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Put rights on the agenda: HRIC's proposals to the National People's Congress

March 3, 1999

To: Delegates of the National People's Congress

Re: Proposals for making human rights protections a key focus of the upcoming session

As the National People's Congress meets to consider historic revisions to China's 1982 Constitution recognizing a legitimate role for the private economy in the PRC, Human Rights in China, an independent, non-political rights organization which celebrates the tenth anniversary of its founding this month, urges deputies to take the opportunity of this annual session to make progress on establishing real guarantees for human rights, in law and in practice.

In particular, we call on the NPC to act to halt the government's illegitimate use of the concept of "state security" to justify depriving Chinese people of their fundamental rights and freedoms. The NPC should demonstrate its commitment to rights for all already guaranteed by the Chinese Constitution by enacting some key constitutional revisions and crucial amendments to legislation, and by ratifying the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).

Furthermore, as the tenth anniversary of the suppression of peaceful protests across China approaches, we urge the NPC to set up a commission of inquiry to review the actions the government took, in particular the use of troops and tanks against unarmed civilians, and to reexamine the convictions of all those who remain in prison for their role in the protests.

Such actions would be a clear indication that China intends to honor the moral commitment it made to the international human rights regime when it signed the ICCPR and the ICESCR. Reaffirming this commitment is particularly important at a moment when, in the name of protecting state security, long prison terms have been imposed on individuals who have done nothing but peacefully exercise their rights and freedoms and when the government has passed regulations which further curtail freedom of association.

Below we present our proposals for consideration by NPC delegates in detail.

  • Proposed Constitutional Amendments

    The NPC should incorporate the principle that China is establishing a true rule of law, in which all are subject to laws enforced by an independent, impartial judiciary and in which protection of rights and freedoms is an essential element in the drafting of all legislation. The following are proposals about how to move towards such a system, which is qualitatively different from the "rule by law" the government is currently advocating.

    • Eliminate the "Four Basic Principles" from the Constitution
      The Four Basic Principles - keeping to the socialist road, upholding Chinese Communist Party (CCP) leadership, following Marxism-Leninism-Mao Zedong Thought and submitting to the people's democratic dictatorship - are enshrined in the Preamble to the 1982 Constitution, and thus exert an overarching force which serves to restrict the exercise of the rights it contains. These principles essentially put the CCP above the law, and enshrine, in a document which should provide practical legal norms for all citizens and the state as a whole, ideological concepts which rightly belong only in the Party's Constitution. In practice, these Principles are used to justify abrogating guarantees of rights and freedoms, and should be removed from the Constitution.
    • Establish a mechanism for constitutional review
      An amendment should be added to the Constitution to allow individuals or groups to seek judicial review when the government or its officers have acted in a way which they believe has violated their constitutional rights. Such suits could be adjudicated either by an ordinary court or an independent constitutional body provided for by the Constitution. Without such a constitutional guarantee, individual rights will continue to be in jeopardy.

      Currently, China has no functioning mechanism for reviewing whether or not an official act is in accordance with the Constitution and which victims of rights abuses can access directly. While the NPC, as the supreme organ of state power, is responsible for implementing the Constitution and can accept and investigate complaints from citizens, it does not have a specific mechanism for reviewing particular cases, and in practice does not rule certain acts unconstitutional.

    • Establish a truly independent judiciary
      A constitutional amendment should be passed which ensures that the court system is independent of the administration and the CCP, and makes individual judges responsible for trying cases independently without outside interference, whether from CCP committees or other judges. An independent judiciary is vital to the protection of human rights. Such an amendment should provide that the budget for the courts is independently prepared and approved directly by the NPC, and that the tenure of judges is guaranteed by the Constitution so that they cannot be removed without legally-defined cause.

  • Ratify the Two Covenants The NPC should, during this session, ratify the ICESCR and the ICCPR, which China signed respectively in 1997 and 1998. The NPC should take immediate action to extend the protections afforded by the two covenants, the core international instruments on human rights, to Chinese people by ratifying these treaties. Only following ratification will the treaties become legally binding on the PRC.

    In the past, China has consistently ratified the human rights treaties it signed within a year after signing the documents, and we urge the NPC to adhere to the same practice in this instance. There is no good reason to delay ratification: the process of bringing China's laws and policies into compliance with the covenants will be long and complex, and the monitoring and scrutiny which the treaties provide will undoubtedly be of assistance in this. Following ratification, the NPC should immediately begin the process of translating the human right norms contained in the covenants into China's law and practice.

  • Review the Use of "State Security" to Restrict Rights and Freedoms In the recent trials of individuals such as Xu Wenli, Wang Youcai, Qin Yongmin, Wang Ce, Zhang Shanguang and Lin Hai, the concept of "endangering state security" has been seriously misused to suppress peaceful exercise of fundamental rights and freedoms. In accord with international human rights law and practice, such peaceful actions should not be considered crimes but rather be afforded protection by the laws. Furthermore, in government regulations enacted late last year, this concept has also been enlisted to justify restrictions on freedom of association and a crackdown on publishers who produce politically-sensitive materials.

    Coopting the concept of state security to serve the political purposes of those in power in this way is entirely illegitimate and contrary to the spirit of the rights protections in China's Constitution and in the ICCPR. It also subverts judicial independence and the rule of law, demonstrating in the worst possible way that the CCP is using the law as a weapon against its opponents. As the highest organ of state power responsible for monitoring the implementation of the Constitution, the National People's Congress has the responsibility to halt this growing abuse of the concept of state security.

    We are particularly concerned about the proposal to replace "counterrevolution" with state security in Article 28 of the Constitution. Counterrevolution is a concept incompatible with international human rights standards, and should certainly be removed. However, in the light of how the government has misused the idea of state security, we urge the NPC not to incorporate this term into the Constitution. Article 28 deals with the state's role in combating crime, and it is not necessary to enumerate all the types of crimes this includes.

    However, we believe it is essential at this time that the NPC incorporate into Chinese law a narrowly and carefully drawn definition of state security, which should be included as an amendment to the Criminal Code. Currently, the Criminal Code lacks any definition of this crucial term.

    The new definition should accord with best practice in human rights protection, referring in particular to the Johannesburg Principles on National Security, Freedom of Expression and Access to Information, drafted by an international team of human rights experts. In sum, the Johannesburg Principles require that any restrictions on basic rights in the name of national security should be narrowly drawn, be the least restrictive means necessary for this end, have "the genuine purpose and demonstrable effect of protecting a legitimate national security interest" and that the government bear the burden of proving that harm has been done. They also clearly state: "The peaceful exercise of the right to freedom of expression shall not be considered a threat to national security or subjected to any restrictions or penalties." They find that it is completely illegitimate to restrict rights for the purpose of "protecting the government from embarrassment, or exposure of wrongdoing, or to entrench a particular ideology, or to conceal information about the functioning of its public institutions, or to suppress industrial unrest."

    A brief review of recent cases in which individuals have been convicted of crimes endangering state security demonstrates that the standards in the Johannesburg Principles are being ignored, and that the purposes for which the government is using state security to restrict rights fall clearly within those considered illegitimate.

    Xu Wenli, Qin Yongmin and Wang Youcai were convicted of the crime of conspiring to overthrow state power for organizing the China Democracy Party, among other acts, and sentenced respectively to 13, 12 and 11 years in prison. Zhang Shanguang was convicted of providing "intelligence" (qingbao) to institutions outside China for describing unrest among workers and peasants to Radio Free Asia and sentenced to 10 years' imprisonment. Wang Ce was sentenced to four years in prison for abetting the endangering of state security by providing funds to Wang Youcai. And Lin Hai was convicted of inciting the overthrow of state power and given a two-year term for providing e-mail addresses to an Internet magazine based outside China. But prosecutors did not show in any of these cases that the defendants' peaceful acts of association and expression posed any danger at all to the security of the state, or even could have done so. In the case of Zhang, clearly information about such social events as demonstrations cannot, under any reasonable definition, be considered "intelligence." A key element of all of these cases was that the defendants were in contact with or received funds from overseas, but there was no evidence that this came from foreign intelligence agencies or any other hostile force.

    In the light of these seriously questionable convictions, we urge the NPC, in accordance with Article 71 of the Constitution, to form a commission of review to reexamine the cases of people convicted of the crime of "endangering state security," as well as those convicted of "counterrevolution," the concept replaced by endangering state security in the 1997 revisions to the Criminal Code. Information collected by Human Rights in China indicates that most people convicted of such crimes had done nothing but exercise their basic rights, including freedom of speech, association, assembly and religion.

  • Set up an NPC Commission to review the "June Fourth" events As the tenth anniversary of the suppression of national protests calling for democratization, action to halt official corruption and freedom of expression approaches, the NPC should establish a commission of inquiry to examine the measures taken by the authorities in cities across the country to end the protests and to imprison those involved in them.

    Overwhelming evidence indicates that in Beijing and Chengdu excessive force, including the use of armored personnel carriers and live ammunition, was employed to disperse peaceful protests, resulting in many deaths and injuries of both protesters and bystanders. The families of those killed and the wounded have never received proper compensation, and continue to be subjected to political persecution. In the months and years after June 4, 1989, tens of thousands of people were convicted of a variety of crimes in trials which were patently unfair, as insufficient evidence was presented and defendants were denied the opportunity to mount a proper defense. Many received severe sentences, and we believe that several hundred such prisoners may remain incarcerated across the country.

    The commission of inquiry should be empowered to examine all the available evidence, accepting submissions from individuals and groups inside and outside the country. Its first task should be establishing the facts, then proceeding to submit this evidence to the Supreme People's Procuracy with a view to prosecuting those responsible for serious human rights abuses. It should also review individual cases of victims and, in coordination with the commission of review recommended above, reexamine all convictions of those still in prison for crimes relating to the protest movement, including those convicted of allegedly violent offenses. The deliberations of the commission should be open, and its report should be a public document.

    Establishing such a commission of inquiry would send a strong signal that the NPC will not tolerate human rights abuses, will not allow impunity for those responsible for them and will ensure that victims can achieve proper redress and compensation.

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