China’s crackdown on Falun Gong
On the afternoon of April 25 1999, more than 10,000 Falun Gong practitioners went and peacefully gathered outside the Zhongnanhai compound (China’s central government building), and submitted three requests: the release of forty-five Falun Gong practitioners illegally arrested in Tianjin City; that Falun Gong practitioners be afforded an atmosphere where they will not be harassed, and the lifting of the ban on Falun Gong books. Thru a resolution, the protest ended peacefully when Premier Zhu Rongji, the official head of the State Council, arrived and personally met with practitioners.
The protest was so successful that observers believed as the “largest, most rational, peaceful and satisfactory appeal in Chinese history. ” As they found out however, this “victory” was not as short-lived as much as it was illusory. Subsequently, the Ministry of Civil Affairs outlawed Falun Gong according to the Provisions on the Registration and Administration on Social Groups, after finding that the so-called Falun Dafa Society and its Falun Gong organizations had never registered with the ministry and were engaged in illegal activities.
On the same day, the Ministry of Public Security issued a circular to prohibit publicity of Falun Dafa in any form as well as any activities disturbing social order or opposing the government. On July 22 of the same year, in a statement that perhaps would rival Adolf Hitler’s Reichstag speech prompting the Jewish holocaust, the Chinese government publicly denounced Falun Gong as an illegal association and its eradication is a national priority.
By October 1999, China’s National People’s Congress (NPC) had already enacted amendments to the country’s criminal laws to outlaw cult-related groups, which were considered a threat to reform and a “modern socialist country”. Its founder, Li Hung-zhi, was arrested for spreading “superstition and malicious fallacies to deceive people, resulting in the deaths of many practitioners. ” According to the Falun Gong organization and human rights advocates operating globally, Falun Gong members have since been subjected to torture, child persecution, death, disappearances and even organ harvesting.
Are Falun Gong Members Protected by Chinese Laws? Under Art. 35 of the Constitution of the PRC, citizens of the People’s Republic of China enjoy freedom of speech, of the press, of assembly, of association, of procession and of demonstration. More significant though, is Article 36 stating: “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 believe in, any religion; nor may they discriminate against citizens who believe in, or do not believe in, any religion.
The state protects normal religious activities. No one may make use of religion to engage in activities that disrupt public order, impair the health of citizens or interfere with the educational system of the state. Religious bodies and religious affairs are not subject to any foreign domination. ” However, these constitutional provisions seem more like “promises” than guarantees in light of PRC’s government policies. On the 56th Session of the United Nations Human Rights Commission, the U.
S. Commission on International Religious Freedom observed that: At first glance, the promises of “freedom of religious belief” and protection of “normal religious activities” in Article 36 of the Constitution of the People’s Republic of China seem consistent with international standards. In practice, however, Chinese authorities have tolerated religion only to the extent that they have been able to harness it to ruling Chinese Communist Party goals, including economic development.
The Chinese leadership has never made any secret of the fact that China is an atheist state, and the expectation remains that, at some future date, religion will wither and die. (italics supplied) The report goes on to mention some government regulations that would not have mustered “the test of prior restraint” under U. S. Constitutional law. Among them is Document No. 6, “Circular from Party Central and the State Council Concerning Certain Problems in Further Improving Religious Work.
” According to the report, by endorsing registration as a means of control, the government eroded the right to manifest belief in the company of like-minded others without explicit government approval. Taking the Grievance in the International Arena; Claims of Immunity Because they could practice their religion only secretly, more and more Falun Gong members are fleeing from China. Also due to the political harassment they suffer from their country, Falun Gong members have sought political asylum and/or filed their complaints in other countries, mostly Australia, Canada and the United States.
They have tried to cross European borders too, such as the United Kingdom, Belgium and Spain, but as would be elaborated later, the results were not always favorable. It must be said that much of the cases against Chinese officials (including charges against President Jiang) are still pending before international courts. Those that are not, have not been adjudicated on the merits, but rather, dismissed on the grounds of “immunity. ” Most notable is the 2005 dismissal of a British Court of a case seeking the arrest of Trade Minister Bo Xilai for allegedly torturing Falun Gong members.
The British magistrate conveniently dismissed the suit on the ground of parliamentary immunity. Judge Workman told Bow Streets Magistrates Court, central London: “The real issue in this case is whether the proposed defendant is immune from prosecution… I am told that Mr. Bo is the Minister for Commerce including International Trade for the People’s Republic of China. As such, I have concluded that his functions are equivalent to those exercised by a Minister for Foreign Affairs.
” Of course, the action of the Court was not without precedence. As early as 1894, in the case of Mighell v. Sultan of Johore, English courts have refused to exercise jurisdiction on the heads of states and their official representatives. The refusal was premised on the theory that it would be absolutely inconsistent with the status of an independent sovereign that he should be subject to the process of a foreign tribunal, unless he deliberately submits to its jurisdiction.
Additionally, Lord Campbell in De Haber v. The Queen of Portugal declared that “to cite a foreign potentate in a municipal court . . . is contrary to the law of nations and an insult to which he is entitled to resist. ” The practical basis of this principle is that these parliaments should remain unhampered in the performance of their duties, and to subject them to trials under foreign courts would discourage them from leaving the premises of their country, to the prejudice of international relations.
However, the problem with the 2005 Bo Xilai decision is that it could have used the ruling of the House of Lords in the case of In Re Pinochet which would have allowed the House to adjudicate the charges ‘head-on. ’ In denying claims of immunity by Pinochet, the House of Lords argued that the allegations of torture, if true, could not have been considered official acts under international principles of immunity. Additionally, the House stated that crimes of humanity are so grave that the disregard of immunity is justified. On the other hand, the U. S.
courts have begun taking an opposite approach. American courts are now realizing that increased foreign relations and transactions between states would require guidelines to the claim of immunity. Otherwise, rights of private parties could be easily trampled. In other words, the principle of ‘restrictive theory’ has developed. Under this theory, in cognizing suits against a foreign parliament, a distinction must be made between acts done in the parliament’s official capacity, and those done in a purely private character. In case of the latter, the suit is not subject to dismissal.
In Republic v. Marcos, a Court of Appeals ruling, the act of state doctrine or principle of sovereign immunity, invoked by President Marcos, was not appreciated as the court observed that acts of torture, execution and disappearance were clearly outside the President’s authority and are not covered by the act of state doctrine. However, much like the Pinochet ruling, this too has been overlooked. American cases brought by Falun Gong advocates have mostly failed on the grounds of sovereign immunity. On the difficulties of prosecuting Jiang and the PRC
International instruments are replete with laws aimed at protecting victims of government harassment. The International Covenant on Civil and Political Rights (ICCPR), to which China is a party, contains the following pertinent provisions: “1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. 2.
No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice. 3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. 4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.
” Likewise, Articles 20, 26, and 27 of the ICCPR are important. In essence, these articles grant protection against “advocacy of religious hatred,” free exercise of religion and right to be freed from any discrimination on account of religion. Aside from the ICCPR, PRC and its officials may also be held accountable for the crime of “genocide” under the Rome Statute. Art. 5 thereof grants jurisdiction to the ICC of the crime of “genocide,” defined as any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group. True, the Falun Gong could file a case pursuant the Rome Statute, and witness the forthcoming claim of immunity finally fail. A perusal of Art.
27 of the Rome Statute quickly suggests that the framers knew the difficulty of holding foreign parliaments accountable. The article states that “immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person” (emphasis supplied). The problem is that under the Rome Statute, the failure of a suit in a domestic court is a condition sine qua non before the suit is cognizable by the ICC.
However it is unreasonable to expect a person within China’s borders to advocate for Falun Gong only to risk harassment. Second, the PRC is not a State-party to the ICC. While arts. 17 and 20 of the Rome statute do provide for the principle of “complementarity,” one must not lose sight that no obligation arising from a treaty may be imposed on a state not a party to such treaty. Finally, the complications of maintaining a suit against PRC or its officials transcends mere issues of substantive law. It poses serious procedural questions as well, such as concerns on jurisdiction and execution of judgment.
On the domestic sphere, assuming that Falun Gong advocates were able to hurdle the claim of sovereign immunity, and obtain an arrest warrant against Jiang, the warrant would be unenforceable outside the national borders of such domestic court. To enforce a state’s legal process within the territory of another state, without the latter’s consent, is to run counter to the principle of par in parem non habet imperium. This entire ordeal does not put China under scrutiny, but it does the international justice system. The writer could only hope that domestic courts give the victims at least the chance to vindicate themselves and their families.
Will it be impunity or shame? Jurisprudence supports both. Bibliography Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U. S. 682 (1976) Bacchus S. R. L. v. Servicio Nacional del Trigo, 1 Q. B. 438 (1975) Compania Mercantil Argentina v. United States Shipping Board, 131 LT 388 (1924) De Haber v. Queen of Portugal, 17 Q. B. 171 (1851) Mighell v. Sultan of Johore, 1 Q. B. 149 (1894). N. V. Caolent v. National Iranian Oil Company, 5 I. L. M. 477 (1975) The Compania Mercantil Argentina v. United States Shipping Board, 131 L. T. 388 (1924) The Eichmann Case, 26 I. L. R. 5 (Dist. Ct. Jerusalem) (1961) The Jussy (1906)
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