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Über den Tag hinaus

Dr. Thomas Weyrauch
Important Aspects on Human Rights in the People´s Republic of China

Speech at the 10th European Country of Origin Information Seminar in Budapest

(1st - 3rd December 2005)

Ladies and Gentlemen,

Since the foundation of the Communist Party of China (CCP) in 1921, human rights have been violated in an incredible dimension. According to reliable estimations, up to 25 million people had been killed through Mao Zedongs orders before he rose to power in 1949. After having settled the People´s Republic of China (PRC), Mao and his followers became responsonsible for further 35 million Chinese killed by demozides, for nearly the same number of famine victims and for 3.4 millions of war deaths. Thus the total estimated figure of victims reaches nearly 100 million.

The situation changed in 1976. Despite the fact that Deng Xiaoping was one of the radical henchmen during the fifties and sixties, the new leadership of the People´s Republic of China tried to terminate the lawless chaos. China got new institutions and the CCP-rulers re-established a legal system. So every citizen was enabled to know his rights and prohibitions.

This theoretical stipulation of granting the rule of law was doubtless a great progress in Post-Mao-China. Not only the Chinese themselves, but also foreign leaders, journalists, China-experts and even tourists were impressed by such a concept, which included the Open-Door-Policy and the transformation of economy.

Since 1976 the People´s Republic of China signed a lot of important international declarations, treaties and conventions, also concerning the matter of human rights. Those are for instance:

The Charter of the United Nations (1945). In 1971 the Republic of China had to leave the UN and give it´s seat to the People´s Republic of China. The PRC became in this way one of the five members of the UN Security Council and as a member-state of the UN she accepted the civil rights noted in the preamble of the Charter, which means the personal dignity and worth, justice as well as the commitment to international law. In the same way China is fully bound to Article 1 of the Charter in which the member states promote and encourage the respect of human rights and the fundamental freedom for all, regardless of race, gender, language or religion.

The Universal Declaration of Human Rights (1948) passed by the General Assembly of the UN on Dec. 10th 1948, had been accepted by the PRC after taking the seat of the Republic of China, but till today the PRC regards this legal norm as ‘soft law’. The Chinese position about the legal character of the Universal Declaration of Human Rights has been accepted by many states and experts of international law, because there is – as the term shows - just a declaratoric, but not a contractual character. That means, no subject of international law can take a legal action against a state for it´s act of having violated the Universal Declaration of Human Rights. The Declaration protects religious (Art. 2) and political convictions (Art. 18). It prohibits torture (Art. 5) as well as arbitrary arrest (Art. 9) and demands for independend courts (Art. 10) and the presumption of innocence (Art. 11). Furthermore there is a demand for freedom of expression, the right of assembly, the freedom to form associations and the voting right (Art. 19, 20 and 21).

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984)
This convention is based on its preamble on article 5 of the Universal Declaration of Human Rights and article 7 of the International Covenant on Civil and Political Rights of 1966. The signatory states are obliged to take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under their jurisdiction and should not accept exceptional circumstances as a justification of torture.

Despite the fact that the PRC signed the Convention against Torture, it doesn´t recognize the competence of the Committee against Torture as provided in article 20 of the Convention. The Chinese government also doesn´t consider itself bound to the paragraph I of article 30 of the Convention, in which disputes between states must be referred to the International Court of Justice.

Convention relating to the Status of Refugees (1951)
The Geneva Convention of 1951 was signed together with the New York Protocol relating to the Status of Refuge (1967) by the PRC in 1982, but has not been ratified yet. Chinese ministries are preparing for an implementation as national law and for the ratification. After World War II the 51-Convention and the New York Protocol became worldwide the most important legal bases of recognizing and receiving foreign refugees. So China´s ratification would be an important milestone in handling the refugee problem.

International Covenant on Economic, Social and Cultural Rights (1966)
In 2000 China became a signatory state of the Covenant, accepting the right of self-determination of peoples as well as the guarantee of the state parties to protect the family, health and education. The Covenant fosters human rights and a democratic society. But the ratification of China excludes the duties of article 8, which allows the foundation of independent trade unions.

International Covenant on Civil and Political Rights (1966)
This Covenant prohibits unlawful deprivation of liberty, torture or compulsory labour, and emphasizes the right of self-determination of peoples.

The PRC signed this Covenant in 1998, but not yet ratfied it. The ratification should be prepared by a Chinese working commission. China claims, that in preparation of the Covenant on Civil and Political Rights the whole Chinese legal system has to be revised. In order to reach this goal, China has sought for the cooperation and assistance of the European Union.

Convention on the Right of the Child (1989)
China ratified the Convention in 1992 and accepted a lot of regulations for the benefit of children. But the PRC made reservations that it would fulfil its obligations provided by article 6 of the Convention under the prerequisite that the Convention accords with the provisions of article 25 concerning family planning of the Constitution of the People's Republic of China. So the Convention shouldn´t oppose the One-Child-Policy.

Convention on the Elimination of All Forms of Discrimination of Women (1979)
A reservation about the One-Child-Policy was made during China´s ratification in 1980, that the PRC does not consider itself bound to the paragraph 1 of article 29 of the Convention in referring a dispute to the International Court of Justice.

Three other documents of international law on human rights of lesser importance in the view of foreign countries towards China are as follows:

International Convention on the Elimination of All Forms of Racial Discrimination (1966)
Ratified by the PRC in 1981.

International Convention on the Suppression and Punishment of the Crime of Apartheid (1973)
Ratified by the PRC in 1983.

Convention on the Prevention and Punishment of the Crime of Genocide (1948)
Ratified by the PRC in 1983.

To review China´s principles on human rights in international legal documents it reveals that the country´s representatives do not accept any control or legal judgement from other states or international organizations.

The Chinese national law also stipulates to respect human rights in the constitution, in the Criminal Law, in the Criminal Procedure Law, the Administration Procedure Law, the Lawyer Law and other related regulations.

The Criminal Law prohibits torture (art. 247, 248) and maltreatment as well as arbitrary arrests, but provides the death penalty for many offenses (art. 48 pp.). Besides other laws the death penalty is subjected to 68 criminal acts.

Another punishment can be a limited or lifelong imprisonment (art. 45 pp.). Persons incarcerated in confinement centers are classified in five major types of these serving in prisons and those serving in Centers for Re-education Trough Labour. Persons incarcerated in prisons, called Jianyu, are as follows:

1) inmates given death sentences with a two-year suspension,
2) those sentenced to lifelong imprisonment,
3) prisoners, who must serve at least 10 years in prison before being released,
4) foreign prisoners
5) female prisoners.

According to Chinese Government sources the rest of the prisoners given incarcerative sentences are held in the Reform Through Labour or Re-education Through Labour Teams.

The Re-education Through Labour system is nearly as old as the PRC and is divided into the Laodong gaizhao dui, abbreviated Laogai, for prisoners formally given a sentence by a criminal court, and the Laodong jiaoyang suo, abbreviated Laojiao, after the sentence of an administrative body called Committee for Re-education Through Labour for committing minor offenses such as petty theft, prostitution, and drug use for periods up to four years.
According to art. 46 § 2 prisoners have to work to accept education and reform through labour.

At first sight the judiciary system seems to be similar to that of other countries with lower, intermediate and higher courts.

The Lower Courts are responsible for civil disputes and misdemeanors that do not need trials in counties, cities without administrative districts, or administrative districts of cities. They also guide and supervise the work of the People's Arbitration Committees.

In prefectures, in cities directly under provinces and in districts of the municipalities directly under the central government Intermediate Courts are responsible for cases of national security, criminal cases that may involve life imprisonment or the death penalty, criminal cases committed by foreigners or cases involving Chinese citizens violating the lawful rights and interests of foreigners. They handle matters transferred or appealed from lower courts.

Higher Courts are set up in provinces, autonomous regions and municipalities directly under the central government and are responsible for criminal, civil and administrative cases that intermediate courts deem to be of a serious nature, after the Intermediate Court requested that the cases be transferred. They try criminal, civil and administrative cases of major proportions and complications under their jurisdiction, as provided by law, the first-hearing cases transferred by lower courts, cases appealing or protesting the verdicts and decisions made by Lower Courts. They also review first-hearing cases involving the death penalty ruled by Intermediate Courts where the accused renounces the right to appeal.
The Supreme Court located in the national capital as the main trial organ of the state is responsible for appeals, cases of national security, criminal cases that may involve life imprisonment or the death penalty, criminal cases committed by foreigners or cases involving Chinese citizens violating the lawful rights and interests of foreigners.

In reality there is not only a hierarchy of public prosecutors analogous to the hierarchy of courts, but also an influence of different levels of the Communist Party of China to the trials and decisions of the parallel court level. So the CCP-cadres of a city may manipulate cases of an intermediate court in the same matter-of-course as the Polit Bureau does in the cases of the Supreme Court.

Mo Shaoping, a notable defense attorney, critizised the situation of lawyers as extremely difficult during his speech when he visited the Yale Law School in October 2005. According to his informations 500 lawyers had been arrested for working on criminal cases. Only 30 percent of all Chinese criminal cases had a defense lawyer at court. Mo summarized the difficulties for lawyers as difficulties in meeting the litigant, in obtaining documents, in investigating and obtaining evidence, in bringing witnesses to court, to complete the case in time, of balancing the power of certain organizations and the lack of a privilege to refuse to give evidence.

Mo said: “The chief judge of China’s Supreme Court Xiao Qiang emphasized the strengthening of the CCP’s leadership over China’s legislative system and that it´s role is forever cemented.”

Hence, even the human rights stipulations of the Chinese leadership in this context seem to be tools to control the society and to deprive it from personal and human rights.

While the former capitalist class, persons with foreign contacts and non-opposition bound intellectuals are not the target of the CCP anymore, there are special groups in today´s China living in a situation of uncertainty, of discrimination and of persecution.

Members of ethnic minorities in this state, who organize themselves to
regain their stripped national independence or real autonomy face severe
punishment, even without any intimidation. Especially Tibet, Eastern Turkestan and Inner Mongolia are so-called Autonomous Regions without autonomy and stand under dominance of Han-Chinese in the matters of political force and of economic strength. On the other hand a persecution of such ethnic minorities in the meaning of a social group can´t be supposed, as long as there are members of those minorities living an accordance with the CCP and being members of the party or of state organs.

Other problematic categories are philosophic, religious or spiritual societies and groups without any organization. As long as groups are organized as religious societies and registered in the Offices on Religious Affairs under the Ministry of Public Security or in lower hierarchy levels of the Offices of Public Affairs, there is control, but not a persecution of the registred society. On the contrary, in cases of unregistered religious or spiritual groups low tolerance or persecution are the guidelines of politics. Some examples are catholics loyal to the Holy See, protestant
house-churches or Falun Gong practicing people. Their groups are regarded as
'cults' by the authorities, watched by the police, secret services and the 'Anti-Cult-Association' and threatened to have severe punishment on their followers. Also the medias have to publish reports and comments about the dangerous character of the so-called 'cults', as it happened after a self-immolation of alleged Falun Gong-practicing persons in front of Beijing´s Tian´anmen-square. Despite Western journalists had research about those people, who burned to death, and found out that they had nothing to do with Falun Gong, the Chinese media still argue that the society had to be protected against such an evel cults, which immolate own followers. While the TV-cameras could view for a longer time the alleged Falun Gong-followers burning to death, it took only one minute to arrest foreign Falun Gong practicing adherents at the same place.

Followers of such groups defined as cults in the PRC as well as in foreign country remain the target of persecution such as kidnapping, arrest and violence. Because of the intensity and the duration of persecution they could be regarded as 'social group', as defined in the Geneva Convention.

The political system of the PRC is based on the leading role of the CCP. Other tolerated smaller political organizations do not oppose the leading party. So there is no legal opposition in the state. As consequence of this matter of fact the party rejects every attempt to build up democratic structures or to found new parties, craft unions or farmers associations in opposition to the CCP and persecutes their members. Furthermore, the authorities try to destroy opposition movements by force, by infiltration and by controlling information channels. A meaningful danger to the PRC and the leading CCP is the existence of the internet, which can hardly be controlled by an army of censors. If the works of cyber-dissidents are uncovered, most of their authors are given incarcerative sentences. But the communication via phone, pager or internet can´t be interrupted easily, which is proved by many events reported to foreign countries and inside China.

Most of the results of grassroot elections on the countryside are settled by the local CCP-cadres, but meanwhile they became the reasons of violent unrests.

Inside the CCP is just a little space for dissent as well, as long as the members are not regarded as organized faction.

The freedom of property is limited since the communist state has been founded. Nowadays citizens of the PRC are able and allowed to become billioneers, but thousands of owners of tiny houses were expropriated or dispossessed by authorities order and club beating mobsters to dislodge the dwellers, only because there was announcement of phantastic investment by a real estates company earlier. In big cities as well as on the countryside forced dislocations are not unusual. Well known examples are dislocations for the Olympic Games in the capital city and in the region of the Three-Gorges-Dam.

Couples have to apply for a permission to have children. Only in some wealthy cities, such as in the Guandong Province, or on the countryside couples are exceptionally allowed to have two children. In case of a contravention the One-Child-Policy discriminates parents and their children.

Being held responsible for unauthorized pregnancies parents can be punished
by fines of local authorities or even loose their job, house or futher property. The provinces Anhui, Hebei, Heilongjiang, Hubei, Hunan, Jilin, and Ningxia require the termination of pregnancy if the pregnancy violates the family-planning law. The regulations of Fujian, Guizhou, Guangdong, Gansu, Jiangxi, Qinghai, Sichuan, Shanxi, Shaanxi, and Yunnan have other punishments for the contraventions. It is very common not only to terminate out-of-plan pregnancies, but also to sterilize one of the parents.

The freedom of movement increased after the old hukou-system, that means the system of registration of all familiy members, has been relaxed after having a more mobile labour force. It is a fact that about 150 Million people are migrants within the boarders of the country, nevertheless any people are still obliged to have the permission of their working unit or the local authorities to change the residence.

As some decades ago police, militia and secret services violate the constitutional freedom of assembly and association by using force against demonstraters and critical groups. While protests numbered a few thousands per year in the Ninethieth, the number increased to 58,000 in the year 2003. The protests rose to 74,000 in 2004 with a death-toll of 1,740 people. This figure shows that the situation seems to be much worse than on the eve of the year 1989. Therefore the country cannot regarded as a stable one.

As long as speakers in private discussions did not show opinions of the opposition in public, the freedom of expression continued to expand. But such controversial discussions remain under surveillance by authorities. On the one hand critizing the political system can be tolerated, on the other hand the reason for harsh persecution.

The methods of human rights violations are various. China has got an interesting legislation on human rights with a lot of prohibitions, but the reality is very often the opposite. In many cases of human rights violations it could be proved that the state and it´s political system was the cause of human rights violations, such as the persecution of Falun Gong or the disappearance of dissidents.

Several times a year, regularly at spring festival and in autumn around the first of October, campaigns against crime are also targeted against opponents. Arrested persons have difficulties to convince the authorities of their innocence and to get in contact to lawyers. This problem carries on in the denial of fair public trial, that often occurs. Despite legal prohibitions of the penal code and the criminal procedure law many arrested people are victims of torture and maltreatment. Alone in one campaign against crime like "
Yanda" or "Strike hard" 4,000 people were executed after summary trials. The total number of executions is estimated of 15,000 per year. Extrajudicial killings in custody due to the practice of torture by the police have been reported, but no statistics are available. Arbitrary deprivation of freedom is still very common and only very seldom a matter of investigation.
According to the International Centre for Prison Studies at the King´s College in London there were 1,548,498 sentenced prisoners in December 2003 in the PRC. In comparison to the Chinese population 118 per 100,000 citizens were incarcerated. China argues that this number was far lower than the US-incercerated of 701 per 100,000 population. But human rights observers doubt the truth of this figure. They believe that the actual number of Chinese being incarcerated was much higher, because of persons, who are not in prisons but in Re-education Through Labour Centers.
The Re-education Through Labour has been critized since a long time as a violation against article 9 (4.) of the International Covenant on Civil and Political Rights, which provides that "Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that the court may decide without delay on the lawfulness of his detention..." But please remember: China did not ratify the International Covenant on Civil and Political Rights!

Furthermore critics say, the re-education process was arbitrary. It removes the presumption of innocence, involves no judicial officer, provides for no public trial, and makes no provision for defense against the charges.

According to governmental sources China has a total of 746 compulsory rehabilitation centers, 168 treatment and re-education-through-labor centers. Those centers officially care about criminals being mentally ill or drug addicted. Additionally there were 20 centers for the psychiatric treatment of prisoners. One famous inmate of such a psychiatric treatment center was the dissident Wang Wanxin, who has been released a few weeks ago and lives in Germany. Without insanity he was given psychopharma for the time between 1989 until 2005. Others belong to Falun Gong, which is labeled by the Chinese propaganda as a reason of mental illness.

A Falun Gong practicing lady, Ms. Xiong Wei, who lives now in Germany after she was held in different Chinese detention centers told me about her custody conditions. Having been beaten and threatened in the imprisonment on remand she was transferred to a women detention center, where she had to work under pressure from early morning till late after midnight and got only two meals per day and corporal punishments. She was also maltreated in so-called re-education sessions outside the prison. She wasn´t allowed to drink and to go to the toilet for longer times. During her menses she couldn´t get sanitary pads, so her trousers were blood-stained. In the night she had to sleep on a wooden board together with other female prisoners and did not have space to move or to turn over. A special corporal punishment was to stay on a painful position for several hours or to practice a large number of knees bending.

Instead of punishing such officers responsible for torture and maltreatment, they got the priviliges of impunity and rewards.

Voller Text veröffentlicht auf der Website des United Nations High Commissioner for Human rights http://www.unhcr.org7cgi-bin/texis/vtx/home/opendoc.pdf?tbl=RSDCOI&id=441d8c64

Dr. Thomas Weyrauch/Germany

Religious Persecution in the People´s Republic of China
Speech to the “Conference on Religious Intolerance in China”
in the European Parliament
sponsored by Mr. Edward McMillan-Scott, Vice President of EP and
Mr. Simon Coveney, Human Rights spokesman of EPP
November 28th, 2006

___________________________

Mr. Vice President McMillan-Scott, Mr. Coveney, distinguished Ladies and Gentlemen,

China has a long-standing concept of human rights which is rooted in ideas of famous philosophers and religions. (1)

This tradition is still a part of the Chinese culture and should be expressed by legal means. The Chinese government declares that religious adherents can take part in various religious activities in temples, mosques, churches and individual residences. There should be 85,000 places of worship across the country, 300,000 clergymen, over 3,000 religious organizations, and 74 religious seminaries run by those organizations to train clergymen. (2)

In terms of international law the People´s Republic of China (PRC) actually regards religious freedom only by accepting the Universal Declaration of Human Rights (3) and the International Covenant on Economic, Social and Cultural Rights (4). China has not yet ratified the International Covenant on Civil and Political Rights (59, which would bind the Chinese authorities on religious tolerance as a hard law. Therefore the PRC is able to claim itself to be merely a signatory state of soft laws concerning religious freedom. That means in all cases of critizism on the human rights situation in China, the country has no international duties on contractual character to fulfill. In this way China will never be in the position of a defendant. (6)

The preamble of the Chinese constitution declares the Communist Party of China (CCP) to be the leading factor of the Chinese state. Although the Chinese state is dependent in this way on the atheistic CCP, the constitution and other laws stipulate religious freedom. (7)

To enjoy religious freedom, the believers have to join organizations, which are to be registered and controlled by a special authority, the State Administration for Religious Affairs. This body officially protects the five beliefs of Buddhism, Catholicism, Protestantism, Daoism and Islam, as long as they are organized under state control within the China Buddhist Association, the Chinese Catholic Patriotic Association, the protestant Three-Self Patriotic Movement of China and the Protestant Christian Council, the Chinese Daoist Association and the Islamic Association of China. But even the protection of a minimum of religious practice at home doesn’t really exist. (8)

China’s government replies in harsh words to American critics on this matter as follows: “The US report talked nonsense about 30 million Chinese people carrying out their mass at ‘home churches’. In fact, there are no ‘house churches’ in China. Christians usually organize religious rituals in families, which is only called a house meeting. Christians who take part in the house meeting also join congregations in churches, except for those who are too old or weak. House meetings were just a supplement to church meetings.” End of the quotation. The Chinese government finished the reply by stating that it respects those house meetings and would never intervene. (9)

Ladies and Gentlemen, the opposite of that Chinese governmental eulogy is the truth:

Since many years house churches are forcibly closed and their members detained. If their application to register their community as religious organization is rejected, they do not have legal protection. The same happens to those believers who refuse to apply for registration. (10)

In connection with alleged religious freedom it seems contradictory and even ridiculous that the frame conditions for religious activities are prescribed by an atheistic state under an atheistic leadership of an atheistic party. Furthermore this leadership even defines the character of a legal religion as well as the character of heresy. Religious or spiritual groups excluded from the privilege to be recognized by the state are labeled as ‘xiéjiào’, which means “evil cults”. In order to hinder such societies, the Chinese Anti Cult-Association was founded under the supervision of the Beijing-based Institute of Science and Technology. (11)

Of course, the local authorities may tolerate some practices of folk religions, such as prophecy or palmistry, while other popular practices are forbidden as ‘evil cults’. (12)

It is the spiritual movement Falun Gong, a method of self-cultivating based on Buddhist and Daoist elements, which was first fostered by the Chinese state in the Nineties and then labeled as “sect” and “evil cult” in 1999. Practicing and promoting Falun Gong or other cultivation methods became an illegal act. Without having a legal basis of the constitution or of other laws a department of the Central Committee of the CCP was founded, the Bureau 610. If I now mention that the Bureau 610 is enabled to give directives to police authorities and offices of public affairs, I just want to emphasize that it is an office of the leadership of the party. The only task of the Bureau is to persecute peaceful Falun Gong adherents. (13)

In 2004 the government announced a shift of paradigm by limiting control over religion. In fact, the new so called ‘Regulation on Religious Affairs’ did not afford greater religious freedom. What kind of greater religious freedom do the Chinese people enjoy now? According to the regulation the Party’s United Front Work Department still influences the work of the Administration of Religious Affairs of different levels. Still the faithfuls have to apply for a registration of their group and to meet all the political conditions. Not the religious society itself is responsible for the appointment of the religious personnel like priests, monks, nuns etc., but the administration of townships, counties, provinces or of the Central Government influenced by the CCP. In cases of violations the regulations also provide administrative punishments like fines or detention. (14)

In the same year 2004 a new office, the ‘Central Bureau for the Work on Religious Affairs’, was established. It published documents, which forbade members of the CCP to join religious groups secretly. The document reports it was a matter of fact that religious people were working and gaining power within the party, the state administration and the jurisdiction. Such an infiltration was provoking protest movements. (15) Another document of this office prohibits religious activities and ceremonies in universities. Teachers and students, who are member of the CCP and of a religious society as well, will be expelled from the party. This means a threat for their career. (16)
The legal conditions for the religious life in the People´s Republic of China infringe the international respected human rights standards. The reality of millions of believers is even more serious. While officers of an atheistic state became representatives of religious bodies, who tell stories about religious freedom in China, the daily activities of banned religious and spiritual groups have to be carried out in underground. One example: What must Christians experience when they assemble secretly in house churches? Reports show that participants of underground masses were surrounded by policemen, who beat and arrested non-violent members of those churches. During their detention many of the Christians were tortured. (17)

To take another example of the Islamic people in Western China: According to the ‘Regulation on Religious Affairs’ Muslims will be fined, if they have a Hajj pilgrimage to Mecca without the government’s authorization. (18)

The Falun Gong practitioners presently have to suffer much more than other adherents of persecuted groups in China. Foreign journalists, like Philip Pan of the Washington Post or Ian Johnson of Wall Street Journal, could prove allegations of torture and killings of Falun Gong practitioners since 1999. It is reported that more than 1,000 Falun Gong practitioners have been killed after being atrociously tortured. (19)

Allegations of organ harvesting from the body of killed Falun Gong adherents seem to be true. (20)

The religious persecution is very often combined with sexual violence like raping or maltreating the genitals with electric shockers on detained female Christians of house churches, Tibetan nuns and Falun Gong practitioners. (21)

Those methods of persecution have been checked by Manfred Nowak of the United Nations´ Human Rights Commission, the special investigator on torture, who visited China last year and found that torture, though officially declared illegal since 1996, remains widely in use across China. (22)

In summary, one can say that the People´s Republic of China can be legally distinguished from countries like Myanmar (Burma) or the Democratic People´s Republic of Korea (North-Korea) by the factor that there is legislation on religion, but on the other hand China has a poor human rights record including a very limited freedom of religion. Until today religious activities are not protected. Socalled ‘cults’ are outlawed. Their adherents face brutal persecution. Therefore I want to point out that the situation of the believers in the People´s Republic of China is far from being satisfactory and indeed no indication for religious freedom.

1 For an extensive explanation see e.g. chapter “Menschenrechte in der chinesischen Philosophie” (Human rights in Chinese philosophy) in my book “Gepeinigter Drache – Chinas Menschenrechte im Spätstadium der KP-Herrschaft” (Anguished Dragon – China´s Human Rights in the Late Stage of CCP-Rule). 2nd Edition Heuchelheim/Germany (Longtai) 2006, pp. 10.
2 Embassy of the People´s Republic of China in the United States of America, http://www.china-embassy.org/eng/zt/zjxy/t36496.htm.
3 Article 2 and 18. General Assembly resolution of Dec. 10th, 1948.
4 Office of the United Nations High Commissioner for Human Rights, http://www.ohchr.org/english/countries/ratification/3.htm.
5 Office of the United Nations High Commissioner for Human Rights, http://www.ohchr.org/english/countries/ratification/4.htm. China has established a working commission to revise the constitution and other laws for conformity with the International Covenant on Civil and Political Rights. The PRC has asked the European Union for support and cooperation, see Xinhua Nov. 20th, 2000; http://mail.fsfeurope.org/pipermail/wsis-euc/2006-January/000686.html; www.cnn.com/2000/ASIANOW/east/11/21/rights.china; Office of the United Nations High Commissioner for Human Rights: 4. International Covenant on Civil and Political Rights, http://www.ohchr.org/english/countries/ratification/4_1.htm.
6 That legal position is disputed.
7 Constitution, art. 36; Regional Ethnic Autonomy Law, art. 11; Education Law, art. 9; Criminal Law, art. 251 (infringement to the freedom of religious belief).
8 Congressional-Executive Commission on China: Annual Report 2006, Washington 2006, pp. 79, 80.
9 Embassy of the People´s Republic of China in the United States of America, http://www.china-embassy.org/eng/zt/zjxy/t36496.htm-
10 Congressional-Executive Commission on China: Annual Report 2006, Washington 2006, pp. 79, 80.
11 Kupfer, Kristin: „Geheimgesellschaften“ in der VR China: Spirituell-religiöse Bewegungen seit 1978 – Entstehung, Entwicklung und Interaktion mit dem Staat, www.chinafokus.de/wissenschaft/bruehlertagung/3kupfer/fussnoten.php; Website of the Anti-Cult Association, www.anticult.org.
12 China aktuell, July 2002, p. 734.
13 World Organization to Investigate the Persecution of Falun Gong, Investigation Report, p. 47 ff.
14 Congressional-Executive Commission on China: Annual Report 2006, Washington 2006, pp. 79, 80.
15 Malek, Roman: Marxismus und Atheismus versus Religionsfreiheit, In: China heute XXIII (China-Zentrum: St. Augustin/Germany 2004), No. 6 (136), pp. 195.
16 Malek, Marxismus und Atheismus versus Religionsfreiheit, p. 197.
17 One example is the persecution of members of the Church of Southern China, see China aktuell, October 2002, p. 1120. Their priest Gong Shengliang has been tortured in his prison in Jingzhou City in Hubei Province. His death sentence has been revised. Amnesty International, Urgent Action June 11th, 2003; Spiegel Online August 16th, 2005, http://www.spiegel.de/panorama/0,1518,369287,00.html.
18 Regulation on Religious Affairs, Art. 51 Congressional-Executive Commission on China: Annual Report 2006, Washington 2006, p. 82.
19 Falun Gong Human Rights Working Group: The Falun Gong Report 2003, pp. 91; Falun Dafa: A Witness to History.p. 31 f.
20 Matas, David/Kilgour, David: Investigation Report into Allegations of Organ Harvesting of Falun Gong Practitioners in China, July 6th, 2006, http://www.david-kilgour.com/2006/Kilgour-Matas-organ-harvesting-rpt-July6-eng.pdf.
21 Tibetfocus, http://www.tibetfocus.com/zerstoerung/verhaftung&folter.htm, The Falun Gong Report 2003; Blume, Georg: Endstation Bambus-Gulag, In: Die Zeit Nr. 16/2001, http://www.zeit.de/2001/16/politik/200116_falun.html; www.faluninfo.de/144.0html; www.de.clearharmony.net/articles/200403/15811.html; http://www.chinaintern.de/article/-Menschenrechte/1092590040.html.
22 United Nations Press Release, Dec. 2nd, 2005, http://www.unhchr.ch/huricane/huricane.nsf/view01/677C1943FAA14D67C12570CB0034966D; BBC News, Dec. 2nd, 2005, http://news.bbc.co.uk/2/hi/asia-pacific/4491026.stm.

Thomas Weyrauch: China - Who Rules the Rule of Law?
Speech at the Second International Conference
for Global Support of Democratization in China and Asia
European Parliament, Brussels, Belgium, May 14 - 16, 2007

中国-谁在掌控法制

在第二届全球支持中国和亚洲民主化大会上的讲话
比利时布鲁塞尔欧盟总部
2007年5月14-16日尊敬的女士们、先生们:大家好!

印度号称是世界上最大的民主国家,但是几十年来,印度有关禁止陪嫁和刑事诉讼程序公平化的国家法律却一直没有得到很好的执行。在中国这样一个地域近乎欧洲版图的大国,情况也是类似。所以,我们不可能指望,中国的法律可以很容易得到贯彻,中国的每个角落都会遵守中华人民共和国的法律。
中国地域大,人口众多,特殊的行政管理传统和目前所处的发展阶段,对其法律的贯彻都有影响。但对法律影响最大的是中国的政治体制。
和印度以及美国和巴西等大国有很大区别的是,中国是一党独裁,即中国共产党独霸政权。如果这样一个国家的政府宣称,法制已经在社会的每个层面得到贯彻,那就值得我们对这样的宣称仔细分析一下,更何况中国的社会在不断变化之中。
中共夺取政权之前,对法律毫不在乎,以致使多达一千五百万的中国人被屠杀。从所谓的1949年解放到1976年,死于暴力的人数达到近八 千万。在一个没有法制的中国,毛主席的口号,一些信口开河的党徒的指示,红卫兵暴徒的拳头就是法,他们统治着中国,毁掉了中国。从毛主义时代到现代中国,重建法制是过度时期的特征。像所有王朝的臣民和中华民国的公民一样,中华人民共和国的公民应该有机会了解自己的权利和义务。与毛泽东暴政时代混乱的暴力年月相比,今日中国法律条文的发展看似是在进步。但目前的法律现状就可以称为“法制”了吗?
今天的中国拥有法律架构和法律机构。成千的官员都进行了长期的培训,可谓受过良好的教育。法官都持有大学文凭。中国的宪法对国家的架构有明确规定,并且写明要尊重人权,承认产权。刑法和刑事诉讼法禁止酷刑,禁止利用威胁手段,即威胁当事人会受到更严厉惩罚的手段进行非法拘禁。中国签署了国际法中的多个公约和条款,在法律上有义务保护自由贸易,保障人权,维护环境等等。乍一看,这些事实似乎是法制的证明。
尊敬的女士们,先生们。这些似乎是,但绝不是。在中国,每一级的行政和司法都受中国共产党的控制,从国家到省、自治区、市、区、镇、村,无一例外。中国共产党控制着军队、国安和公安系统以及公诉人的办公室。人民代表大会在中国是国家、省、镇的立法机构,尽管每年只例行开会一次,但没有党的许可,寸步难行。所以人民代表大会很难控制人民法院和人民政府的行为。即使人民代表大会的成员想控制其它的国家机构,但只要这些代表是党选拔的或是党的领导干部,那么它们是不会有什么惊天动地的作为的。有关人民代表大会我想补充一句,镇和乡村一级以上的人民代表无一人是由人民选出的。可见,中国的统治者众权在握,却可以不受到任何控制。他们可以不遵守国内和国际法规,可以撕毁商业和约,可以侵犯人权。很多时候,侵犯人权的命令是由高层下达的。比如,高志晟律师可以毫无法律保护地受到非法拘留、酷刑折磨,甚至单独监禁。对一位知名的、享有世界声誉的批评家进行如此虐待,没有政府和中共领导层的认可是不可能的。
很加不可思议的是,据报道一些使用残暴手段迫害基督徒、法轮功修炼者、藏人、维吾尔人和异议人士的官员竟然得到嘉奖。这些事实说明,中国的政治领导人和中国共产党对这些犯罪负有不可推卸的责任。
中国媒体经常会有关于政府官员侵权,老百姓胜诉的报道,用以宣传法制,平息人民的怒气。政府官员和中共干部滥用职权,欺压百姓的事每天都在发生,老百姓在忍无可忍的时候不会惧怕流血冲突。那么,政府对法制的神话宣传到底凑效没有呢?
大多数的老百姓还会相信这些宣传吗?我认为不会,因为由于滥用职权而引起的暴力冲突事件在不断上升。
我们再回头看看中国法律最敏感的三个问题:宪法、刑法和刑事诉讼法。
宪法在序言中规定了谁是国家的领导力量,但这个机构并非选举产生。请听下面的行文:“社会主义的建设事业必须依靠工人、农民和知识分子,团结一切可以团结的力量。在长期的革命和建设过程中,已经结成由中国共产党领导的,有各民主党派和各人民团体参加的,包括全体社会主义劳动者、拥护社会主义的爱国者和拥护祖国统一的爱国者的广泛的爱国统一战线。”
尊敬的女士们、先生们,只要中国共产党是社会主义中国的领导力量,我们可以想象,实施权力意味着什么。请听宪法第一条:“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。社会主义制度是中华人民共和国的根本制度。禁止任何组织或者个人破坏社会主义制度。”
那么,宪法第2条“中华人民共和国的一切权力属于人民”的条款又有什么样的影响呢? 如果所有宪法权力来自工人阶级、以工农联盟为基础、接受中国共产党的领导,那么剩余给人民的权力就寥寥无几了。所以,尽管宪法第11条对私营经济权利有所规定,第33条有“国家尊重和保障人权”的条款,但任何人都不要幻想能够享有多少权利。其它条款规定的言论、出版、集会自由,宗教信仰自由和人身自由都要服从于领导党派的当前政策。
根据刑法第247条,司法工作人员对犯罪嫌疑人、被告人实行刑讯逼供或者使用暴力逼取证人证言的,要受到制裁。执行处罚的工作人员如有类似行为,也要同样被判刑。
中国立法也禁止刑事诉讼法中的酷刑。另外,中国1986年签署了《禁止酷刑和其他残忍、不人道
或有辱人格的待遇或处罚公约》,1988年10月批准此项公约生效。但是接受公约并不意味着就会对使用酷刑透明化。最后的妥协办法是,中国领导层保留了对两项条款的签署。一、对公约第20条有关国际反酷刑委员会的职能中国不予承认。二、中国不受第30条第1款的制约。后者意味着中国在和其它国家发生纠纷时不会诉诸国际司法法庭。
这种国内刑法和国际法之间复杂的法律建构实质是缺少对中国官员的控制。众所周知,尽管中国开始时出乎意料地请联合国酷刑特别观察员曼弗雷德·诺瓦克先生去中国调查,但在他逗留期间,中国政府处处设置障碍,阻止他顺利调查。
嫌疑人和被告人在中国只享有有限的权利。比如双重危险法禁止对同一特定罪行进行双重处罚,但中国的刑法没有这一条。又比如,“法无明文规定不为罪,法无明文规定不处罚”的原则禁止事后处罚,但中国公民不受此条原则的保护。
对法轮功的迫害违背了所有的法律原则。在一个国家,如果领导者影响和控制立法机构以及司法机构,那么侵犯权利,特别是侵犯人权的行为经常是得到国家机构许可的。所以,国家对上述罪行负有不可推卸的责任。也正因为如此,中华人民共和国尽管有政治力量和经济权力,但依然不能算作一个对自己行为负责的国际伙伴。
中国的法律条文是由中国共产党机构内的一小撮政治领导人物制定的,对他们滥用职权则没有法律条文进行补救。所以我们不可能在中国看到法制。没有法制导致的后果之一就是不断上升的游行、抗议和警民暴力冲突事件。官方对法制、廉政与和谐社会的宣传也就变得没有效力。老百姓无力改变自己的现状,自然会越来越强烈地认为,中国共产党领导人的统治是不公正的,不合法的。在这些老百姓的眼里,中国的法律仅仅是虚伪腐败残暴的寡头执政者的工具而已。中国人民没有享受到法制,而是几十年来受制于一个利用法律,利用不公正体制下的法律来统治人民的专制政权。
冲突事件上升数字蓝色:确切数据
紫色:估计数据根据上述说明,欧洲民主国家和中国之间的法制对话对中国的法制体系其实是没有任何影响的。尽管如此,民主和法制是绝大多数中国人的共同目标。尊敬的女士们、先生们,总有一天,那些躲在中南海高墙后的几个家伙会无法阻挡人民的力量,通向公民社会、人权、民主和法制的大门会被打开。我相信,这一天不久就会到来。