The “Falun Gong Problem”: Politics and the Struggle for the Rule of Law in China

China Quarterly

Volumn 175, Issue , 2003, Pages 623-642

  Keith, Ronald C ^a   Lin, Zhiqiu ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

HUMAN RIGHTS; LEGAL SYSTEM; POLITICAL SYSTEM;

CHINA;

EID: 0141954135     PISSN: 03057410     EISSN: None     Source Type: Journal    
DOI: 10.1017/S0305741003000377     Document Type: Article

References (77)

1. On the distinction between “law” and “policy” as it relates to Party leadership, see the analysis of the views of Zhang Yongming and Li Buyun, in R.C. Keith, China's Struggle for the Rule of Law (London & New York: Macmillan & St. Martin's, 1994), p. 13.
2. Jerome Cohen, “The criminal process in the People's Republic of China: an introduction,” Harvard Law Review, Vol. 79, No. 3 (January 1966), p. 470
3. as cited in Keith, China's Struggle for the Rule of Law, p. 40.
4. China's Struggle for the Rule of Law, p. 220.
5. China's Struggle for the Rule of Law, p. 218. “Policy is the soul of law” (zhengce shi falü de linghun), summed up the state's pre-eminent position vis-à-vis law. Policy was a priori to law, and in the absence of law it had the status of law.
6. Ronald C. Keith and Zhiqiu Lin, Law and Justice in China's New Marketplace (London: Palgrave, 2001), p. 245.
7. Pitman Potter discusses this in The Chinese Legal System: Globalization and Local Legal Culture (London & New York: Routledge, 2001), p. 161.
8. The Chinese Legal System: Globalization and Local Legal Culture, p. 11.
9. The Chinese Legal System: Globalization and Local Legal Culture, p. 107.
10. For jurist debate on the “balance of values” see Keith and Lin, Law and Justice, pp. 25–27.
11. Ian Dobinson, “The Criminal Law of the People's Republic of China (1997): real change or rhetoric,” Pacific Rim Law and Policy Journal, Vol. 11, No. 1 (January 2002), p. 4
12. Stanley Lubman, Bird in a Cage: Legal Reform in China after Mao (Stanford: Stanford University Press, 1999), pp. 3, 168.
13. Here, Peerenboom cites Keith and Lin, Law and Justice in China's New Marketplace, p. 31.
14. Randall Peerenboom, China's Long March Toward the Rule of Law (Cambridge: Cambridge University Press, 2002), p. 11, n. 32.
15. Peerenboom elaborates on Lubman's view as follows: “Given that for Lubman a transition to rule of law is possible only if the ideological limits of the ruling regime are overcome, it would seem that the ruling regime must either fall from power or abandon – or at minimum fundamentally revise – its socialist ideology, including the commitment to a leadership role for the Party.” China's Long March, p. 24, n 30.
16. Linda Chelan Li, “The rule of law in Guangdong,” The China Quarterly, No. 161 (March 2000), pp. 119–220, our italics.
17. Stanley Lubman, “Prospects for the rule of law in China after accession to the WTO,” http://www.law.berkeley.edu/institute, p. 3.
18. Peerenboom, China's Long March, p. 61.
19. Lubman, “Prospects for the rule of law in China after China's accession to the WTO,” p. 3.
20. Jonathan Hecht, “Can legal reform foster respect for human rights in China?” Testimony before the Congressional Executive Commission on China, 11 April 2002, p. 2.
21. Human Rights in China, “Human rights situation in China and the dialogue on human rights,” 29 July 2000, http://iso.hrichina.org, p. 3.
22. Human Rights in China, “Empty promises: human rights protections and China's criminal procedure law in practice,” http://iso.hrichina.org, p. 2.
23. “China uses ‘rule of law’ to justify Falun Gong crackdown,” Human Rights Watch World Report 1999, http://www.hrw.org/press/1999/nov/chinal 109.htm. p. 1.
24. Ronald C. Keith and Zhiqiu Lin, “To revise or not to revise China's law on counterrevolution,” China Information, Vol. 5, No. 4 (Spring 1991), pp. 24–26.
25. On the differentiation of “counter-revolution” and “endangering state security,” the balance of values and the redefined purposes of Chinese criminal law see “Balancing society and the individual in judicial justice,” in Keith and Lin, Law and Justice in China's New Marketplace (London: Palgrave Press, 2001), pp. 178–231.
26. For discussion of the application of the law on counterrevolution to Tiananmen organizers see Timothy Gelatt, Criminal Justice with Chinese Characteristics (New York: Lawyers Committee for Human Rights, May 1993), pp. 77–81
27. Keith and Lin, “To revise or not to revise China's law oncounterrevolution,” pp. 39–41. Gelatt reported (p. 80) that PRC legal scholars had told the Lawyers Committee that there was no likelihood of revision to the counter-revolutionary law in the foreseeable future. Keith and Lin suggested (p. 24) that the reaction to Tiananmen Square was only temporary and that the proposed revision would probably come back.
28. Andrew Nathan and Perry Link (comp.byZhang Liang), The Tiananmen Papers(New York: Public Affairs, 2001), p. 424.
29. Based upon his discussion with James Seymour, Danny Schechter, Falungong's Challenge to China: Spiritual Practice or “Evil Cult” (New York: Akashic Books, 2001), p. 198.
30. The case of Chen Zixu, which was later considered by the UN Committee on Torture, is but one example. Mrs Chen's daughter was unable to file a lawsuit to gain possession of her mother's body as no lawyer was willing to accept her case. For this item, “A deadly exercise: practicing Falun Gong was a right, Ms Chen said, to her last day,” Wall Street Journal, 20 March 2000 and other related human interest stories see Ian Johnson's Pulitzer Prize reporting at http://www.pulitzer.org/year/2001/international-reporting/works/falun-gongl.html.
31. Peerenboom provides a informative analysis of the 5 November 1999 SPC “Notice concerning the implementation of the ‘Decision of the NPC Standing Committee on banning heretical organizations and preventing heretical activities’,” China's Long March, pp. 99–101.
32. US human rights reporting has focused its criticisms on re-education through labour. US State Department, Country Reports on Human Rights Practices–2000, February 2001, at http://www.state.gov/g/ddrl/rls/hrrpt/2000/eap/index.cfm?docid-684, pp. 6, 10–11.
33. See “Spokesman criticizes US House resolution on Falungong,” Zhongguo Xinwenshe, Beijing, 19 November 1999 in FBIS-CHI-1999–1119, p. 1.
34. Li Hongzhi, “Further comments on superstitition,” 13 July 1999
35. Schechter, Falun Gong's Challenge, p. 267.
36. Julie Ching, “The Falun Gong: religious and political implications,” American Asian Review, 1 January 2001, p. 2.
37. American Asian Review, p. 4.
38. Ian Adams, Riley Adams and Rocco Galati, Power of the Wheel: The Falun Gong Revolution (Toronto: Stoddart Publishing, 2000), pp. 8, 29.
39. Bureau of Democracy, Human Rights and Labor, US Department of State, International Religious Freedom Report, China (Hong Kong and Macau), p. 1 at http://www.state.gov/g/drl/rls/irf/2001/5752.htm.
40. US Commission on International Religious Freedom, Recommendations for US Policy on China, 13 February 2002, p. 2 at http://www.uscirf.gov/reports/13Feb02/ChinaRecommendations.php3.
41. In a 26 September 1989 interview with R.C. Keith, Sun Guohua, a leading jurist, indicated that in his recent discussions with Jiang Zemin the latter endorsed “rule of law” as an ethos which implies the limitation of the Party State in the supremacy of law. As cited in Keith, China's Struggle for the Rule of Law, p. 16.
42. See Keith and Lin, Law and Justice in China's New Marketplace, p. 35.
43. Party Literature and Research Department, Central Committee, Communist Party of China (ed.), Jiang Zemin, on “The Three Represents” (Beijing: Foreign Languages Press, 2001), p. 162. The combination idea was in the mid-1980s represented as especially appropriate to Chinese culture.
44. See Keith, China's Struggle for the Rule of Law, pp. 15, 222–23.
45. Jiang Zemin, On “The Three Represents,” p. 163.
46. During a Politburo meeting in December 2001, Jiang Zeming stressed the social contributionsof religion and praised the role of the “broad believing masses.” “Giving China's Communist Party some of that old-time religion,” Globe and Mail, 19 February 2002, p. A13.
47. A FLG press conference of 25 April 2001 claimed that Zhu had met practitioners just outside the State Council and that as a result of his more moderate approach to the problem, Jiang forced him to do a “self-criticism.” Jiang's strong-arm tactics against the FLG were related back to his resolute role as Shanghai's mayor in suppressing the spread of demonstrations in that city in 1989. See Schechter, Falun Gong's Challenge to China, pp. 13, 29.
48. If so this would have come just after Jiang and Zhu had made strong common cause in favour of Zhu's April 1999 trip to Washington to advance the WTO negotiations. The disagreement may have focused on the nature of FLG organization rather than over whether the silent congregation around Zhongnanhai was detrimental to social stability as suggested in “Handling the Falungong case,” trans. by Zong Haiwren from the Chinese, Zhu Rongji zai 1999(Zhu Rongji in 1999), in Chinese Law and Government, Vol. 35, No.1 (January/February 2002), pp. 53–72.
49. Peerenboom, China's Long March, p. 98.
50. The US State Department cites the official government white paper that claims there are 200 million religious adherents, 3,000 religious organizations, 300,000 clergy and 74 religious colleges. Country Reports on Human Rights Practices 2000, p. 24.
51. Abdelfattah Amor, January 1998 report on the “Elimination of all forms of intolerance of discrimination based on religion or belief,” as cited and discussed by Peerenboom, China's Long March, p. 95.
52. “CASS Official Xia Yong on Falungong, rule of law,” Xinwenshe, Beijing, 3 August 1999, in FBIS-CHI-1999–0824, p. 1.
53. Much of the regulation was brought together in the Ministry of Public Security publication, Chajin qudi xiejiao zuzhi falü fagui (Laws and Regulations Prohibiting and Banning Heretical Cult Organization) (Beijing: Qunzhong chubanshe, 1999), passim.
54. “Falungong ban supported by law,” BR, Vol. 42, No. 37 (13 September 1999), p. 9.
55. “New law on mass rallies took 10 years of effort,” China Daily, 26 December 1989, p. 4.
56. “Commentary views public organization regulations,” Renmin ribao, 9 November 1999 in FBIS-CHI- 89–230, 1 December 1989, p. 14.
57. Xiao Du, “Faithfully adhere to the principles of the constitution: sidelights on how the NPCSC examined and discussed the law governing assemblies, parades and demonstrations,” Renmin ribao, 1 November 1989, p. 2
58. FBIS-CHI-89–214, 8 November 1989, p. 25.
59. In her analysis, Julie Ching argues the importance of the state constitutional guarantee of freedom of assembly, but she indicates: “The government appears in the right when it describes the tight organization of the group which Li Hongzhi characterizes as spontaneous.” Ching, “The Falun Gong: religious and political implications,” p. 4.
60. Text of “The PRC law governing assemblies, parades and demonstrations,” in FBIS-CHI-89–210, 1 November 1989, p. 16.
61. Charles D. Paglee, “China law web, regulations for the implementation of the law of assembly, procession and demonstration,” http://www.quis.net/chinalaw/prclaw113.html.
62. This is as reported by a Renmin ribao staff reporter, see “ ‘Spontaneous’ or premeditated – second commentary on exposing the essence and harm of ‘Falun Gong’,” Renmin ribao, 6 August 1999 in FBIS-CHI-1999–0906, p. 2.
63. Chinese texts of the central government and Party documentation on the case against the FLG are provided in a single issue of Xinhua yuebao (New China monthly), No. 8 (1999).
64. Zhang Qiang (ed), Xiuding xingfa tiaowen shiyong jieshuo (Explanations of the Application of the Revised Criminal Law Articles) (Beijing: Zhongguo jiancha chubanshe, 1997), p. 388.
65. Zhou Daoluan, Shan Changzong, Zhang Sihan, et al., Xingfa de xiugai yu shiyong (The Revision and Application of the Criminal Law) (Beijing: Renmin fayuan chubanshe, 1997), p. 616.
66. Wang Lieming, “Falung said to disclose state secrets,” Xinhuashe, Beijing, 25 October 1999, in FBIS- CHI-1999–1027, p. 2.
67. Li Chun, Wang Shangxin et al., Zhongguo xingfa xiuding de beijing yu shiyong (The Background of Chinese Criminal Law Revision and its Application) (Beijing: Falü chubanshe, 1998), p. 395.
68. Charles D. Paglee, “China law web, regulations governing venues for religious activities,” http://www.lqis.net/chinalaw/prelaw110.html.
69. “Guanyu qudi xiejiao zhuzhi, fangfan he chengzhi xiejiao huodong de jueding” (“NPCSC decision on eliminating cult organization, preventing and punishing cult activity”), Renmin ribao, 1 November 1999.
70. “Zhu Rongji discusses ‘three stresses’ campaign,” Xinhuashe, Beijing, 19 August 1999, FBIS-CHI-1999–0819, p. 1.
71. “Guanyu banli zhuzhi he liyong xiejiao fanzui anjian juti yingyong falü ruogan wenti de jieshi” (“Interpretation of several questions in law concerning criminal cases or organizing and using evil cult organization”), Renmin ribao, 1 November 1999, p. 2.
72. See You Wei and Zhao Jianfeng, “Lun woguo xingfa sifa jieshiquan de guishu wenti” (“On the issues concerning power of judicial interpretationof our criminal law”), Faxue yanjiu (Studies in Law), No. 1 (1993), p. 58.
73. See Chen Sixi, “Lun lifa jieshi wentide shiyu fei jiquita” (“On questions concerning legislative interpretation and other issues”), Zhongguo faxue (Chinese Legal Science), No. 3 (1998), p. 63.
74. See Keith, China's Struggle for the Rule of Law, p. 82.
75. See, for example, Yin Yijun and Chan Jinzhao, “Sifa jieshi lunxi” (“Discussion and analysis of judicial interpretation”), Zhengfa luntan (Law and Political Science Forum), No. 1 (1994), p. 35.
76. Rather than using “open-textured,” Randoph Peerenboom discusses “thick” and “thin” versions of the “rule of law” and analyses how different constitutional regimes including China can attempt to move towards the rule of law. Peerenboom, China's Long March, pp. 5–6.
77. Potter, The Chinese Legal System, p. 5.