A Brief Analysis of the Issues in Legislation and Law Enforcement in China With Regard to Falun Gong

On the 25th of April in 1999, after being treated unjustly, Falun Gong practitioners went to Zhongnanhai to appeal their case to the government. Not long after, Jiang Zemin manipulated certain people in the Chinese Communist Party (CCP), as well as the state machinery, to escalate the suppression of Falun Gong. At the same time, he issued written instructions to have the National People's Congress, the Supreme People's Court and the Supreme People's Procuratorate issue related legislative documents, to make people believe that the Chinese authorities were handling the Falun Gong issues "according to law."

Under such directives, there was no legislation or judicial procedure whatsoever to determine if Falun Gong and Falun Gong practitioners were guilty of breaking any laws. That is how it came about that in October 1999, the Supreme People's Court and the Supreme People's Procuratorate put forth the "Decision of the Standing Committee of the National People's Congress on Banning Heretical Cult Organisations, Preventing and Punishing Cult Activities" and "Interpretation of certain problems in implementing the law dealing with cases about the crimes of evil cult organisations." These entities also issued a public notice, all of which were self-contradictory and full of fallacies. What followed was five years of unrestrained, unlawful persecution of Falun Gong, which to date has caused terrible chaos within Chinese society.

I. Regarding the Rights to Interpret Laws and the Rights of Judiciary Interpretation

The Supreme People's Court and the Supreme People's Procuratorate have the right of judiciary interpretation, but they are not authorised to interpret the law. They can only make a request for legislative interpretation to the Standing Committee of the National People's Congress.

Article 67 of Constitution of People's Republic of China states:

The Standing Committee of the National People's Congress exercises the following functions and powers: "... (4) To interpret statutes;"

Article 42 of the Legislation Law of the People's Republic of China states: "The power to interpret a national law shall vest in the Standing Committee of the National People's Congress."

Article 43 of the Legislation Law of the People's Republic of China states: "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 municipalities directly under the central government may make a request for legislative interpretation to the Standing Committee of the National People's Congress."

The "Decision of the Standing Committee of the National People's Congress on Improving Legislative Interpretation," which was issued in June 1981, endowed the Supreme People's Court and the Supreme People's Procuratorate the right of judiciary interpretation.

The "Complete Editions of Judiciary Interpretation" of the Supreme People's Court stipulate: [Legislative interpretation refers to] "universally effective interpretation by the highest organ of state power or its standing organ of the content and the implications of the laws they constitute." It is also called statutory interpretation.

Judiciary interpretation refers to "universally effective judiciary interpretation by the highest judiciary organ in China as to how to apply the law specifically in practise in the process of enforcement according to its functions and power endowed by law."

II. Regarding What Defines "Evil Cult" and "Evil Cult Organisation"

Regarding what constitutes an "evil cult" and "evil cult organisation," China's legislation and law enforcement were complete blank spots in this regard, and to date there has been no statute that provides a clear explanation as to what their legislative definitions and legal interpretations are. Article 300 of the "Criminal Law" only mentions "evil cult organisation" without any definition. Neither has the "Decision of the Standing Committee of the National People's Congress on Banning Heretical Cult Organisations, Preventing and Punishing Cult Activities" (abbreviated as "Decision" in the following text) provided a clear legislative definition for the characteristics and constituents of an "evil cult organisation." Thus, the "Decision" purposely left room for ambiguous interpretation and authorised the law enforcement organs to suppress Falun Gong with vague language. In the "Decision" it is stated that the "People's Court, People's Procuratorate, public security organs, state security and law enforcement and executive organs should take their respective responsibilities and make a joint effort to do it well." The vague authorisation here laid a foundation for the Supreme People's Court and the Supreme People's Procuratorate to carry out things beyond their jurisdiction.

III. "Interpretation" issued by the Supreme People's Court and the Supreme People's Procuratorate

The Supreme People's Court and the Supreme People's Procuratorate respectively issued an "Interpretation" on the 8th and 9th of October, 1999, prior to the issuance of the "Decision" by the National People's Congress. The full title of the "Interpretation" is as follows: "Interpretation of certain problems in implementing the law in dealing with cases of organising or utilising evil cult organisations to commit crimes" (hereby abbreviated as "Interpretation"). The "Interpretation" was not an interpretation of certain issues in the "Decision;" rather, it was an interpretation of related issues in the "Criminal Law." It is still under debate whether this "Interpretation" was a "judiciary interpretation" or a "legislative interpretation," issued by overstepping their power. Some hold that it was a "judiciary interpretation," for the specific issues in the application of criminal law in handling evil cult organisations. We believe that it acted in lieu of the law to define "evil cult organisation" (e.g., Article One of the "Interpretation" defines "evil cult organisation") and to "interpret laws" related to crimes of organising and utilising evil cult organisations, to engage in illegal conduct.

IV. Why did the "Decision" and the "Interpretation" not specify that "Falun Gong was an evil cult" and instead, imply they were "referring to Falun Gong?"

On the one hand, the main objective of legislation is to have a universal, disciplinary and restrictive effect on the society. It is not supposed to define the crime of an individual organisation or an individual person. More importantly, these legislative organs are not even clear about the basic concept and constituents of "evil cult organisations." It is an undefined area in China's legal system. At the same time, the authorities had not conducted any solid, societal investigation or research on Falun Gong before they put forth the related legislation. They didn't have any evidence on which they could conclude that "Falun Gong is an evil cult." That was why they could not specify that, "Falun Gong is an evil cult" in the "Decision" and the "Interpretation."

In late October of 1999, when Jiang Zemin was on a state visit in France, he sudden blurted out at a press conference, "Falun Gong is an evil cult." This put China's media and legal circles in a very negative light. In a rush, the People's Daily immediately published an editorial article, declaring that "Falun Gong is an evil cult." The "Decision" and the "Interpretation" were made public on the same day, October 30th, 1999. Although the "Decision" and the "Interpretation" dared not clearly specify that the nature of Falun Gong was "an evil cult," yet the implication of the law and the media hype unambiguously pointed to Falun Gong as the target of the new law.

V. Legal Procedures Required for Charging or Banning a Certain Organisation

Personnel in legal circles are very clear that in order to convict a certain organisation or an individual, judicial procedures are required. If a certain organisation is to be charged as unlawful or to be banned, certain law enforcement organs must carry out investigations and gather evidence before that organisation can be charged. Even if the organisation's acts indeed constitute a crime and there is convincing evidence, the court still must have public hearings to ensure the basic rights of representation and debate of the organisation or the individual. Once a court judgement is made, the accused party should be notified of its right to appeal within a certain time limit. Since the persecution of Falun Gong began on the 20th of July, 1999, not a single law or a single law enforcement organ has confirmed that "Falun Gong is an evil cult" through any legal procedure.

Why don't they resort to legal processes to determine the nature of Falun Gong?

To follow legal procedures, the investigative entity must first seek out and gather supporting evidence. Then they would have to investigate the true nature of Falun Gong, of which the basic and most prominent evidence is that Falun Gong requires practitioners to follow the principles of Truth-Compassion-Forbearance and be good people, and that Falun Gong has a miraculous healing effect. Doing it this way would make them unable to carry out the illegal persecution by fabricating crimes. Had they given Falun Gong practitioners the right to defend and appeal, wouldn't the authorities' evil motives be exposed? It is thus impossible to convict Falun Gong through legal procedures. Without any legal grounds they have randomly convicted and harmed Falun Gong practitioners. This action resulted in tens of thousands of Falun Gong practitioners being illegally sentenced, detained and mentally and physically harmed. Yet, they don't allow Falun Gong practitioners to say anything in their own defence. The legal/judicial departments reject all complaints and appeals from Falun Gong practitioners. This is utterly preposterous, and it has exposed the ugliness in China's legal system.

VI. The Supreme People's Court and the Supreme People's Procuratorate issued the "Implementation" and the "Notice" Respectively

The Two State Organs, the Supreme People's Court and the Supreme People's Procuratorate issued the "Implementation of the Decision of the Standing Committee of the National People's Congress on Banning Heretical Cult Organisations, Preventing and Punishing Cult Activities" and "Notice of Judiciary Interpretation" on November 5 and October 31, 1999 respectively. The notice mentioned that "Falun Gong was an evil cult." For instance, "The publication of this important legislative and judicial interpretation is to give legal ground for the severe attack on evil cult organisations, particularly the Falun Gong evil cult organisation, which usurps the name of religion, qigong (exercises for cultivating "qi" or "vital energy"), or other names to..." "Resolutely attack Falun Gong and other evil cult organisations' criminal activities according to law..." They used the format of handing down internal administrative documents to randomly mention that, "Falun Gong is an evil cult." This is an intentional, speculative act in excess of authority. The internal document and the "two state organs" do not carry any legal significance, nor can they be used as a basis on which to convict anybody.

VII. China's Treatment of Falun Gong Has Been an Utterly Deplorable, Illegal, and Chaotic Situation

Looking back over the past five years, China's treatment of Falun Gong has been an utterly deplorable, illegal, and chaotic situation from the aspects of legislation, enforcing the law, administration of justice and setting policies and measures. Let us first mention China's current legal system, especially its administrative legal system, which is completely under the control of individuals and individual power instead of the law. The CCP takes over the administration of the government and uses the law to violate the law. In their treatment of Falun Gong they have never followed any law, nor do they have any intention to follow any legal procedure. Jiang Zemin had expected that by utilising the usual means, which is to give an order and start a "movement," they would be able to destroy Falun Gong within three months without any difficulties. Thus, they took draconian measures, one after another, within a few days.

On July 20, 1999 they secretly arrested a large number of Falun Gong practitioners overnight. At 3:00 p.m. on July 22, the entire state media started a massive propaganda campaign and announced the notice of banning Falun Gong, as an "illegal organisation." The Ministry of Public Security, the Ministry of Civil Affairs, and the Ministry of Personnel were all involved in this. The Office of the CCP Central Committee and the Office of the State Council issued an urgent notice that CCP members were not allowed to practise Falun Gong. The Ministry of Personnel issued a notice that public servants were not allowed to practise Falun Gong. There were meetings at all levels and everybody was forced to take a stand. All of a sudden, everyone was under the shadow of terror. It was a complete persecution campaign in the same style as the Cultural Revolution.

Jiang Zemin's ugly nature and poor judgement put him in a very difficult position, but he made further efforts to use the CCP and the state machinery. He kept escalating the intensity and measures in the persecution of Falun Gong. In the meantime, he ordered the National People's Congress and the two supreme offices to try to use legal and judicial means to cover up his barbarous and tyrannical rulings, and to create a false image of treating Falun Gong according to law, thus further deceiving the people with lies. Thus, we had the situation mentioned earlier where there was no legislation or judicial procedure whatsoever to determine if Falun Gong and Falun Gong practitioners were guilty of any crimes, and yet the people in power issued the "Decision," the "Interpretation" (1 and 2) and the "Notice." All of these documents were self-contradictory and full of gaps and fallacies and have led to a five-year-long unrestrained, unlawful persecution of Falun Gong, and irreversible harm.