Big Character Posters Incite Subversion in the Internet Age

Chen Shifu advocated for Sun Yat-sen's Three Principles of the People in his big character posters.

In April 2002, a “big character poster” (dazibao) appeared on a bulletin board reserved for official public notices outside the government building in Zhaoshi Town, Longshan County, in western Hunan Province. Entitled “Letter of Protest,” the poster was written with a calligraphy brush on red paper and called on residents to oppose local government policies related to property demolition and eviction. Over the course of the next several months, other posters appeared and their rhetoric grew more radical.

After an August poster called on people to overthrow the Communist Party and re-establish rule by the Nationalist Party (Guomindang), local police launched a special investigation to find the author of the posters. Two weeks later they found their man, a 45-year-old coffin seller named Chen Shifu, and charged him with inciting subversion.

In the age of blogs and Weibo, it’s perhaps easy to underestimate the significance of a few sheets of paper posted in a public place. Big character posters, large-print manifestos posted strategically to attract the attention of passers-by, have a long history in China, but they became an established means of expressing challenges to authority during the Cultural Revolution (1966‒1976). In fact, for a while the right to express criticisms in this manner became deeply connected to the idea of free speech. A right to post big character posters was enshrined in the 1975 constitution as one of the “four big rights,” which were extolled as “new forms of carrying on socialist revolution created by the masses of the people.” This right was retained in the first post-Cultural Revolution constitution in 1978, but in the wake of the 1979 Democracy Wall movement, the newly consolidated party leadership under Deng Xiaoping decided that big character posters were a threat to the “normal” exercise of the people’s democratic rights, and the right was removed from the 1980 constitution.

Putting up “counterrevolutionary posters”—together with counterrevolutionary leaflets and letters—was classified as a crime of “counterrevolutionary propaganda and incitement” in the criminal law that took effect in 1980. Hundreds if not thousands of people were sentenced to prison for “the three types of cases” during the 1980s and 1990s before the crime of counterrevolution was removed from the criminal law in 1997.[*] After 1997 those detained for putting up posters, distributing leaflets, or sending letters calling for the overthrow of the Communist Party were charged with “inciting subversion.”

The political motivations behind the charge of inciting subversion are expressed clearly in the statement to the court (translated below) presented by Yang Qinghua, who served as public prosecutor in the trial of Chen Shifu. In his attempt to justify the charges against Chen, Yang takes us step by step through the alchemy by which nation, government, and ruling party are fused in China’s political culture, making any challenge to the Communist Party’s “core leadership” role a threat to state security. The prosecutor’s statement is suffused with political language, with which he makes clear that the law he enforces in this case is not so much state law as it is party law. His ultimate analysis of the roots of Chen’s crimes places blame on the defendant’s failure to adhere to the core political faiths that the party has gone to great lengths to instill in its citizens: that the 1949 revolution marked a distinct break between “old” and “new” Chinas, a sharp boundary between the poverty and weakness of the past and the promise of prosperity and strength for a people who had finally “stood up.”

Yang ridicules Chen for his linguistic inelegance and ignorance, yet Yang’s statement (which earned a provincial award for excellent prosecution statements) also suffers from errors, faulty logic, and sloppy legal citations. Yang misquotes China’s constitution, and in what the prosecution must have thought was one of its most damaging arguments, Yang exposes Chen’s inability to elucidate the “Three Principles of the People” that he advocated in his posters. Yang then reveals his own ignorance by identifying “democracy” rather than “nationalism” as the first component of Sun Yat-sen’s famous theory. The fact that, despite these flaws, Yang’s statement was deemed worthy of an award reinforces the suspicion that it was assessed not for its excellence in legal analysis or logic, but rather for its ideological correctness.

The outcome of Chen’s trial is currently unknown, but considering that prosecutors sought a maximum five-year sentence, he is believed to have been released no later than 2007.

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* Counterrevolutionary correspondence is related to the three types of cases. Among law enforcement authorities, it principally referred to cases in which letters were sent with counterrevolutionary purposes to overseas correspondence addresses broadcast by radio stations of “Chiang clique agents,” according to a notice issued by the Supreme People’s Court, Supreme People’s Procuratorate, and Ministry of Public Security on December 26, 1979.⇑

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Procuratorate Prosecution Statement: click to expand

Xiangxi Tujia & Miao Autonomous Prefecture People’s Procuratorate
Prosecution Statement

Presiding Judge, Adjudication Officers, and Citizen Observers:

This morning, the First Criminal Division of the Xiangxi Autonomous Prefecture Intermediate People’s Court held a hearing here to publicly try the inciting subversion case against defendant Chen Shifu. In accordance with Articles 153, [160], 165, and [169] of the Criminal Procedure Law of the PRC and Article 15 of the Organic Law of the Procuratorate of the PRC, I have been assigned by the Xiangxi Autonomous Prefecture People’s Procuratorate to represent it as prosecutor on behalf of the state and appear in court to support the prosecution, as well as to undertake legal supervision of the criminal process.

In the court investigation phase of the trial just now, the court’s investigation of the defendant’s testimony in court and questioning by the prosecutor, the reading of relevant witness statements, expert opinions, the record of the crime-scene investigation, and the presentation of relevant documentary evidence sufficiently demonstrates the correctness of our procuratorate’s decision to charge defendant Chen Shifu with the crime of inciting subversion and that the evidence is sufficient and reliable. In order to further expose criminality, castigate evil, uphold justice, and promote legal institutions, the prosecution will set out the following several arguments for the court’s consideration as it decides upon conviction and sentencing for the defendant:

I. Defendant Chen Shifu’s actions constitute the crime of inciting subversion.

According to Article 105(2) of the Criminal Law of the PRC: the offense of “inciting subversion of state power” means to engage in incitement by spreading rumors or slanders or any other means to subvert state power or overthrow the socialist system. Before convicting under this offense, we must clarify two concepts:

1. What is the nature of our country’s state power?
2. Article 1 of the Constitution of the PRC states: “The People's Republic of China is a socialist state under the people's democratic dictatorship led by the working class and based on the alliance of workers and peasants.” The Constitution also states [The following language is not found in the Constitution–Trans.] that the Communist Party of China (CPC) is the core of leadership of China’s socialist revolution and socialist construction effort and the core of leadership of China’s state power of people’s democratic dictatorship. From the above constitutional provisions, we can see that leadership over the state by China’s working class is realized through CPC rule. Overthrow of the CPC is equivalent to overthrowing the leadership of the working class and tantamount to subverting state power, and is thereby a rejection of the socialist system.
3. Inciting subversion is a behavioral offense, which means that a crime is constituted so long as the perpetrator engages in behavior that incites subversion of state power—regardless of whether or not that behavior results in actual harm or whether others believe [the incitement] or commit acts of incitement.

In conclusion, knowing the nature of China’s state power and understanding that the crime of inciting subversion is a behavioral offense, let us again review the case and analyze the actions and subjective intent of defendant Chen Shifu: The prosecution charges that defendant Chen Shifu incited subversion of state power (i.e., the leadership of the CPC) by posting “big character posters.” To show why we say this, the prosecutor will read an excerpt from defendant Chen Shifu’s third “big character poster” (i.e., “Call to Arms”): “I call on all ordinary people and celebrities in China to rise up and overthrow the Communist Party; to retake our national government and govern China properly. Everyone can begin by posting ‘big character posters’ all over or directly participating in anti-Communist organizations. . . .” From this excerpt, we can see clearly that the defendant subjectively had a clear intention to overthrow the CPC and subvert state power and that he objectively engaged in corresponding behavior (posting ‘big character posters’). So, whether one looks at subjective or objective criteria, [his actions] satisfy the main constituent criteria for the crime of inciting subversion. The prosecution’s decision to prosecute defendant Chen Shifu on this charge is correct. However, ever since he was taken into custody—including in court today—defendant Chen Shifu has claimed in his defense that he only wanted to make comments and did not really want to overthrow the Communist Party. The prosecution believes that this is only sophistry on the defendant’s part in an effort to mitigate his criminal liability. Think about it: Does it make sense to overthrow a state’s ruling party first and then make comments? The prosecution believes that no ruling party in any country in the world would accept this way of making “commentary.” The collegiate panel should not give any credence to this sort of ridiculous defense argument.

II. The evidence supporting the criminal charges against defendant Chen Shifu was collected legally and is objective and mutually correlative.

During the just-concluded court investigation phase, the prosecution put forth a large amount of evidence supporting the criminal charges against the defendant. Below, the prosecution will summarize [that evidence] as follows:

1. Defendant Chen Shifu fully confessed to using a brush to write the three big character posters “Letter of Protest,” “On the Current Political Situation,” and “Call to Arms,” and what he has said about the paper, ink, and adhesive used; the locations of posting; and the contents is all corroborated by the testimony of witnesses Chen Xiaohua, Yao Jinxiang, Wu Caixu, Xiang Famao, Peng Bin, Zhang Furong, and Li Wancai.
2. The testimony of Zhou Minglong, Wang Boyu, Li Wenzhi, Chen Shiyun, Fan Guihua, and Wu Dan, confirming that they personally saw the big character posters and some of the contents, is completely consistent with the confession of defendant Chen Shifu.
3. The corroborating documentary evidence of the three big character posters, “Letter of Protest,” “On the Current Political Situation,” and “Call to Arms,” in the case file.
4. The public security authority’s record of on-scene investigation and relevant photographs, which are on file, and the conclusions of the Longshan County Public Security Bureau’s handwriting analysis determining that the three big character posters were all written by Chen Shifu himself, about all of which defendant Chen Shifu has not raised any objections.
5. Documents on file such as the crime report, record of case solution, and record of defendant Chen Shifu’s apprehension.

The evidence above is not mutually contradictory and forms a complete chain of evidence. The only exclusive conclusion that can be drawn from this evidence is that defendant Chen Shifu used the posting of big character posters to incite subversion of state power.

III. Refutation of some of defendant Chen Shifu’s mistaken views

In questioning the defendant and examining the investigation file, the prosecution has discovered that defendant Chen Shifu’s thinking is very confused and that his views are full of holes. There are numerous poorly constructed sentences and mistaken characters in the big character posters he wrote. (Based on the prosecution’s rough tally, there are more than 25 mistaken characters and seven poorly constructed sentences in his “Call to Arms,” an “essay” of fewer than 300 characters.) Some of his views display certain confusions, of which the prosecution will examine two in particular in order to set the record straight:

1. First is the idea that the “freedom of expression” enjoyed by citizens can conceal his criminal activity. During the prosecution’s questioning and even here in today’s courtroom, the defendant continued to say that citizens enjoy the right to “freedom of expression.” There’s no mistake, “freedom of expression” is a fundamental right granted to citizens by the Constitution. But the prosecution is obligated to point out that “freedom of expression” must be established within the framework of law, instead of overriding the law. Moreover, the prosecution wants to explain very carefully that our country and our ruling party has never been afraid of comments from the masses. On the contrary, we welcome very much the oversight of the broad popular masses. Had the defendant expressed his comments and suggestions through lawful channels such as the system of letters and visits or petitioning or made complaints to a people’s congress deputy, he wouldn’t be standing here today in the defendant’s docket. On the contrary, he would receive the law’s protection. Unfortunately, however, Chen Shifu chose the unlawful manner of “posting big character posters” and made vicious attacks and slanders against the government and our party. This is something the law cannot allow. I wonder whether defendant Chen Shifu now realizes this as he sits in the defendant’s docket.
2. Only the “Three Principles of the People” and the Nationalist Party (Guomindang) can properly govern China. This is something that the defendant has said many times; but, ironically, when asked by the prosecution what the “Three Principles of the People” were, the defendant could not answer. Just think, how can a person who doesn’t even know what the “Three Principles of the People” are know whether they can properly govern China? This in and of itself is a joke. One cannot deny that during the old era of democratic revolution, Sun Yat-sen’s idea of the “Three Principles of the People” being “Democracy, People’s Rights, and People’s Livelihood” [The first principle is “nationalism” (minzu) not “democracy” (minzhu)—Trans.] was certainly a progressive idea during its time. Today, however, when China has already entered the socialist era, it is clearly out of step with the times to talk about the “Three Principles of the People.” These days, only Deng Xiaoping Theory and the important idea of “Three Represents” can guide China on the path towards being a strong nation with wealthy citizens. The more than 20 years since reform and opening have proved this point, and I believe that future history will also prove this point. As for whether or not the Nationalist Party can properly govern China, anyone who understands even a little bit of modern history knows that from the 1911 Revolution until the founding of New China [in 1949], China was under control of the Nationalists for several decades. But what they brought the Chinese people was endless war and chaos, hardship and destitution, bullying by foreign powers, and selling out the nation in search of personal glory. As someone born after [1949] who grew up as a citizen of New China, defendant Chen Shifu never had any experience of the old China under Nationalist rule, so how can he know if the Nationalists governed well? Actually, you don’t have to go very far; if you had looked at the great differences between old and new China with regard to your own Zhaoshi Town or asked the old people around you, you wouldn’t have made such a basic error. The prosecution also wants to take this opportunity to mention to the defendant: the “ruling party” in Taiwan is the Democratic Progressive Party, not the Nationalist Party. Just think, the Guomindang cannot even govern the several dozen million people of Taiwan Province; how could they lead the more than one billion people of the mainland towards relative prosperity? Isn’t the defendant taking too much for granted?

IV. The ideological origins and social consequences of defendant Chen Shifu’s crimes and their lessons to us

Before analyzing why the defendant committed his crime, the prosecution first wishes to discuss three things: 1. After the defendant committed his crimes, the public security authority searched his residence in accordance with the law. They found not a single book promoting our party’s policies but discovered several reactionary books such as Biography of Chiang Kai-shek; 2. The defendant confessed to public security and procuratorate authorities on multiple occasions that when he was working as a migrant laborer in Fujian he often listened to Taiwan radio broadcasts to the mainland when he was bored; 3. During the process of relocating the marketplace, the defendant went to create a scene at the township government and other bodies because of the gap between the compensation payment and the expected [expenses].

From the above three matters, it is actually very easy to explain the origins of the defendant’s crimes. He neglected his studies for a long time and stopped reforming his own worldview. Because he frequently listened to hostile radio broadcasts, he gradually developed dissatisfaction with current reality and a hatred for the party and government. The moment his own interests were affected, he immediately went to stand on the side of opposing the party, opposing socialism, and opposing the people. After the Chen Shifu case occurred, it created a big impact in Zhaoshi as well as the surrounding townships. In several middle and primary schools in Zhaoshi Town it was necessary to disrupt the normal curriculum to hold several days of political-thought classes for the students in order to set the record straight. During those several days, Zhaoshi was filled with discussion of the “big character poster” incident. No sooner had the special case team arrived in Zhaoshi than a dozen or so old party members set out on their own initiative to find the team leader. These old comrades with 20 or 30 years of party membership all expressed the same desire: the case must be solved quickly and the perpetrator taken into custody because criminals who spread such heresies and disrupt people’s thinking must be severely punished. I think the words of these dozen or so old party members represent the thinking of Zhaoshi’s masses, who number more than 100,000 people. Now the case has been solved and the defendant will receive law’s sanction, but the prosecution still feels a sense of unease. How could a case like this occur in a place with such a glorious revolutionary tradition as Zhaoshi? How can we eliminate these kinds of cases once and for all? The prosecution wants to use this case to share the following lessons:

1. We cannot do as some local governments and pursue only economic development but must also develop spiritual civilization—both must be “grasped firmly with both hands.” Lately, there have been deviations in the ideology guiding the work of the heads of some local governments (of course, only a small minority). It’s as if it’s only important to pursue economics and nothing else is important. Actually, this kind of thinking is dangerous. If we sacrifice the construction of spiritual civilization in pursuit of economic development, I think this kind of prosperity will certainly not last long. Problems such as this case might even emerge.
2. The character of some of our law enforcement personnel needs to improve. The defendant in this case, as well as many other members of the public, all complained to us about simple work methods and rough attitudes of some local law enforcement personnel. Perhaps to the [law enforcement officers] themselves this is only a matter of work details, but in the eyes of the popular masses these law enforcement personnel represent the image of the party and the government. If the behavior of an extreme few damages the image of the party and the government or even gives those with ulterior motives an opportunity, this does more harm than good.
3. We still have a long way to go in our legal education work for the masses, especially for the masses in “old, minority, remote, and poor” [Here, “old” refers to old revolutionary base areas where CPC activity had been strong prior to 1949—Trans.] regions such as ours. On this point, the prosecution only wants to say one thing: The prerequisite and foundation for our ability to “rule the nation in accordance with the law” is to have the masses know and obey the law.

V. The defendant ought to be held criminally responsible.

According to Article 105(1) of the Criminal Law [The following is not actually a direct quote, the correct citations are Article 105(2) and Article 113—Trans.]: “Whoever incites subversion of state power shall be sentenced to fixed-term imprisonment of not more than five years, criminal detention, public surveillance or deprivation of political rights and may have their property confiscated.” Reviewing this case, defendant Chen Shifu has no grounds for lenience or mitigation, and we hope that the collegiate panel will render a lawful and fair verdict based on the magnitude of the defendant’s crimes, the social impact, and the defendant’s attitude towards confessing guilt. This concludes the prosecution’s statement.

Prosecutor: Yang Qinghua
April 18, 2003

(Note: This prosecution statement was awarded first prize in a provincial competition of prosecution statements.)

Chinese Source（原文）: 湘西州检察志（1989‒2007），pp. 300-305 Click on icon to expand

湘西士家族苗族自治州人民检察院
公诉意见书

审判长、审判员、旁听公民们:

湘西自治州中级人民法院刑事审判第一庭今天在这里开庭，公开审理被告人陈世富煽动颠覆国家政权一案。根据《中华人民共和国刑事诉讼法》第一百五十三条、第一百六十条、第一百六十五条和第一六十九条以及《中华人民共和国检察院组织法》第一十五条之规定，我受湘西自治州人民检察院的指派，代表本院，以国家公诉人的身份，出席法庭支持公诉，并依法对刑事诉讼实行法律监督。

在刚才的法庭调查阶段，通过被告人的当庭供述、公诉人的讯问、宣读有关证人证言、鉴定结论、勘验笔录以及出示有关书证等一系列法庭调查活动，充分说明本院指控被告人陈世富所犯煽动颠覆国家政权罪定性是准确的、证据也是确实充分的。公诉人为了进一步揭露犯罪、鞭挞邪恶、匡护正义、弘扬法制，下面就本案谈如下几点公诉意见，供法庭在对被告人定罪量刑时予以考虑:

（一）被告人陈世富的行为己构成煽动颠覆国家政权罪

《中华人民共和国刑法》第一百零五条第二款规定"煽动颠覆国家政权罪"是指以造谣、诽谤或其它方式煽动颠覆国家政权、推翻社会主义制度的行为。我们在认定此罪名前必须要明确两个概念:

1. 我国国家政权的性质是什么?
2. 《中华人民共和国宪法》第1条规定"中华人民共和国是工人阶级领导的、以工农联盟为基础的人民民主专政的社会主义国家“。同时《宪法》还规定“中国共产党是我国社会主义革命和社会主义建设事业的领导核心，是我国人民民主专政的国家政权的领导核心。由上述宪法规定我们可得知：中国工人阶级对国家的领导是通过中国共产党的执政来实现的，推翻中国共产党，即是推翻工人阶级的领导，既是颠覆国家的政权，从而否定社会主义制度。
3. 煽动颠覆国家政权属于行为犯，即只要行为人具有煽动颠覆国家政权的行为，不管是否产生实际危害结果，不管他人是否相信或实施了煽动内容的行为，都构成犯罪。综上，知道了我国国家政权的性质，明白了煽动颠覆国家政权罪是行为犯，我们再来结合案情分析被告人陈世富的行为和主现故意：公诉机关指控被告人陈世富利用张贴"大字报"的形式煽动颠覆国家政权(即中国共产党的领导)。为什么这样讲，公诉人下面摘录宣读被告人陈世富在第三张"大字报"（即《号召书》）中的一段话：“号召天下百姓和知名人士站起来，推翻共产党，把国民政府接回来，再好好的治理中国。大家首先可以《大字报》的形式到处张贴，或者直接参加反共组织……"从此段话我们可以清楚地得知，被告人在主观上明显具有推翻中国共产党领导，颠覆国家政权的故意，同时在客观上也实施了相应的行为(张贴"大字报")，其无论从主观要件上，还是从客观行为要件上均符合煽动颠覆国家政权罪的构成要件。公诉机关以此罪起诉被告文陈世富在定性上是准确的。虽然，在被告人陈世富被抓后，乃至在今天的法庭上，陈一直辩称其只想提意见，并不是真的想推翻共产党。公诉人认为这只是被告人为了减轻罪责的一种狡辩，试想：有没有先将一个国家的执政党推翻后，才提意见的道理。公诉人想世界上任何一个国家的任何一个执政党都不会接受这种"提意见"的方式的。对于此种荒谬的辩解，合议庭在应不予采信。

（二）认定被告人陈世富犯罪的证据来源合法、客观、证据之间具有关联性

公诉人在刚才的法庭调查阶段，列举并出示了大量认定被告人犯罪的证据。公诉人下面在这里作一下归纳：1、被告人陈世富对其用毛笔书写《抗诉书》、《时局论》、《号召书》三份大字报供认不讳，所述用的纸张、墨水、胶水、张贴的位置、书写的内容均与证人陈小花、姚金香、吴才绪、向发茂、彭斌、张芙蓉、李万财证实一致；

2 、证人周明龙、王伯宇、李文志、陈仕云、范桂花、吴丹等人证实亲眼看见的大字报的纸张及部分内容与被告人陈世富供述完全吻合；3、有书证《抗议书》、《时局论》、《号召书》三张大字报在卷佐证；4、有公安机关的现场勘场笔录、相关照片在卷，龙山县公安局文检鉴定三张大字报均系陈世富一人书写，并经被告人陈世富辩认后没有异议；5、有报案记录、破案记录、抓获被告人陈世富经过等材料在卷。以上证据间互无矛盾，且已形成完整的证据索链。通过这些证据只能得出唯一的排他性的结论即：被告人陈世富采取张贴大字报的方式煽动颠覆国家政权。

（三）对被告人陈世富几个错误观点的反驳

公诉人讯问被告人及审查卷宗时发现，被告人陈世富的思维相当混乱，观点也漏洞百出，书写的大字报病句、错字更是随处可见（公诉人粗略统计了一下，在其《号召书》不足三百字的"文章"中，便有多达二十五个错别字和七个病句）。然而其某些观点，又颇具一定的迷惑性，公诉人下面剖析两点，以正视听： （1）以公民享有"言论自由"权掩盖其犯罪行为，公诉人在提审被告人，甚至在今天的法庭上，被告人还提到公民享有"言论自由"权。不错，"言论自由"是《宪法》赋予公民的一项基本权利，但是公诉人必须指的是"言论自由"权必须是建立在法律的框架之下，而决非凌驾于法律之上。另外，公诉人要慎重说明的是，我们的国家，我们的执政党从来都不怕群众提意见，相反还十分欢迎广大人民群众的监督。假如被告人能够利用信访、上访或找人大代表代为反映等等这些合法的途径提出自己的意见和建议，那么今天他不但不会坐在被告席上，相反还会受到法律的保护。然而遗憾的是，陈世富却选择了“张贴大字报”这种不法手段，同时还对政府及我党进行恶毒的攻击和诽谤，这就是法律所不允许的了。不知今天坐在被告席上的陈世富是否意识到了这点；（2）只有"三民主义"，只有国民党才能治理好中国。这是被告人多次提及的观点，然而可笑的是，当公诉人问其什么是"三民主义"时，被告人却答不上来了。试想，一个连什么是"三民主义"也没弄明白的人，又怎么知道“三民主义”能治理好中国，这本身就是一个笑话。不可否认，在旧民主主义革命时期，孙中山先生提出的以"民主、民权、民生"为核心的“三民主义”思想，在当时确实是一种先进的思想。然而在中国已进入社会主义的今天，再提“三民主义”显然已不合时宜了。在当今，唯有邓小平理论和"三个代表"重要思想才能使中国走上强国、富民之路，改革开放二十多年来的历史已证明了这点，相信以后的历史还将证明这一点。再谈一下国民党是否能治理好中国，稍微懂一点近代史的人都知道，从辛亥革命到新中国成立，国民政府在中国也统治了几十年，然而它带给中国人民的是什么，是无穷的战乱，是民不聊生、是外强欺辱、是卖国求荣。被告人陈世富作为生在解放后，长在新中国的公民，根本都没有经历过国民政府统治过的旧中国，又怎么会知道国民党统治的好呢？其实你根本不用去远方，只要你看一看你们召市新、旧社会的巨大变化，问一问你身边的老人们，你也不至于犯这样一个低级的错误了。公诉人在这里还想顺带告诉一下被告人：目前在台湾"执政"的已不是国民党了，而是民进党。试想连一个几千万人口的台湾省也治理不好的国民党，又怎么能领导大陆十多亿人奔小康。被告人是否有点太想当然了。

（四）被告人陈世富犯罪的思想根源，社会影响及给我们的启示

在剖析被告人为会犯罪前，公诉人想先讲三件事：1、在被告人犯罪后，公安机关依法对其住所搜查时，竟未发现一本宣传我党方针政策的书籍，倒是翻出了几本像《蒋介石传》之类的反动书籍；2、被告人多次向公安和检察机关供述：自己在福建打工期间，由于无聊，经常收听台湾对大陆的广播；3、在这次市场搬迁过程中，由于补偿金与预期有一定的差距，被告人多次到乡政府等部门闹事。从上三件事，其实已很好地诠译了被告人犯罪的根源，那便是长期不学习，放松了对自己世界观的改造，由于经常收听敌台，逐渐产生了对现实不满，仇视党和政府的情绪。当自己的利益一旦受到触动，便马上站到了反党、反社会主义，与人民为敌的一面。陈世富一案发生后，在召市乃至相关乡镇，造成了极大的影响。召市镇几个中、小学、不得不打乱原来的教学计划，对学生上了几天的政治思想课，以正视听。而在那几天，召市的街头巷尾，莫不是纷纷议论"大字报事件"以至于专案组刚一进驻召市，便有十几位老党员自发地找到了专案组负责人，这些有着二、三十年党龄的老同志都表达了一个心愿：请务必尽快破案，请务必抓到罪犯，对于这种公然妖言惑众、扰乱民心的罪犯，必须严惩不贷。我想这十几位老党员的话也代表了召市十几万群众的心声。现在案虽破了，被告人也将要受到法律的制裁，然而公诉人的心情却难以平静，为什么在召市这片有着光荣革命传统的土地上会发生此案，如何才能杜绝此类案件再度发生，公诉人想通过此案谈几点启示：

1. 我们某些地方政府不能光抓经济建设，同时还要抓精神文明建设，必须"两手抓，两手硬"。目前，我州某些地方政府领导（当然是极少数）的工作指导思想出现了一定的偏差，仿佛只要经济抓上去了，其它的都不重要了，其实这种思想是很危险的，假如我们以牺牲精神文明建设为代价去抓经济建设，我想这种繁荣一定不会持久，甚至还会出问题，辟如此案。
2. 我们某些执法部门人员的素质还有待于提高，本案被告人同时也包括很多群众都向我们反映当地某些执法部门工作人员的工作方法简单，态度粗暴，也许对其个人而言，这仅仅是个工作细节问题，然而在人民群众眼中，这些执法部门的人员部代表的是党和政府的形象。假如因为极个别人的行为损害了党和政府的影象，甚至给一些别有用心的人有机可趁，这将是得不偿失;
3. 群众的普法工作，尤其是像我们这样一些"老、少、边、穷"地区群众的普法工作还任重而道远，对于这点，公诉人不想多谈，只想讲一句：群众知法、守法将是我们"依法治国"的前提和基础。

（五）被告人应负的刑事责任

我国《刑法》第105 条第1款规定"犯煽动颠覆国家政权罪的，处5 年以下有期徒刑、拘役、管制或者剥夺政治权利，并可并处没收财产"。结合本案来看，被告人陈世富没有任何从轻、减轻情节，希望合议庭根据被告人的罪责大小、社会影响、认罪态度等对其作出合法而公正的判决，公诉意见发表完毕。

公诉人：杨庆华
2003年4月18日

（注：此公诉词在全省公诉词评选中获得优胜奖。）

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Tang Hui Case: Why the Focus Should Be on Judicial Independence

Tang Hui weeps outside the courtroom after her lawsuit was rejected. Photo credit: Ycwb.com

Last Friday, the Yongzhou Intermediate People’s Court in Hunan Province rejected a much-anticipated administrative lawsuit brought by “Petitioning Mother” Tang Hui against the local reeducation through labor (RTL) management committee. Tang is seeking a written apology and about 2,500 yuan (approximately US $400) in compensation and damages for the controversial RTL decision issued against her in August 2012. The decision sentenced her to one and a half years of RTL in response to the tenacious petitioning she lodged to bring perpetrators and police to justice in her daughter’s case of sexual abuse and exploitation.

Influenced by strong public sympathy for a mother whose 11-year-old child was repeatedly raped and forced into prostitution, the provincial RTL Committee annulled the local committee’s decision shortly after Tang applied for administrative reconsideration. The annulment was issued on the grounds that, under the circumstances, admonition and education would be “more appropriate.”

At issue during this month’s trial was whether the Hunan Province RTL Committee’s revocation of the RTL decision against Tang means that the original decision should be considered “unlawful,” and therefore eligible for compensation. Tang’s lawyers argued that the annulment clearly implied that the decision was unlawful. Although the Yongzhou RTL Committee acknowledged in court that the RTL decision had been “clearly inappropriate,” it countered that the decision to release Tang had been made out of “humanitarian concern” (namely, in light of her need to care for her traumatized daughter), without questioning the legality of the underlying RTL decision.

If the Yongzhou RTL Committee’s action against Tang Hui was “clearly inappropriate,” then it could be argued that the RTL decision represented an abuse of official power, which would be grounds for compensation under Chinese law. But instead of undertaking its own examination of the legality of the original RTL decision—an authority it has under the revised State Compensation Law—the court ultimately accepted the argument that the decision had been “inappropriate,” but not “unlawful.” The result is a seemingly paradoxical conclusion in which both the RTL decision against Tang and the subsequent revocation of that decision were found to be proper and lawful.

Images of an inconsolable mother circulated widely on the Internet after the intermediate court’s decision, followed by numerous expressions of public sympathy and outrage at the perceived unwillingness of local authorities to admit their mistakes. The inability of the judicial system to achieve a just outcome in Tang’s case threatens to lead to further erosion of trust in the judicial system, a dangerous loss of legitimacy, and a potential source of instability.

But whereas the majority of commentators see Tang’s case as a consequence of the flawed RTL system, Hainan University Law School Professor Wang Lin, a frequent commentator on legal matters, places blame on the strained relationship between China’s judiciary and the system of “letters and visits” (or xinfang, a system that gives Chinese citizens an extra-judicial channel through which to make complaints and petition for redress of grievances). Lack of faith in the judicial system’s ability to produce justice leads people like Tang Hui to petition, but seeing them as threats to social stability, authorities take measures against petitioners and thereby exacerbate a broader sense of injustice.

This vicious cycle exists independently of specific countermeasures, meaning that reform or abolition of RTL is unlikely to break the cycle. Writing in Monday’s Oriental Morning News, Wang opines that the solution lies in the promotion of an independent judiciary, one that would restore citizens’ faith and confidence in the legal system and make alternative channels like petitioning less necessary.

*
Use Tang Hui Case to Rebuild Relationship of Judiciary, Petitions
Wang Lin, Oriental Morning News
April 15, 2013 

On March 25, the first-instance decision was issued in the suit brought by Lanzhou’s “Petitioning Mother” Zhao Meifu[*] against the Lanzhou RTL Committee. The court rejected Zhao’s litigation demands on the grounds that the deadline for litigation had already passed. On April 12, a first-instance decision was issued in the suit brought by Yongzhou, Hunan’s “Petitioning Mother” Tang Hui against the Yongzhou RTL committee. The court found that plaintiff Tang Hui’s demands could not be accepted because they lacked a factual and legal basis.

It is no coincidence that both of these “petitioning mothers” lost their respective lawsuits against RTL committees. Public opinion expects the tears of these “petitioning mothers” to be the final blow prevailing over the RTL system. Judging from the statements made by the relevant central authorities, this is no extravagant hope. Major changes are in the works for RTL; it’s just a matter of time.

With the Tang Hui and Zhao Meifu cases as points of departure, attention to the reform or even abolition of the RTL system is a natural public reaction. But hidden in the background of these two cases is not simply a debate over the legality of the RTL system, but [a need to] rethink the relationship between petitioning and the judicial system. Why were the “petitioning mothers” sent to RTL? Because of their “petitioning.” Why did they “trust the petitioning system rather than the judicial system”? Because they believed that they had already exhausted all channels for a judicial remedy and felt that they were unable to defend their rights effectively. So, they tied their hopes to the petitioner’s path.

For example, in the Tang Hui case, this mother was an ordinary citizen who became a “victim’s relative” because of a sudden calamity from heaven. In October 2006, her 11-year-old daughter was repeatedly raped and then forced into prostitution. Ordinarily, in a society with rule of law, the police ought to launch an investigation soon after receiving a report [of a crime]. But, ironically, in this major case, it was the victim’s mother who went undercover to collect evidence and then asked two relatives to pose as brothel customers in order to save her daughter. Afterwards, only after Tang Hui threatened to kill herself were the police motivated to file the case for investigation. Then after that, at many key stages in the judicial process, action was only “compelled” through some stirringly desperate rights-defense measures pursued outside the legal system. Whenever there are problems with the rule of law, petitioning naturally replaces rule-of-law channels.

And as we can observe from media descriptions [of the case], it wasn’t actually the “petitioning” that led to the case being handled in accordance with the law; rather it was the “impact” that impelled the relevant accommodations. That “impact” Tang Hui made by petitioning was also the cause of her being sent to RTL.

Let’s look at how the “case of the Yongzhou girl forced into prostitution” evolved into the “case of Tang Hui v. Yongzhou RTL Committee”: On August 2 of last year, the Yongzhou RTL Committee decided to send Tang Hui to one and a half years of RTL for disturbing social order. Tang Hui did not accept the RTL decision and applied for administrative reconsideration by the Hunan Province RTL Committee on August 7. Three days later, amid the focus of public opinion, the Hunan Province RTL Committee annulled the RTL decision.

After being released from RTL, Tang Hui then applied for state compensation. On January 5 of this year, the Yongzhou RTL Committee rejected her request and issued a decision not to pay state compensation. On January 22, Tang Hui sued the [committee] in the Yongzhou Intermediate [People’s] Court. After losing in the court of first instance, media flocked to report that Tang Hui would appeal the case to the Hunan High People’s Court.

Assuming that rejection is still the ultimate outcome of this case, will Tang Hui accept the decision and drop her lawsuit? If Tang Hui does not accept the final verdict, at that point the only channel for judicial remedy would be the even more uncertain path of appealing to reopen the case. This could perhaps send Tang Hui once more on the old path of petitioning.

If the judicial system is unable to end disputes, then the path of abnormal petitioning becomes viable again, and in the worst case scenario, RTL measures that exist out of a need to maintain stability would inevitably befall Tang Hui yet again. In order to prevent petitioners from falling into this vicious cycle, it is imperative to reconsider the petitioning system. Even if the RTL system is brought to an end within the year, if profound reforms aren’t made to the petitioning system, then replacement measures will inevitably be put in [RTL’s] place. This is practically a vicious cycle.

Thus it is just as important to use Tang Hui’s case as an opportunity to reconsider the relationship between the judiciary and petitioning as it is to reconsider the RTL system. If it is rare that a person sent to RTL is successful in a suit against an RTL committee, it’s definitely not solely because of “malicious litigation”; in reality, much of the time it’s because of the “mutual cooperation” of relevant departments.

If rights defenders are deprived of their personal liberty because they use “inappropriate” measures to “force state organs to perform their duties in accordance with the law,” I fear this will only force rights defenders onto the path of no return. As a victim, Tang Hui did not set out to choose petitioning. She once believed in the local police and judicial bodies and exhausted her energies urging the local functional departments to perform their duties in accordance with the law. Her “petitioning” was because the actions at the “lower levels” made her lose that belief.

Resolving this difficult situation rests on rebuilding the relationship between the judiciary and petitioning and making it ordinary for parties’ lawful rights and interests to be protected within legal channels. It is essential to let judicial independence pave the way for judicial fairness. Only by protecting citizens’ lawful rights and interests can we ensure the stability of localities and rights; this is an undisputable truth.

(The author is an assistant professor at Hainan University Law School.)

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* Zhao Meifu has reportedly been involved in petitioning activities for 20 years. In November 2012, she went to Beijing to visit her son, a postgraduate student studying in the capital, and was intercepted by police under suspicion for petitioning. Lanzhou, Gansu, police escorted Zhao back home where, without being granted access to her family, she was sentenced to one year of RTL. The case received media attention after Zhao’s son posted it on Weibo (a Chinese version of Twitter), and 18 days after being sent to RTL, Zhao was released citing medical reasons. ⇑

Magazine Exposé Reinvigorates Calls to End RTL

The story as it appears in the April edition of Lens

The recurrent exposure of individuals sent on dubious charges to reeducation through labor (RTL) is one important impetus to growing consensus about the need to reform or abolish RTL in China. Details of cases involving online criticism or petitioning have galvanized opinion against the nearly 60-year-old system of administrative detention, which central authorities indicate will undergo reform later this year.

The past few days have added urgency to an overhaul of the RTL system. In its April issue (published on April 6), Lens magazine included a 14-page exposé of exploitation, abuse, and torture at the Masanjia women’s RTL facility in Liaoning Province. Based on interviews with more than 20 women formerly incarcerated there—most of whom were sent to Masanjia over the past decade as punishment for petitioning—the article documents dehumanizing treatment in an institution where power can be exercised with near complete impunity.

Domestic Media Wildfire

The article is remarkable for its detailed descriptions of conditions at Masanjia and its corroboration of detainee accounts by labor-camp staff. Coming from Lens, a mainland publication owned by the publishers of popular financial magazine Caijing, the report arguably lends concern over RTL abuse more weight and traction inside China than reports by Western media or NGOs. Human rights organizations have reported the appalling conditions in RTL facilities before, and many of the accounts of torture at Masanjia echo allegations that have been raised for many years by practitioners of Falun Gong, banned by the Chinese government in 1999. In late 2012, Masanjia was named in mainstream Western media after an Oregon woman opened a box of Halloween decorations to find a letter apparently enclosed by a detainee at that women’s RTL facility. The letter described workers laboring for long hours with little rest and nearly negligible pay in order to avoid torture or abuse.

Once online, the Lens story created an immediate sensation. A slightly shortened version of the article was the most-read item on four major Chinese news sites. According to analysis (subsequently deleted from the Internet) by the “Public Opinion Monitoring Office” of People’s Daily Online, by noon on April 8, at least 420,000 had participated in online discussion of the report. The story could be found on more than 200 news sites and web forums, and it was discussed in 16,000 microblog posts, up from just over 200 the day before. Discussion has been overwhelmingly negative and has strengthened calls for the abolition of RTL and better oversight of the criminal justice system. Based on the data, analysts predicted that the public would become increasingly incensed and warned relevant authorities to “pay close attention to the potential for further developments.”

Official responses to the allegations have so far been mixed. On the one hand, authorities in Liaoning announced that they would form a special investigative team, including members of the media and the local people’s congress, to look into the charges. (This resembles the response of Yunnan officials who were faced with public pressure over a series of suspicious deaths in police detention centers in 2009.) On the other hand, officials from the Central Publicity Department of the Chinese Communist Party reportedly issued instructions on April 9 prohibiting media outlets from “reposting, reporting, or commenting” on the Masanjia story. In response, many websites have pulled the article, although, at present, most of the Lens report remains openly available online.

Extreme Corporal Punishment

The most shocking details from the Lens article are of inhuman and degrading punishment. Formerly incarcerated women describe being sent to solitary confinement in tiny cells with as little as two square meters of floor space. Inadequate air circulation left women—many of whom already suffered from physical ailments—gasping for breath and nosing the ground for drafts that might waft under the door. These damp, fetid spaces lacked adequate heating in winter, and the women often had no choice but to relieve themselves on the floor. One woman describes being handcuffed to a cell door and forced to remain standing day and night for two weeks. Although Ministry of Justice regulations limit the use of solitary confinement cells to a maximum of 10 days, women recount being held for months at a time.

The article also reports beatings, reckless use of electric batons, bodily suspension, and use of the notorious “tiger bench.” Women were hung, their outstretched arms handcuffed to the upper frames of bunk beds, so that the tips of their toes just barely touched the ground. Others were hung in awkward positions with their bodies stretched and contorted. One woman described being suspended for 28 hours. Asked about the use of such torture at Masanjia, one of the article’s inside informants explained that it was similar to the way a parent uses corporal punishment to force a child to submit: “This is related to a guard’s individual personality. Some see themselves as those who are in control, whose every action is correct. They do not have an understanding of those sent to RTL.”

Many of the petitioners interviewed used hunger strikes as a form of protest, but the response from authorities was nothing short of brutal. Hunger strikers were routinely placed on “death beds,” their bodies strapped down tightly while their mouths were wrenched open and feeding tubes forced down their throats. Confined this way for days, many of the women came away with permanent scars and broken and loosened teeth. In extreme cases, women subjected to these various treatments have developed serious mental illness and been forced to undergo radical treatments, including electroshock.

Seeking Redress on Shaky Ground

Whether describing inhuman treatment, exploitative working conditions, or the quality of food and sanitation, a recurring theme in the article is that the conditions at Masanjia fail to meet norms set forth in Chinese laws and regulations. This fact seems obvious even to those running the carceral institution, but despite such recognition, incarcerated women appear to have little recourse to protection.

An anonymous source quoted throughout the article repeatedly blames the system of “stability maintenance” for putting undue pressure on the RTL apparatus—in particular, for institutionalizing people who do not meet the criteria for confinement. “In the past, the people sent here were really bad types,” the informant explained. “Now, it’s vulnerable groups like petitioners or university students involved in pyramid schemes. I feel pity for them.” Because petitioners, in particular, tend not to acknowledge that they have violated any laws, “they don’t acknowledge guilt and they don’t work—this puts us in a difficult position.”

Procurators assigned to monitor conditions at the RTL facility are flooded with complaints, and they seem to investigate many. But gathering evidence can be difficult. The worst abuses often occur beyond the reaches of closed-circuit cameras, and potentially implicating footage is often erased. When investigators do find evidence of wrongdoing, it tends to be classified as a “disciplinary violation” for internal handling, rather than criminal prosecution. Given RTL’s shaky legal foundation, the basis for procuratorial oversight is unclear, and procurators at Masanjia seem reluctant to “take on the entire facility.” Since 2004, there has only been one criminal prosecution at Masanjia, when a guard was sentenced to 12 years in prison for assaulting an incarcerated woman, leaving her in a coma.

Some women have succeeded in getting their RTL decisions overturned through administrative litigation, but results are not guaranteed, even with clear evidence of violation. After one woman successfully had her RTL decision annulled, the Chaoyang RTL committee appealed, arguing: “Though there were flaws in the procedure [we] used . . . there was nothing inappropriate about the decision to send [her] to RTL. [The decision] was made in the interest of preserving overall stability and accords with the local law-enforcement realities of Chaoyang. Sending [her] to RTL benefits the preservation of social order and stability.”

The appeals court ultimately upheld the lower court’s decision to annul the RTL decision, a welcome rejection of the “stability above all else” mentality that has dominated China’s criminal justice system for too long. That type of mentality still has deep roots in China’s law enforcement institutions, but exposure of the many social costs associated with the overriding priority given to stability is leading the public to demand change. As Chinese authorities prepare to bring an end to RTL, and replace it with something new, these demands must be taken into account.

Non-Custodial Sentences Rise for Juveniles, Migrants Benefit Less

Supreme People's Court. Photo credit: Wikipedia

In March, the Research Office of the Supreme People’s Court published juvenile justice statistics for 2008‒2012, reflecting positive reforms in juvenile justice. During the period, China adjudicated 365,750 juveniles, down 4.5 percent from the previous five years. Meanwhile, the portion of juveniles receiving non-custodial punishments increased, reaching 42 percent in 2012 from 35 percent in 2008.

China added a juvenile section to its Criminal Procedure Law (CPL) last year including diversionary measures and codifying the principle of education first, punishment second. In 2011, the country amended its Criminal Law to recommend suspended sentences for youth who commit minor offenses.

Non-custodial punishments are crucial to help juveniles avoid re-offending, ensure their healthy development, and facilitate their positive interaction with the community. The United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) call for the least possible use of institutionalization, or custodial punishment, explaining that:

Little or no difference has been found in terms of the success of institutionalization as compared to non-institutionalization. … Moreover, the negative effects, not only of loss of liberty but also of separation from the usual social environment, are certainly more acute for juveniles than for adults because of their early stage of development.

The president of Guangzhou Intermediate People’s Court, Liu Nianfu, agrees that there is significant harm in institutionalizing juveniles who should receive non-custodial punishments. He sees the danger as a consequence of removing juveniles from society and putting them in close confinement with others who have come into conflict with the law.

In China, the most common form of non-custodial punishment is suspended sentence or reprieve. Suspensions or reprieves postpone the sentence for a specified period during which the defendant is required to submit to certain conditions—such as regularly reporting to a monitoring organization and obtaining approval for travel—in order to have the sentence withdrawn at the end of that period. Other types of non-custodial punishments include public surveillance and fines.

Migrants Benefit Less 

Although juvenile justice is meant to be impartial, migrant youth have been barred from equal access to non-custodial punishments in China. Shanghai and Guangdong have lower than average rates of juvenile non-custodial punishments, and courts in both regions have attributed this to higher proportions of migrants among juvenile defendants. For example, of juveniles tried in Shanghai in 2010, suspended sentences were given to 15 percent of non-locals, i.e., people without a Shanghai hukou (household registration), compared with 63 percent of locals. [1] 

There are many reasons why migrants are more likely to be incarcerated. The Criminal Law lists “expressing remorse” as one of the criteria for receiving a suspended sentence. While not theoretically discriminatory, courts commonly consider whether defendants return stolen property and provide financial compensation as an aspect of remorse thereby privileging wealthier defendants.[2] In 2011, the Juvenile Court Guiding Office of the Shanghai Municipality High People’s Court reported that migrant youth are less capable of returning stolen property or providing compensation since the property in question is often immediately expended and the youth themselves have fewer economic means.

Hukou, or household registration status, is important in determining non-custodial sentencing. Photo credit: Xinhua News

Some organizations in charge of monitoring individuals serving suspended sentences—police or grassroots organizations under the previous CPL and community corrections organizations under the revised law, effective January 1, 2013—limit their scope to people with local hukous, making migrants ineligible for suspended sentences, unless they are sent back to their hometowns. The prospect of relocation raises several issues including moving costs, the disruption of routine and social networks (especially if the juvenile has been living away from home for a significant period of time), and whether the juvenile will have suitable adult supervision. Moreover, according to Liu Nianfu, a solid understanding of the circumstances of a case is crucial to carrying out a tailored plan for rehabilitation. However, having a juvenile serve his or her sentence in a place other than where he or she committed the offense leads to an information disconnect where the implementers are less equipped to respond to the specific needs of the juvenile.

Another reason why migrant youth are not given suspended sentences is to account for what can become lengthy stays in detention. Migrant youth can be detained for months while their case is pending trial because they are more likely to lack the guarantor or funds necessary to post bail. According to the Shanghai high court, these prolonged detentions lead courts to issue custodial sentences whose lengths correspond to the amount of time juvenile defendants spent in detention to avoid the appearance of “excessive” punishment—even in cases where non-custodial punishments would have been applicable. The court goes on to note that this problem could be addressed by allowing community corrections organizations, defendants’ employers, or public welfare organizations to act as guarantors and by conducting speedier trials.

Making Progress

With growing awareness of the issue, Shanghai and Guangdong are working to boost access to non-custodial punishments for migrant youth. In Shanghai, the percentage of migrant juveniles receiving these punishments increased to 15 percent in 2010 from 9 percent in 2008. In Guangdong, non-custodial punishments for all juveniles (not disaggregated by hukou status) rose to 50.2 percent in 2011 from 10.9 percent in 2008. 

Last year, a member of the Shanghai No.2 Intermediate People’s Court published an article calling for equal sentencing for migrant youth.[3] The article uses the case of 17-year-old surnamed Shan to demonstrate how engagement from the defendant’s family, the judiciary, and the community can reduce institutionalization.

Shan’s parents had been working in Shanghai for seven years. He worked at a car factory and was convicted in a robbery case involving two victims, a few hundred yuan, and several mobile phones. Originally sentenced to 1.5 years’ imprisonment and a fine of 1,000 yuan, Shan successfully appealed the verdict and was given a suspended sentence due to several factors. The court strengthened cooperation between the district procuratorate and local community corrections organization to conduct a social investigation report. Members of the juvenile court visited Shan’s home and workplace to determine that he had a stable residence. Shan participated in reconciliation during which he showed remorse and offered financial compensation to the victims. Since Shan’s parents were in Shanghai and had applied for a temporary residence permit, he was eligible to participate in a local “help and education” (bangjiao, which is similar to probation) program, during which the court periodically evaluated his progress. Shan’s employer also agreed to continue his employment and undertake more rigorous supervision. This case demonstrates that increased collaboration can lead to the successful application of non-custodial sentencing, but given Shan’s ability to provide compensation and his relatively stable residency and work status, it is not necessarily applicable to most migrant juveniles.

Guangdong has addressed the issue by bolstering its policy framework with regulations for implementing non-custodial punishments in juvenile cases. Issued by the Guangdong High People’s Court, the regulations state that community corrections organizations can provide help and education to juvenile suspects and defendants who are not Guangdong residents but who regularly reside, study or work, or have family members in Guangdong.

Rather than referring generally to those with non-local hukous, which can include people from different cities or counties of Guangdong, the rules refer to non-Guangdong residents. That means that while a juvenile in Guangzhou, Guangdong’s provincial capital, with a Sichuan hukou need not be sent back to Sichuan to carry out a suspended sentence, a juvenile who has moved to Guangzhou from elsewhere in the province just might. In order to facilitate these types of movements, the Guangzhou Intermediate People’s Court has devised a new system of post-sentencing corrections plans. The system requires juvenile judges who issue suspended sentences to write corrections plans that are tailored to the circumstances of each defendant and submit them to community corrections organizations that carry out the help-and-education stage. In situations where migrant juveniles are sent back to their place of registered residence, these plans help community corrections organizations understand the juvenile’s needs, but relocating juveniles is not without problems. Removing a young person whose identity is still being formed from a familiar school, job, or group of friends presents a major transition that can either facilitate or complicate the reform process.

Despite ongoing problems caused by economic inequality and hukou status, the amount of collaboration involved in increasing access to non-custodial punishments among migrant youth in the immigration centers of Shanghai and Guangdong is significant. In order to realize the principle of education first as emphasized by the revised CPL, more broad-based attention must be paid to migrant juveniles to ensure that they benefit from forward-thinking juvenile justice reforms.

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1. 朱妙, 陈慧, 张世欣 [Zhu Miao, Chen Hui, Zhang Shixin], “非上海未成年人缓刑使用状况及对策” [Feishanghai weichengnianren huanxing shiyong zhuangkuang ji duice], 中国少年司法 [Zhongguo Shaonina Sifa], 2011(1):76. ⇑

2. Ibid. p 78. ⇑

3. 李振武 [Li Zhenwu], “对符合条件的非本地户籍未成年被告人应平等适用缓刑” [Dui fuhe tiaojian de feibendi huji weichengnian beigaoren ying pingdeng sheyong huanxing], 预防青少年犯罪研究 [Juvenile Delinquency Prevention Research], 2012(7). ⇑

Legal Education: Arbitrary Detention Doesn’t End with RTL

A legal education class in Gansu province, March 15, 2013. Photo credit: Gzxw.com.cn

Although much about China’s planned reform of reeducation through labor (RTL) remains uncertain, it seems quite likely that petitioning has been removed from the list of activities subject to RTL—or whatever new measure is chosen to replace it. On the surface, this looks like a victory for rule of law in China. For many years, individuals whose efforts to seek redress for grievances were deemed “abnormal” or “disruptive” faced being sent to RTL for one or two years without trial, legal representation, or effective means of appeal. However, even if petitioners no longer face RTL, the continuing imperative to “maintain stability” means that they still risk rights-violations through measures with even murkier basis in law.

One of these measures are the “legal education classes” that have been used in China for more than a decade. Like RTL, they provide local authorities with a highly flexible means of dealing with certain individuals whose behavior is considered to be socially disruptive but that doesn’t meet the criteria for criminal prosecution or public-order punishment. Originally targeted at members of Falun Gong and other “cult organizations,” use of these classes has been more recently expanded to include those who engage in persistent, disruptive, or mass petitioning activity.

For example, local authorities who believe that a person is planning to go to Beijing to petition can send him or her to a legal education class regardless of whether the person has taken any steps towards the capital. Compared with RTL, where the emphasis is on labor, legal education is primarily about “educating” attendees. Through a greater understanding of rules and regulations, participants are meant to be dissuaded from pursuing grievances through improper channels or pursuing matters that have officially been resolved.

Like RTL, this period of “education” is compulsory. But unlike RTL, which despite its problematic legal foundation is still governed by a set of national rules and regulations, legal education classes appear to be based on a patchwork of local measures enacted in response to political directives. In 2006, Jiangsu Province designed a regime of education targeting petitioners called the “Three Make Clears.” Through this system, participants were meant to gain clarity on “national, provincial, and county circumstances”; the relevant legal provisions; and the serious social harm caused by abnormal petitioning.

In some locations, legal education classes are held in fixed locations specially designated for the purpose. Other places hold classes in different venues depending on the number of “students,” which reportedly range from one or two to a dozen people.

According to one man sent to a legal education class in Jiangsu in 2007, local authorities in charge of petitioning “tricked” him into attending the class by summoning him to discuss a matter related to his grievance. Held in an abandoned school dormitory for more than 10 days, he claims that he and his “classmates” were denied basic personal hygiene like bathing or tooth brushing, were not able to change their clothes, and were unable to contact family members. Each day, local officials would come to the school to lecture the “students,” who were forced to stay in the school for an indeterminate period—a matter of days in some cases, and months in others—ultimately dependent upon their “performance.”

These deprivations of liberty are not implemented pursuant to any judicial decision and do not appear to be authorized by any duly enacted national legislation. There is no channel through which to challenge a decision to be “enrolled” in legal education. In other words, the system of legal education classes clearly violates China’s constitution and obligations under international human rights law.

But legal education classes continue to play an important role in China’s “stability preservation” system. In Hebei Province’s Fengning Manchu Autonomous County, situated between Beijing’s northern suburbs and Inner Mongolia, plans were recently announced for establishing a legal education school. Though the plans do not reveal much about what happens at the institution, the involvement of a broad variety of law enforcement and social service agencies appears to reflect the recent shift towards a more comprehensive approach to “social management.”

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Implementation Plan for Establishing a Legal Education School: click to expand

Fengning Manchu Autonomous County
Implementation Plan for Establishing a Legal Education School

The Fengning Manchu Autonomous County Legal Education School is a base established to resolve petitioning problems and carry out legal education for targeted petitioners from the county who either go to Beijing [to petition] or present the danger of going to Beijing to engage in abnormal petitioning. It [provides] centralized education for petitioners and an effective method for guiding them to resolve their problems through normal channels and ultimately preserving the stability of the petitioning [system]. In order to better realize the functions of this base for education and training and create beneficial conditions for stabilizing petitioning in the county, this implementation plan has been specifically drafted.

I. Mission

To set up a legal education school to strengthen legal education and publicity. To centralize resolution of the problems of a group of targeted persons who engage in persistent, disruptive, or long-term petitioning and who have the potential to go to Beijing or who have already gone to Beijing or the provincial capital to engage in abnormal petitioning. To employ all effective measures to achieve ultimate resolution of each case or matter and bring an end to each complaint and petition, in order to ensure that the work goal of the “six guarantees ” can be realized.

II. Content of Study

The [county] justice bureau shall take responsibility for inviting personnel to lecture people attending the [legal education school] from bodies such as the people’s congress committee on internal and judicial affairs, the government legal affairs office, the [local] people’s political consultative conference committee on social and legal affairs, the justice bureau, and the bureau of letters and visits on subjects such as the Regulations for Letters and Visits, the Public Order Administration Punishment Law, the Land Law, and the Policy on Rural Industries and arrange for enrollees to study such things as the relevant laws and policies, implementation regulations, and complaint procedures.

III. Organization and Leadership

A leadership small group is to be established for the Fengning Manchu Autonomous County legal education school, to be headed by county party committee standing committee member and politico-legal committee secretary Comrade Liu Haiping and with justice bureau chief Comrade Han Yiwen taking the leading role; this group takes full responsibility for all details of work at the school. The public security bureau, procuratorate, court, bureau of letters and visits, health bureau, finance bureau, and other relevant departments participate jointly and assist with the work of the school in accordance with their respective competencies. Of these, the public security bureau, justice bureau, bureau of letters and visits, and health bureau shall each arrange for a member of their [leadership] teams to direct classes at the school.

IV. Personnel Arrangement

The justice bureau is requested to assign six employees; the bureau of letters and visits is to assign three employees; the public security bureau, procuratorate, and court are to deploy 12 police officers [in total]; the health bureau is to assign two hygiene and epidemic-prevention workers; and for each student, two accompanying persons are to be deployed from [his or her] township, town, or unit. Beyond this, it will be necessary to hire five logistics service employees.

V. Related Responsibilities

1. The justice bureau is responsible for drawing up a corresponding work plan and a system and discipline [measures] for workers; responsible for the routine work of study classes such as organizing the study records and verifying the identities of enrolled persons, handling formalities for enrollment and discharge, and making arrangements for facilities; and responsible for the education and study of enrollees and arranging the content of the curriculum.
2. The public security bureau is responsible for security and maintaining order within the legal education [school] and in the surrounding area. There should be a guaranteed contingent of 12 police officers (deployed from the public security bureau, procuratorate, and court) arranged to be on long-term duty at the school. They should also assist employees of the [school] to carry out such work as security screening and one-by-one inspection of persons participating in the courses.
3. The bureau of letters and visits is responsible for coordinating with the relevant departments and township and town [governments] to resolve the problems of targeted petitioners participating in the courses.
4. The health bureau is responsible for work related to hygiene and medical treatment for the legal education classes. Two health workers shall be permanently assigned to work at the [school] with supplies of routine and emergency medicines and essential medical equipment. They are responsible for health checks and routine medical treatment of enrollees. The epidemic-prevention unit shall carry out advance inspections of the school and be responsible for monitoring food service and hygiene and epidemic-prevention work in order to prevent the occurrence of food poisoning and other such incidents.
5. The finance bureau is responsible for ensuring funding for the school.
6. Township or town [governments] or relevant departments are responsible for transporting targeted petitioners to study at the school. They should strictly control the use of study classes to ensure that those sent to study classes are targeted people whose problems have been satisfactorily resolved but who insist on carrying out persistent or disruptive petitioning or who organize mass petitioning and those who present serious risk of going to Beijing to carry out abnormal petitioning. Township or town [governments] or departments shall assign two employees per enrollee to be responsible for accompanying the enrollee and keeping continual track of his or her progress, adjusting his or her attitude, and strictly preventing the occurrence of problems such as self-mutilation, suicide, or flight.

VI. Related Institutions (Attached)

Establish and improve rules and regulations. Establish a System of Employee Work, a System of Security Personnel Work, a System of Health Personnel Work, and a System of Accompanying Personnel Work.

Chinese Source（原文）: 丰宁满族自治县法制教育学校建设实施方案 发布日期：2012年5月30日 http://wwww.fn.gov.cn/sfj/ShowInfo.asp?InfoID=3001 Click on icon to expand

丰宁满族自治县
法制教育学校建设实施方案

丰宁满族自治县法制教育学校是针对全县进京或有进京非正常上访隐患的重点信访人员建立的解决信访问题和进行法制教育的基地，是集中对信访人员进行教育,引导其通过正常途径解决问题、最终维护信访稳定的有效手段。为更好的发挥教育培训基地功能，为做好全县的信访稳定工作创造有利条件，特制订此实施方案。

一、目标要求

通过开办法制教育学校，加大法制教育宣传力度，要集中解决一批有进京非访苗头或已经进京赴省非访的重点缠访、闹访和老上访人员问题，要采取一切可行措施，最终实现案结事了，息诉罢访，确保实现“六个确保”工作目标。

二、学习内容

由司法局负责，聘请人大内务司法委、政府法制办、政协社会法制委、司法局、信访局等单位工作人员对入班学员讲解《信访条例》、《社会治安管理处罚法》、《土地法》、《农村产业政策》等课程，组织他们学习相关法律政策、法规细则、申诉程序等方面知识。

三、组织领导

成立丰宁满族自治县法制教育学校领导小组，由县委常委、政法委书记刘海平同志任组长，由司法局局长韩亦文同志牵头，全权负责学校的各项具体工作。公安局、检察院、法院、信访局、卫生局、财政局等相关部门共同参与，依照职责协助做好学校各项工作。其中，公安局、司法局、信访局、卫生局各安排一名班子成员在学校带班指挥。

四、人员安排

要求司法局安排6名工作人员，信访局安排3名工作人员，公检法抽调12名警力，卫生局安排2名卫生防疫人员，每名学员由乡镇或部门抽调两名陪护人员。除此以外，还需雇5名后勤服务人员。

五、相关职责

（一）司法局负责制定相应的工作方案及工作人员纪律和制度，负责做好进班人员的学习记录整理、身份核实、进出班手续办理、房间安排等学习班日常事务工作，负责进班人员学习教育、课程内容安排。

（二）公安局负责法制教育学习班内部及周边的安全保卫和维持秩序工作。要保证安排12名警力（从公安局、检察院、法院抽调）长期值班，同时协助学习班工作人员做好进班人员的安检、排查等工作。

（三）信访局负责协调相关部门、乡镇解决进班重点信访人员的问题。

（四）卫生局负责法制教育学习班的医疗卫生等相关工作。要委派2名医务人员常驻学习班，配备常用及应急药品和必备的医疗器具，负责对入班学员体检和日常医护工作；防疫部门要提前到学习班进行检查，负责监餐和卫生防疫工作，防止食物中毒等事件发生。

（五）财政局负责学校的资金保障工作。

（六）各乡镇、有关部门负责输送重点信访人员进行学习。严把进班人员关口，要真正把那些问题已解决到位，但仍坚持缠访、闹访、组织串联集体上访并有重大进京非正常访隐患的重点人员送到学习班。各乡镇、部门要为每名进班学员安排2名工作人员、负责对学员进行陪护，随时掌握学员的动态，调整学员心态，严防自残、自杀、出走等问题的发生。

六、相关制度（附后）

建立健全规章制度。建立《工作人员工作制度》，《保卫人员工作制度》，《医护人员工作制度》，《陪护人员工作制度》。

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