(Clearwisdom.net) This article was written to help fellow practitioners use the law to expose the evil deeds of the Jiang faction and clarify the facts.
Contents of the article:
1. Which laws and regulations are Jiang and his followers using to suppress and persecute Falun Gong?
2. In the course of persecuting Falun Gong, which Chinese laws have they broken?
2.1 Violations of the Chinese Constitution
2.2 Violations of China's Substantive Law - the Penal Code
2.3 Violations of China's Procedural Law - Criminal Law Procedures
2.4 Violations of China's Administrative Regulations - Regulations Governing Punishments Administered in Public Security Bureaus
2.5 Violations of Another Administrative Regulations - Procedures for Carrying out Reeducation Through Labor
3. How can fellow practitioners in Mainland China write appeal documents without the help of lawyers?
3.1 Which legal agency should the appeal documents be delivered to?
3.2 What are the necessary elements of a criminal appeal document?
3.3 Excerpts of points to pay attention to when writing an appeal document
4. Explanations of how to write legal documents for criminal cases through examples
1. Which laws and regulations are Jiang and his followers using to suppress and persecute Falun Gong?
1.1 On October 25, 1999, when Jiang Zemin was interviewed by the French daily, Le Figaro, he openly claimed, "Falun Gong is a [slanderous term omitted] that damages the society and people." Being the president of China at that time, and under the circumstance that the National People's Congress Standing Committee had made no relevant decisions regarding Falun Gong, Jiang suddenly claimed to the world that Falun Gong was a [slanderous term omitted]. His act severely violated the Chinese Constitution. In the Chinese Constitution, which was promulgated on December 4, 1982 (this constitution is referred as "1982 Constitution" in the rest of the article), Article 5 stipulates, "The state upholds the uniformity and dignity of the socialist legal system." Article 5 (3) further stipulates, "No organization or individual is privileged to be beyond the Constitution or the law." Article 80 of the 1982 Constitution stipulates, "The President of the People's Republic of China, in pursuance of the decisions of the National People's Congress and its Standing Committee, promulgates statutes..." As the Chinese president at that time, Jiang should be versed in the law and set an example of abiding by the law, instead of promoting trampling of the law.
1.2 The first legal document that Jiang used to suppress and persecute Falun Gong was enacted on October 30, 1999. This was the "Decision of the Standing Committee of the National People's Congress on Banning Heretical Cult Organizations, Preventing and Punishing Cult Activities" (hereinafter referred to as the "Decision"). However, the "Decision" contains nothing saying that Falun Gong is a cult. The "Decision" describes the criminal activities and characteristics of a cult, such as, "employs various means to disturb the social order and jeopardize people's lives and property and economic development..." and "Persons who do the following will be dealt with severely according to the law: those who organize and take advantage of cult organizations to violate national laws and administrative regulations, who gather a crowd to make trouble, who disrupt social order, and who deceive others, cause deaths, rape women, swindle people out their money and property, or commit other crimes using superstition and heresy." Genuine Falun Gong disciples engage in none of the activities described above. Furthermore, these activities are against the principles that the Teacher of Falun Gong Mr. Li Hongzhi has expounded in Zhuan Falun and other lectures. Falun Gong teaches people to follow "Truthfulness-Compassion-Forbearance," to be good persons, be exemplary individuals who abide by the law and regulations, and be unselfish persons who always consider others first.
1.3 The second legal document that Jiang's group has utilized to suppress and persecute Falun Gong was enacted on October 30, 1999. This was the "Explanation of the Supreme People's Court and Supreme People's Procuratorate Concerning Laws Applicable to Handling Cases of Organizing and Employing Heretical Cult Organizations to Commit Crimes" (hereinafter referred to as the "Explanation"). The "Explanation" is a judicial interpretation from the Supreme People's Court and the Supreme People's Procuratorate. However, this "Explanation" obviously contains wordings that violate the law and constitution. "The People's Court Organization Law of the People's Republic of China," which was enacted on July 5, 1979, makes a clear stipulation regarding the limit of the Supreme People's Court's authority in interpreting the law, "Article 33: The Court gives judicial interpretations on the specific application of the law in the course of trial." The authority of the Supreme People's Court is limited to "the specific application of the law" and it cannot exceed this limit to its authority. That is to say, the Supreme People's Court has no right to explain the laws and decrees per se. It can be further said that the Supreme People's Court has no right to make interpretations regarding the meaning and content of the laws and decrees. The only governmental branch that is empowered to explain the law is the National People's Congress Standing Committee. "1982 Constitution" stipulates in Article 67, "The Standing Committee of the National People's Congress exercises the following functions and powers: ......(4) to interpret laws;..." However, Article One of the "Explanation" from the Supreme People's Court and the Supreme People's Prosecutor has explained "heretical cult organizations" of the Article 300 in the Criminal Law as "those illegal organizations that have been established under the guise of religion, qigong or other forms, deifying their leading members, enchanting and deceiving others by concocting and spreading superstitious fallacies, recruiting and controlling their members, and endangering the society." This article absolutely constitutes an explanation of the law per se; therefore, it goes far beyond the given authority limit of just making "the specific application of the law" and constitutes an illegal explanation of law. One can thus say that Article One of the "Explanation" from the Supreme People's Court and the Supreme People's Prosecutor has severely violated the law and the constitution. Moreover, Article One also has unconstitutional contents, such as "deifying their leading members."
It is well known in modern society that human faith can be classified into two main categories: theism and atheism. For theism, different faiths believe in different individuals, such as Jesus, Saint Mary, and Sakyamuni. Belief in multiple gods is also theism. There are also people believing in Guan Yu (in Guan Yu Temple) [Guan Yu, a legendary figure in China, was a general in the Kingdom of Shu during the period of Three Kingdoms (from AD 222 to 265)], and others. In most theisms, the individuals believed in are no longer living in this world, although this is not always the case. Whether these individuals are still living or not, every citizen has the right to choose his or her own belief.
Article 36 of the "1982 Constitution," and the "New Constitution," which was enacted on March 14, 2004 stipulate, "Citizens of the People's Republic of China enjoy freedom of religious belief. No state organ, public organization or individual may compel citizens to believe in, or not to believe in, any religion; nor may they discriminate against citizens who believe in, or do not believe in, any religion." Furthermore, most theists have taken the individuals they believe in as gods and strictly abide by the doctrines of their faiths. Therefore, the so-called "deifying their leading members" is simply the citizens' freedom of choosing their own faith, and it is also a human right endowed by the Constitution. How could the Supreme People's Court and the Supreme People's Procuratorate define this right as a criminal act? This decision will certainly incur the ridicule of future generations. Even in modern times there are also examples that can be cited, such as Mao Zedong, who, when he still lived, was worshipped by numerous people and regarded as a god, although Mao called himself a materialist. After he passed away, many individuals still enshrine him for worshiping; they hang his photos and badges in rooms and cars or on clothing to show their devotion. Mao's remains are still kept in a memorial hall in Beijing for people's worship. Does the Supreme People's Court and the Supreme People's Procuratorate want Mao and the hundreds of thousands of his worshipers to be responsible for the criminal act of "deifying their leading members"?
To go one step further, the act of "deifying their leading members" is a mental activity, that is, it's a human belief. However, what the "Criminal Law" is used to punish are those who have committed crimes that damage society. If the Supreme People's Court and the Supreme People's Procuratorate can treat people's spiritual and mental activities as crimes, this brings to mind the "crime of slandering in mind," which happened during the Ming and Qing dynasties in Chinese history, or "thought crime" as referred to in George Orwell's book 1984. So at the present time, the modern act of "deifying their leading members" can be called the "crime of eulogizing in mind."
In Article 2 (3) of the "Explanation," the Supreme People's Court and the Supreme People's Procuratorate stipulated to punish those who engaged in "resisting departments concerned with banning their organizations, or resuming the banned organizations or establishing other heretical cult organizations, or continuing their heretical cult activities; ..." It is known that in China, the term "heretical cult organizations" (also translated as "evil religious organizations") first appeared in the articles of Chinese laws in October 1, 1997, that is, when a new "Criminal Law" became effective. Article 300 of the 1997 Criminal Law says "Whoever organizes and utilizes superstitious sects, secret societies, and evil religious organizations or sabotages the implementation of the state's laws and executive regulations by utilizing superstition..." Thereafter, there have been no more legitimate interpretations of "heretical cult organizations." Even the "Decision of the Standing Committee of the National People's Congress on Banning Heretical Cult Organizations, Preventing and Punishing Cult Activities," which was issued on October 30, 1999, did not make a legal interpretation of "heretical cult organizations." The "Explanation," which was issued by the Supreme People's Court and the Supreme People's Procuratorate on the same day the "Decision" was issued--October 30, 1999--made an unconstitutional interpretation of "heretical cult organizations" in Article One of the "Explanation." Regarding the so-called "heretical cult organizations," if we follow the logic and timing of these laws and clauses, we find that even before the "Decision" and the "Explanation" were issued on October 30, 1999, there existed the fact of "resuming the banned (heretical cult) organizations" (which were banned by "departments concerned").
We cannot help asking what laws or what articles of the law, before the "Decision" and the "Explanation" were issued, these "concerned departments" had used to ban "heretical cult organizations." Isn't this the same as an automatic confession that the "concerned departments" had violated the law while enforcing it? It's indeed a common fact that the authorities in China exert their power above the law. What is even more pathetic is that such acts of violating the law by the "concerned departments," while they enforce it, have been taken as the basis for the Supreme People's Court and the Supreme People's Procuratorate to issue a stipulation or interpretation of the law.
Article 2 (4) of the "Explanation" read "instigating, deceiving and organizing their members or others to refuse to fulfill their legal obligations, with the case being serious." This is another unconstitutional and illegal interpretation of the law by the Supreme People's Court and the Supreme People's Procuratorate. Furthermore, these two agencies also added new content to Article 300 of the Criminal Law. All individuals with reasonable understanding of the law would know that the act of "organizes and utilizes," which was stipulated in Article 300 of the Criminal Law, refers to intentional activities that are done through concrete actions, whereas "to refuse to fulfill their legal obligations" refers to a criminal act of those who was have special legal obligations, as required by law, but refuse to take concrete actions to fulfill their obligations. Therefore, using "to refuse to fulfill their legal obligations" to explain the act of "organizes and utilizes" is against the original intent of the Criminal Law, which constitutes yet another unconstitutional and illegal interpretation of law.
Article 3 of the "Explanation" of the Supreme People's Court and the Supreme People's Procuratorate said, "Cases of setting up and employing heretical cult organizations to deceive others and cause deaths in Article 300, Item 2 in the Criminal Law refer to cases of establishing and using heretical cult organizations to concoct and spread superstitious fallacies, deceive their members or others into practicing fasts and inflicting wounds and ill-treatment on themselves, or prevent patients from taking normal medical treatment, resulting in deaths." Undoubtedly, this is another unconstitutional, illegal explanation that clearly transcends the limits of their authority. If one has any questions regarding the limit of authority regarding "interpret laws," one can check "The Legislation Law of the People's Republic of China," which was implemented on July 1, 2000, and has made a clear stipulation regarding the limits of the authority to "interpret laws:"
"Article 42: The power to interpret a national law shall vest in the Standing Committee of National People's Congress.
The Standing Committee of National People's Congress shall give interpretation to a national law in any of the following circumstances:
(i) the specific meaning of a provision of such legislation requires further clarification;
(ii) a new situation arises after enactment of such legislation, thereby requiring clarification of the basis of its application.
Article 43 The State Council, the Central Military Committee, the Supreme People's Court, the Supreme People's Procuratorate, the various special committees of the Standing Committee and the Standing Committee of the People's Congress of various provinces, autonomous regions and municipality directly under the central government may make a request for legislative interpretation to the Standing Committee of National People's Congress."
Clearly, Article 3 of the "Explanation" is an interpretation of the specific meaning of a legal clause by the Supreme People's Court and the Supreme People's Procuratorate. The "Explanation" explains the activities that result in "deceive others and cause death" with three phrases: (1) "to concoct and spread superstitious fallacies," (2) "deceive their members or others into practicing fasts and inflicting wounds and ill-treatment on themselves," and (3) "prevent patients from taking normal medical treatment, resulting in deaths." Therefore, Article 3 of the "Explanation," issued by the Supreme People's Court and the Supreme People's Procuratorate, is another unconstitutional, illegal stipulation. As it's unconstitutional and illegal, it doesn't have any legal standing and should be revoked immediately. Moreover, the Supreme People's Court and the Supreme People's Procuratorate are only authorized to "make a request for legislative interpretation to the Standing Committee of National People's Congress."
1.4 The third legal document that Jiang's regime took advantage of in suppressing and persecuting Falun Gong consisted of two notices, that is, the "Notice on Earnestly Implementing the 'Decision on Banning Heretical Cult Organizations, Preventing and Punishing Cult Activities' and the relevant judicial interpretations," issued by the Supreme People's Procuratorate on October 31, 1999, and the "Notice on Implementing 'Decision on Banning Heretical Cult Organizations, Preventing and Punishing Cult Activities' from the National Congress Standing Committee and the judicial 'Explanation' from the Supreme People's Court and the Supreme People's Procuratorate," issued by the Supreme People's Court on November 5, 1999. (These two notices will be hereafter referred as the "Notices.") On the surface, these two notices were the administrative documents of the Supreme People's Court and the Supreme Procuratorate in their respective system; however, in essence, these two notices play a very important role in guiding the actual judicial process.
In order to satisfy their own selfish desires, Jiang's followers circumvented legislative procedures at all levels and tried to legalize their crime of persecuting Falun Gong. The two "Notices" took an equivocal approach and illegally defined Falun Gong as a heretical cult organization so as to justify and legalize the crime of persecuting Falun Gong. The notice from the Supreme People's Procuratorate read, "The issuance and implementation of the 'Decision' and 'Explanation' has provided an important legal basis for the outlawing, prevention and punishment of heretical cult organizations, especially for the crackdown on 'Falun Gong' heretical cult organization for its crimes."
In the summary of the notice from the Supreme People's Court, it read, "The 'Decision' has provided clear stipulations regarding the nature and harmfulness as well as the prevention and punishment of the heretical cult organizations. The 'Explanation,' according to the Criminal Law, has provided a detailed judicial basis for the handling of the crimes committed by the heretical cult organizations. The birth of this important law and judicial interpretation has a great significance in the harsh cracking down on heretical cult organizations, especially the 'Falun Gong' heretical cult organization, according to the law, maintaining the social stability, protecting people's interests, and safeguarding the economic reform and the 'open door' policy and the smooth progress of the socialist modernization."
It is not difficult to see from the aforementioned "Notices" that in order to cater to the selfish desires of Jiang's group and accommodate their needs in the suppression and persecution of Falun Gong, the Supreme People's Court and the Supreme People's Procuratorate adopted the means of crafting and perpetrating a fraud while drafting the "Decision" and "Explanation." They both used the word "especially" to illegally define Falun Gong as a "heretical cult organization." On the surface, it seemed to be merely pointing out the key point, but in fact it was deliberately planned, because they both knew that, if they had directly defined "Falun Gong" in the "Decision" and "Explanation" as a heretical cult organization, then they would have seriously violated the legislative principles and run counter to the facts, and this would have been caused many people to object. Therefore, they first used the excuse of guarding against and punishing the heretical cult organizations to create the regulations and stipulations, into which they also designated some "fabricated" behavior as the criminal activities. They then bypassed the necessary legislative procedures and restrictions and took the means of issuing administrative judicial documents to define Falun Gong as a heretical cult organization. Thus, they deceived the judiciary, the whole nation of China and the world's people. In turn, this has exactly exposed their nature of violating the law and the constitution during their enforcement of the law. According to their "Notices," one cannot help asking: "By which law, through what legal procedures, in which level of the court, by which judge and juries and with what evidences did the Supreme People's Court and the Supreme People's Procuratorate reach the verdict to define Falun Gong as "a heretical cult organization?" The answer is simple and clear: the "Notices" were cooked up by the Supreme People's Court and the Supreme People's Procuratorate under the suggestion, instigation and pressure from Jiang's faction, according to their will, by using an illegal method that took a legitimate form but actually violated legal procedures. Therefore, both "Notices" from the Supreme People's Court and the Supreme People's Procuratorate are illegal, unconstitutional judicial administrative documents.
1.5 The fourth legal document that Jiang's group has utilized to suppress and persecute Falun Gong is the Criminal Law, mainly Article 300 of the Criminal law. Article 300 says "Whoever organizes and utilizes superstitious sects, secret societies, and evil religious organizations or sabotages the implementation of the state's laws and executive regulations by utilizing superstition is to be sentenced to not less than three years and not more than seven years of fixed-term imprisonment; when circumstances are particularly serious, to not less than seven years of fixed-term imprisonment." The Criminal Law itself does not explain what a "heretical cult organization [i.e., 'evil religious organizations" in Article 300 of the Criminal Law]" is. The "Decision" from the National People's Congress Standing Committee does not give a legal explanation about what "cult organization" is either. The "Decision" only lists some criminal activities of "cult organizations," such as, "employ various means to disturb social order and jeopardize people's lives and property and economic development;" "Persons who do the following will be dealt with severely according to the law: those who organize and take advantage of cult organizations to violate national laws and administrative regulations, who gather a crowd to make trouble, who disrupt social order and who deceive others, cause deaths, rape women, swindle people out their money and property, or commit other crimes using superstition and heresy."
It is well known that genuine Falun Gong practitioners will do none of the illegal criminal activities listed above. Therefore, Jiang's group, facing universal condemnation, would rather violate the law and the constitution to put a legitimate façade over their act of suppressing and persecuting Falun Gong. Otherwise, they would not have been able to use the public security departments, the prosecutors and courts for this persecution. Under these circumstances, Jiang has bypassed the parameters of legislative procedures, used the Supreme People's Court and the Supreme People's Procuratorate by way of the "Explanation," further interpreted a "heretical cult organization" as "those illegal organizations that have been established under the guise of religion, qigong or other forms, deifying their leading members, enchanting and deceiving others by concocting and spreading superstitious fallacies, recruiting and controlling their members, and endangering the society." Jiang has used this illegal, unconstitutional judicial interpretation as well as the administrative "Notices" from the Supreme People's Court and the Supreme People's Procuratorate to illegally define Falun Gong as a "heretical cult organization," and then applied Article 300 of the Criminal Law on Falun Gong.
1.6 The fifth legal document that Jiang's group has utilized to suppress and persecute Falun Gong is the "Trial Method for Implementation of Re-Education Through Labor" (hereafter referred to as the "Method"), issued on January 21, 1982 by the Chinese State Council. This stipulation was enacted a long time ago, and many of its articles seriously violate the constitution as well as relevant laws and regulations, but it is still in effect and is therefore utilized by Jiang's gang. For example, all "Re-Education-through-Labor Management Centers," "Re-Education-through-Labor Schools," "Law Education Schools" and "Re-Education Centers" in the whole country, which are, in fact, prisons in disguised forms, are set up based on the "Method." For another example, the third chapter of the "Method," which is "Detention for Investigation and Approval," seriously violates Article 37 of the "1982 Constitution" and the "New Constitution," which says, "The personal freedom of citizens of the People's Republic of China are inviolable. No citizen may be arrested except with the approval of or by decision by a people's procuratorate or by decision of a people's court and arrests must be made by a public security organ. Unlawful deprivation or restriction of citizens' freedom of person by detention or other means is prohibited; and unlawful search of the person of citizens is prohibited." But Article 11 of the "Method" says, "The Re-Education-through-Labor Management Committees of the provinces, autonomous regions, municipalities directly under the Central Government, or major or medium-sized cities will investigate and decide who should go through the re-education through labor." Article 13 of the "Method" says, "The length of the re-education through labor ranges from one to three years depending on the actual situation of the person's crime and violation of the law, the nature of the crime, the circumstance, the motive and the degree of harmfulness. The length of re-education through labor is calculated from the notified date of the detention. For those who have been detained for investigation prior to the notified date of detention, the days of detention prior to the notification will be deducted from the given term of re-education through labor."
Article 26 of the method reads, "The armed force for safeguarding the re-education-through-labor management facilities is the people's armed police. The tasks of the armed force include (1) being responsible for maintaining the order and protecting the safety of the re-education-through-labor facilities and preventing bad people from making troubles or from their attacking and sabotaging these facilities, (2) assisting the re-education-through-labor facilities in stopping the trouble-making and escaping of the detainees of the re-education-through-labor facilities, (3) cooperating with the re-education-through-labor facilities in escorting groups of the persons who have been given the sentence of re-education through labor..."
From these one can see that this "Method" is an administrative stipulation that has seriously violated the constitution. The "Method" replaces the "prosecutor and the courts" with the "Re-Education-through-Labor Management Committees," "arrests and detention" with "detention for investigation," and the "detention centers and prisons" with the "re-education-through-labor centers, re-education-through-labor schools, law education schools." Therefore, the re-education-through-labor facilities, including the re-education-through-labor management centers, re-education-through-labor schools, law education schools, and re-education centers, are all illegal prisons that are set up against the constitution. Moreover, the "Method of Detaining and Sending Back the Urban Homeless," issued by the State Department on May 12, 1982, which was what the "Method" was based upon for illegally detaining citizens or illegally depriving or restricting citizens' personal freedom in name of "detention for Investigation," was revoked on August 1, 2003 and was replaced by "The Management Methods for Saving and Helping Urban Homeless and Beggars." The latter clearly states that, "It is prohibited to detain or detain in disguised forms the individuals being helped."
In summary, one can clearly see that most of the so-called laws and legal articles that Jiang's group has used as a basis to suppress and persecute Falun Gong and to drive the public security and judiciary agencies to carry out the large-scale persecution and torture against Falun Gong practitioners all over the country are illegal and unconstitutional. All these laws and legal articles should be revoked immediately, and all the citizens arrested, detained, in administrative custody or whose personal freedoms are restricted according to these laws and legal articles should be released immediately, and all the persecution and losses they have suffered should be reasonably compensated.
(To be continued)
