Studying the Illegality of the Jiang Regime's Persecution Against Falun Gong from the Perspective of the Chinese Constitution
Out of his selfish and jealous nature, dictator Jiang began using all political organs to facilitate a brutal persecution against Falun Gong practitioners in China. He has controlled the media to create propaganda, and to frame and deceive the people with a blanket of lies; he has ordered large groups of kind people who believe in Truth- Compassion-Tolerance to be illegally detained, interrogated, sent to forced labor camps, to be brutally tortured, brainwashed, and have their money extorted from them. More than 1,000 Falun Gong practitioners have been tortured to death. During the past few years, as many as 100,000 practitioners were sentenced to forced labor camps or prisons; tens of thousands of practitioners were illegally interrogated, detained, forced to write a "Guarantee Statement" [A statement to declare that he or she is remorseful for practicing Falun Gong and guarantees not to practice Falun Gong again, not to go to Beijing to appeal for Falun Gong, and never again associate with any Falun Dafa practitioners.] and a "Repentance Statement" [In this statement the practitioner is forced to admit remorse for practicing Falun Gong, promise to give up Falun Gong, and never again associate with other practitioners or go to Beijing to appeal for Falun Gong.]. The dictator doesn't allow the people to believe in Truth- Compassion-Tolerance, and doesn't allow them to practice Falun Gong. Terror fills every corner. In China right now, many followers of Truth-Compassion-Tolerance are still being detained in jails, labor camps, detention centers, custody centers, and brainwashing classes. The persecution keeps escalating.
The Jiang regime's brutality has aroused condemnation from kind-hearted people around the world, and has received the attention and condemnation from international governments and human rights organizations, as well as from scholars and legal professionals around the world.
As a law study professional and lawyer in China, I witnessed this tragedy. Conscience drove me to use the law to completely expose the violation of the constitution and illegality of the Jiang dictatorial regime's bloody persecution.
On July 20, 1999, even before Jiang announced the ban on Falun Gong, the military police, police officers, and national security officers had already secretly arrested, interrogated, and even thrown in jail the volunteer assistants from Falun Gong practice sites around China, and related volunteers from the national Falun Gong Research Association.
Jiang's aforementioned action has no legal grounds to stand on, and is in violation of the law. Before July 20, 1999 there was no policy from the National People's Congress, the NPC standing committee, the State Council, the Police Bureau, the National Security Bureau, or the Civil Administration Bureau, forbidding the people to practice Falun Gong, and neither could any such law be found in the constitution or in the criminal law code. So we must ask, what is the legal basis upon which the arrests and interrogations of Falun Gong practitioners are conducted?
Article Three, Chapter I of the Criminal Law Code of the People's Republic of China states, "For acts that are explicitly defined as criminal acts by law, the offenders shall be convicted and punished in accordance with the law; otherwise, they shall not be convicted or punished." So, before July 20, 1999, without any established law concerning Falun Gong, according to what principle and standard did the courts in China convict and sentence the Falun Gong practitioners? Why did they issue jail sentences to practitioners? The sentencing of Falun Gong practice site volunteer assistants and Research Association volunteers was obviously illegal.
Part II - The Detention and Sentencing of Falun Gong Practitioners to Forced Labor Has No Legal Ground and is a Violation of the Law
From July 20, 1999 until now, Jiang's dictatorial regime has sent to labor camps and detained nearly 100,000 Falun Gong practitioners. What policy did the police departments and local governments abide by? After investigation, they abided by:
1. Decision of the State Council Regarding the Question of Reeducation Through Labor, approved by the Standing Committee of the National People's Congress, August 3, 1957
2. Supplementary Provisions of the State Council on Reeducation through Labor, approved by the Standing Committee of the National People's Congress, November 29, 1979
3. Trial Implementation Methods for Reeducation through Labor, adopted January 21, 1982.
Article 10 of the Trial Implementation Methods for Reeducation through Labor states,
"Categories of persons to be taken in for reeducation through labor:
1) Counter-revolutionary elements who commit minor offenses that are not eligible for criminal penalties, and those who are against the Communist party and socialism;
2) Those who associate with groups which have committed murder, robbery, rape, arson, etc. but are not eligible for criminal penalties;
3) Those who commit hooliganism, prostitution, and defraud, who refuse to mend their ways despite repeated admonition, but are not eligible for criminal penalties;
4) Those who disturb the public order, including gang members who engage in group fights, provoke troubles and instigate uproars that are not eligible for criminal penalties;
5) Those with a job but refuse to work for a extended period of time; those who interfere with rules of labor and constantly create troubles, disturb the production order and work order, the order of teaching, scientific research and normal life; those who hinder execution of public works and refuse to amend;
6) Those who instigate others to commit crimes but are not eligible for criminal penalties."
However, we found that none of the Falun Gong practitioners who were illegally sentenced to forced labor had committed any of the above acts. They were illegally sentenced to forced labor simply because they persist in their spiritual belief. This is the first fact.
Secondly, Article 2 of the Law of the People's Republic of China for Administrative Penalty states, "Creation and imposing of administrative penalties shall be governed by this Law."
Article 9 of the same law states, "Different types of administrative penalties may be created by law. Administrative penalties involving restriction of freedom of person shall only be created by law."
Article 10 of the same law states, "Administrative penalties, with the exception of restricting freedom of a person, may be created by administrative rules and regulations."
According to the legislative convention in China and the Legislation Law, only the National People's Congress and the NPC Standing Committee can make laws. That is to say, no other governmental agencies have the right to create administrative penalties that restrict personal freedom. Up until now, the National People's Congress and NPC standing committee have not created any laws regarding reeducation through labor. According to laws and regulations, no penalties can be levied against citizens without corresponding laws and policies.
We can see that the forced labor reeducation of Falun Gong practitioners meted out by Chinese police bureau officials and governmental entities on various levels is also illegal.
During the persecution against Falun Gong practitioners, the interrogation, sentencing and detention of practitioners who don't give up their belief, or practitioners who clarify the facts to other people, are also illegal. Up until now, the National People's Congress and NPC standing committee have not created any laws for punishing Falun Gong practitioners. Only one policy, "the Decision on Banning Heretical Cult Organizations, Preventing and Punishing Cult Activities" was adopted on October 30, 1999. Looking at its formulation, the "Decision" is a legislative action by a legislative agency; looking at its content, this is only about identifying and punishing a "cult." It does not acknowledge or determine Falun Gong to be an undesirable group, nor does it determine the punishment to be used for Falun Gong practitioners.
Let us take a look at Article 300 of the Criminal Law, "Whoever forms or uses superstitious sects or secret societies or strange religious organizations or uses superstition to undermine the implementation of the laws and administrative rules and regulations of the State shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years; if the circumstances are especially serious, he shall be sentenced to fixed-term imprisonment of not less than seven years."
The above decree does not contain penalties relating to Falun Gong practitioners. The concept "evil (strange) religious organization" appears in both laws and they acknowledge its punishment. However, what qualifies as an evil religious organization? What standard shall be used in determining an evil cult? What governmental agency shall determine which social organization or civil action constitutes an evil cult? Accordingly, what legal procedure shall this determination be based on?
The National People's Congress is the highest institution of power in China. It has the right to create, amend and repeal laws according to the constitution. Up until now, the National People's Congress and the NPC Standing Committee have not acknowledged or determined Falun Gong to be undesirable group according to legal procedures. If that is the case, in a legal sense, Falun Gong is not an evil religious organization. Any individual's opinion and will on this issue is only his personal opinion and does not mean it is a legal determination. Any individual's opinion on the determination of the nature of an issue, including the opinion of government leaders, cannot take effect unless it goes through the conventional law-making and legal processes and passes through. Any attempt at forcing an individual's will on the government power institute(s), administrative bureau(s), and the people is an act of interfering with the law and legal system, and is an act of damaging the law and the governmental administration. It must be stopped and corrected.
Based on the reasons outlined above, the sentencing of Falun Gong practitioners has no legal ground and is illegal.
During this nationwide and unprecedented persecution against Falun Gong, Jiang's group not only conducts a bloody persecution using the military police, conventional police force, national security personnel, courts, jails, and labor camps, but also viciously and coercively brainwashes every Falun Gong practitioner, and forcibly deprives them of their freedom of belief. If the practitioners persisted in their belief, they would be physically destroyed. An internal government order has it that the death of a practitioner resulting from beating shall be counted as "suicide or natural death."
We all know that China is a member of the United Nations and a permanent member of the UN Security Council. Chinese citizens ought to enjoy the rights announced in the Universal Declaration of Human Rights, and the Chinese government should protect these rights. In this modern era of international community and rule-by-law, the brutality, coercion of people's will, and deprivation of human rights committed by Jiang's ruling party has no equal anywhere in the world. They claim those foreign governments and kind-hearted people around the world who criticize its brutality "to interfere with China's internal affairs." Shouldn't they be interfered with, as they create terror and use bloody suppression, deceive the people in China and around the world, and deprive people's human rights and people's lives? Their nature of anti-humanity should be exposed.
Regarding the use of a Chinese citizen's right, endowed by the constitution of China, to contend with, resist, and stop the Jiang dictatorial regime's brutality, protect every citizen's civil rights, political rights, and freedom of belief. Please look at related laws in the Chinese Constitution:
Article 2: "All power in the People's Republic of China belongs to the people."
Article 33: "Every citizen enjoys the rights, and at the same time must perform the duties proscribed by the Constitution and the law."
Article 35: "Citizens of the People's Republic of China enjoy freedom of speech, of the press, of assembly, of association, of procession, and of demonstration."
Article 36: "Citizens of the People's Republic of China enjoy freedom of religious belief. No state body, public organization, or individual may compel citizens to believe in, or not believe in, any religion, nor may they discriminate against citizens who believe in, or do not believe in, any religion."
Article 37: "The personal freedom of citizens of the People's Republic of China is inviolable. Unlawful deprivation or restriction of citizens' personal freedom by detention or other means is prohibited; and unlawful search of citizens is prohibited."
Article 38: "The personal dignity of citizens of the People's Republic of China is inviolable. Insult, libel, false charge, or frame-up directed against citizens, by any means, is prohibited."
Article 39: "The home of citizens of the People's Republic of China is inviolable. Unlawful search of, or intrusion into, a citizen's home is prohibited."
Article 40: "The freedoms and privacy of correspondence of citizens of the People's Republic of China are protected by law."
Article 41: "Citizens of the People's Republic of China have the right to criticize and make suggestions regarding any state body or functionary. Citizens have the right to submit to relevant state bodies: complaints or charges against, or exposures of, violation of the law, or dereliction of duty, by any state body or functionary; ...Citizens who have suffered losses through infringement of their civic rights from any state body or functionary have the right to compensation in accordance with the law."
Chinese citizens, including citizens who believe in Truth-Compassion-Tolerance and practice Falun Gong, are included in the rights stated above, as endowed to us by the current constitution of China. We should also know that any law, political decree or regulation that goes against or conflicts with the constitution is null and void.
Fellow countrymen, we don't have to passively endure! Let us exercise our rights endowed on us by the Universal Declaration of Human Rights and the constitution of China!
We should also understand that exposing and resisting this perverse persecution is a just act that truly pushes forward the progress of human civilization.
October 9, 2002