安机关组织进行鉴定，填写死亡通知书，通知监护人认领尸体。
        监护人在规定期限内拒不认领尸体的，由作出收治决定的公安机关拍照后依法予以处理。

        第十五条 市安康医院按照本办法第五条规定收治病人的治疗费用，以及按照本办法第十条规定中止收治的人员在其他医疗机构治疗期间所产生的精神疾病治疗费用，按照下列规定执行：

1. 参加城镇职工基本医疗保险和城镇居民医疗保险的，按照城镇职工基本医疗保险和城镇居民医疗保险的有关规定执行;
2. 未参加城镇职工基本医疗保险的单位职工，由其所在单位负担;
3. 参加新型农村合作医疗保险的，按照新型农村合作医疗保险的有关规定执行。

        被收治人员的医疗费用无前款所列负担渠道或者有前款所列负担渠道之一但不足的部分，由其本人或者监护人负担;确实无力负担的，由作出收治决定的公安机关或者有关医疗机构报同级财政部门按相关政策予以解决。

        第十六条 精神障碍患者在不能辨认或者控制自己行为时，有违反治安管理行为，不住院治疗会继续危害公共安全或者他人人身安全、扰乱公共秩序的，以及按照本办法第六条规定不能作出收治决定的精神障碍患者，公安机关应当建议其到相应的医疗机构住院治疗。

        第十七条 被收治人员出院后，公安机关派出机构以及其所在地的精神卫生机构、社区医疗服务机构应当与其家庭建立合作关系，共同做好后续治疗康复工作。

        第十八条 各级公安机关应当会同乡、镇人民政府或者街道办事处，对辖区内严重危害社会安全的精神障碍患者进行登记，建立共同管理机制，防止严重危害社会安全行为的发生。

        第十九条 公安机关及市安康医院的工作人员滥用职权、玩忽职守、徇私舞弊的，由其所在单位或上级主管部门给予行政处分;构成犯罪的，依法追究刑事责任。

        第二十条 本办法自2011年8月30日起施行。市人民政府1997年1月9日发布的《西安市强制收治严重危害社会安全精神病人办法》(市政发〔1997〕7号)同时废止。

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