1. For an excellent and well-informed discussion of many of the issues and institutions mentioned only briefly here, see Lawyers Committee for Human Rights, Criminal Justice with Chinese Characteristics (New York: Lawyers Committee for Human Rights, 1993)Google Scholar. This book was authored by Timothy A. Gelatt, to whose memory this article is dedicated.

2. See Note, Generally, “Concepts of law in the Chinese anti-crime campaign,” Harvard Law Review, Vol. 98, No. 8 (June 1985), pp. 1890–1908.Google Scholar

3. See, for example, Bingsong, He, “Woguo de fanzui qushi, yuangu yu xingshi zhengce” (“Trends and causes of crime in our country and criminal policy”) Zhengfa luntan (Politics and Law Forum), No. 5 (1989), pp. 37–45Google Scholar (Part 1); No. 6 (1989), pp. 1–11 (Part 2).

4. The most commonly cited source for this theory is his 1957 speech “On the correct handling of contradictions among the people.” A revised and edited version of the speech appears in English in Tse-Tung, Mao, Selected Works of Mao Tse-tung (Vol. 5) (Beijing: Foreign Languages Press, 1977), pp. 384–421.Google Scholar

5. Min, Cui, “Xuehui shiyong he yonghao falü wuqi” (“Learn how to use and use well the weapon of law”), Faxue zazhi (Jurisprudence Magazine), No. 5 (1983), p. 14.Google Scholar

6. The Security Administration Punishment Regulations are discussed in greater detail below.

7. Mao Zedong, “Contradictions among the people.”

8. For a personal account of life in a labour camp, see Ying, Lai, The Thirty-Sixth Way (Garden City, NY: Doubleday, 1969Google Scholar). An excellent general study is Hongda Wu, Harry, Laogai-The Chinese Gulag (Boulder: Westview Press, 1992)Google Scholar.

9. See, for example, Art. 139, para. 1, which punishes but does not define rape. Para. 2, by contrast, does define one act that will constitute rape: having sexual relations with a girl under 14.

10. He Bingsong, “Woguo de fanzui qushi, yuangu yu xingshi zhengce” (Part 1), p. 40.

11. Zhongguo falü nianjian 1993 (Law Yearbook of China 1993) (Beijing: Zhongguo falü nianjian she, 1993), p. 935.

12. In many cases, it is likely that what are in fact political offences are prosecuted under other rubrics.

13. Criminal Procedure Law, Art. 134.

14. Shanghai Municipal Lawyers Association Research Department, “Shanghai zhuyi zuohao ‘dongluan anjian’ de xingshi bianhu gongzuo (huibao tigang)” (“Shanghai concentrates on doing a good job of criminal defence work in ‘turmoil-related cases’ (outline of report)”), Shanghai liishi (Shanghai Lawyer), No. 427 (10 January 1990), pp. 10–15; translated in Human Rights in China, Going Through the Motions: The Role of Defense Counsel in the Trials of the 1989 Protesters (New York: Human Rights in China, 1993), pp. 16–20.Google Scholar

15. In 1987, for example, a Taiwanese man was arrested and expelled from China for attempting to attend the trial, proclaimed “public” by the government, of a political defendant in Shanghai. Southerland, Daniel, “China ousts Taiwanese for Shanghai protest,” Washington Post, 24 December 1987, p. A9Google Scholar. The government correctly interpreted his attempt to attend a “public” trial without government permission as a political challenge and reacted accordingly.

16. Jiebing, Sun, “Dangqian fayuan shishi duli shenpan de zuli ji duice” (“Obstacles and solutions to the implementation of independent adjudication by courts today”), Xiandaifaxue (Modern Jurisprudence), No. 1 (1989). p. 45.Google Scholar

17. All-China Lawyers Association, “Guanyu dangqian zai shenli dongluan he fangeming baoluan anjian zhong de liishi bianhu gongzuo qingkuang tongbao” (“Circular on “The defence work of lawyers in the current trials of cases related to the turmoil and counterrevolutionary rebellion”), Shanghai liishi. No. 427 (10 January 1990), pp. 1–3; translated in Human Rights in China, Going Through the Motions, pp. 7–8.

18. Gelatt, Timothy A., “Lawyers in China: the past decade and beyond,” New York University Journal of International Law and Politics, Vol. 23, No. 3 (Spring 1991), p. 762Google Scholar; “Circular on “The defense work of lawyers',” in Human Rights in China, Going Through the Motions, p. 8.

19. On punitive administrative regulations and practices in general, see Lawyers Committee for Human Rights, Criminal Justice with Chinese Characteristics; Amnesty International, China - Punishment Without Crime: Administrative Detention (New York: Amnesty International, 1991). A number of important documents frequently referred to in this and other discussions of the subject have been collected and translated, with an introduction, in Epstein, Edward J. (ed.), “Legal documents and materials on administrative detention in the People's Republic of China,” Chinese Law and Government, Vol. 27, No. 5 (1994).Google Scholar

20. Zhonghua Renmin Gongheguo zhi'an guanli chufa tiaoli (Security Administration Punishment Regulations of the People's Republic of China), effective 1 January 1987, as amended, in Guowuyuan gongbao (State Council Gazette), No. 11 (27 June 1994), pp. 440–48.

21. Zhongguo falü nianjian 1993, pp. 935, 941.

22. Gambling, opium-smoking, and prostitution-related offences are subject to vastly greater fines of thousands of yuan.

23. Guoqing, Dang, “Qiantan laodong jiaoyang xuexiao” (“A brief discussion of labour I re-education schools”), Zhongguo fazhi bao (Chinese Legal System News), 29 April 1985, p. 3Google Scholar. The translation is slightly modified from that provided in Amnesty International, Punishment Without Crime.

24. Guowuyuan guanyu laodong jiaoyang de buchong guiding (Supplementary Rules of the State Council on Re-education Through Labour), 29 October 1979, in Zhonghua Renmin Gongheguo falü quanshu (Compendium of the Laws of the People's Republic of China) (Changchun: Jilin renmin chubanshe, 1989), p. 1574.

25. Laodong jiaoyang shixing banfa (Trial Procedures on Re-education Through Labour), 21 January 1982, in Ibid. p. 1583.

26. Ministry of Justice, “Laodong jiaoyang guanli gongzuo zhifa xize” (“Detailed rules on implementing the law in the administration of re-education through labour”), 10 August 1992, in Guowuyuan gongbao. No. 26 (1 December 1992), p. 1055.

27. This complaint is made in Ge, Fu, “Laodong jiaoyang lifa de lilun yu shijian” (“The theory and practice of legislation on re-education through labour”), Faxue (Jurisprudence), No. 7 (1987), p. 44.Google Scholar

28. Shourong shencha is usually translated as “shelter and investigation.” Although shourong, perhaps most precisely translated as “to take in,” can mean to shelter, in this context it means to take into custody, and the benevolent connotations of “shelter” are out of place.

29. Amnesty International, Punishment Without Crime, p. 9.

30. “Shourong shencha shi zenme hui shi?” (“What is custody and investigation?”), Zhongguo fazhi bao (Chinese Legal System News), 30 August 1986, p. 3.

31. This fact is attested to not only by numerous reports in the Chinese press, but also by a recent Ministry of Public Security regulation that admits as much: Guanyu jinyibu kongzhi shiyong shourong shencha shouduan de tongzhi (Notice on Further Controlling the Use of the Method of Custody and Investigation), 11 June 1991, in Zui'an sucheng shouce (Handbook on the Prosecution of Criminal Cases) (Beijing, 1992), pp. 260–62.

32. See, for example, Ibid. 33. Universal Declaration of Human Rights, General Assembly Res. 217A(III), United Nations Document A/RES/217A (III) (1948) (UDHR).

34. State Council, “Human Rights in China,” reprinted in Beijing Review, 4–10 November 1991, at p. 42 (1991 State Council Report).

35. Ibid. p. 8.

36. International Covenant on Civil and Political Rights, General Assembly Resolution 2200 (XXI), U.N. GAOR, 21st Sess.. Supp. (No. 16) 52, U.N. Doc. A/6316 (1967), reprinted in International Legal Materials, Vol. 6, p. 368 (1967) (ICCPR).

37. International Covenant on Economic, Social and Cultural Rights, General Assembly Resolution 2200A(XXI), U.N. GAOR, 21st Sess., Supp. (No. 16) 49, U.N. Doc. A/6316 (1967), reprinted in International Legal Materials, Vol. 6, p. 360 (1967) (ICESCR).

38. ICCPR, Art. 4, para. 2.

39. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, General Assembly Resolution 39/46 Annex, 39 U.N. GAOR, Supp. (No. 51) 197, U.N. Doc.E/CN.4/1984/72, Annex (1984), reprinted in International Legal Materials, Vol. 23, p. 1027 (1984) (Torture Convention).

40. Torture Convention, Art. 2, para. 1. China takes the position that since the Torture Convention, as international law, is legally binding in China, no additional domestic implementing legislation is required to implement it.

41. Ibid. Art. 4, para. 1.

42. Art. 136 of the Criminal Law (no coerced statements); Art. 134 of the Criminal Law (punishing injuries resulting from torture); Art. 143 of the Criminal Law (no unlawful detention; sanctions beatings, humiliation, serious injury or death resulting therefrom); Art.

43. Art. 32 of the Criminal Procedure Law (prohibiting torture to coerce statements and threat, enticement, deceit or other unlawful methods of gathering evidence).

44. Amnesty International, Torture in China (1992) (AI Torture Report) notes widespread practice of torture and ill-treatment of prisoners in the PRC, based on a memorandum which Amnesty International addressed to the Chinese government in early November 1992.

45. Torture and other forms of mistreatment most often occur during interrogation and reportedly include: beatings; assaults with electric batons; use of handcuffs, shackles and chains; suspension by the arms or feet; confinement in tiny and/or dark cells; deprivation of sleep or food; exposure to cold or heat; prolonged solitary confinement; and force-feeding of prisoners on hunger strikes. Ibid. pp. 5–10.

46. Ibid.

47. See Ibid. pp. 46–53.

48. Criminal Law, Arts. 136, 143, 147 and 189.

49. See Lawyers Committee for Human Rights, Criminal Justice with Chinese Characteristics (New York: Lawyers Committee for Human Rights, 1993), pp. 75–76Google Scholar (predicting that the Administrative Litigation Law is unlikely to be effective in political cases). The State Compensation Law of 1994 promises an additional means of redress for official misconduct, including false arrest and police brutality, but it seems unlikely to be any more effective in practice than its predecessor.

50. AI Torture Report, pp. 52–53 (recounting lack of effective procedures for handling complaints) and pp. 53–56 (detailing AI's recommendations for prevention of torture).

51. Shirong, Fang, “Xingzheng susong shou'an zhong dui gongan jiguan xingshi zhencha xingwei de shibie” (“How to distinguish an act of criminal investigation by public security organs when accepting administrative lawsuits”), Faxue, No. 8 (1994), p. 29.Google Scholar

52. Criminal Procedure Law, Art. 41.

53. Ibid. Art. 43.

54. Ibid.

55. See Amnesty International, China: Violations of Human Rights, Prisoners of Conscience and the Death Penalty in the People's Republic of China (London: Amnesty International, 1984), p. 92.Google Scholar

56. Criminal Procedure Law, Art. 44.

57. Ibid. Art. 48.

58. Ibid. Arts. 47 and 48.

59. Department of State, 104th Cong., 1st Sess., Country Reports on Human Rights Practices for 1993: China, Section 4, Section l(d) (1993 State Department Report); Department of State, 103d Cong., 1 st Sess., Country Reports on Human Rights Practices for 1991 (Jt. Comm. Print 1992), p. 812.

60. 1994 State Department Report, Section l(e). Re-education through labour is further discussed above.

61. Human Rights Declaration, Art. 10.

62. Ibid. Art. 11, para. 1. Art. 14, para. 3 of the Political Covenant lists a number of • minimum guarantees to which every defendant is entitled: the right to be informed promptly of the nature of charge, adequate time for the preparation of a defence and to communicate with counsel of one's own choosing, to be tried without undue delay and to examine hostile r witnesses.

63. Criminal Procedure Law, Art. 111.

64. 1994 State Department Report, Section l(e).

65. See Renmin fayuan fating guize (shixing) (Rules of Court of the People's Courts (for trial implementation)), 11 December 1979, in Zhonghua Renmin Gongheguo falü quanshu, p. 289.

66. Criminal Procedure Law, Art. 28.

67. Ibid. Art. 8.

68. Ibid. Art. 26.

69. Ibid. An. 110.

70. Decision of the Standing Committee of the National People's Congress Regarding the Procedure for Rapid Adjudication of Cases Involving Criminal Elements Who Seriously Endanger Public Security, adopted by the Second Session of the Standing Committee of the Sixth National People's Congress, 2 September 1983, in The Criminal Law and the Criminal Procedure Law of China (Beijing: Foreign Languages Press, 1st ed. 1984), pp. 246—47.

71. Jones, William C., “Constitution of China,” Washington University Law Quarterly, Vol.63, p. 710 (1985).Google Scholar

72. Shapiro, Judith and Heng, Liang, Cold Winds, Warm Winds (Middleton CT: Wesleyan University Press, 1986), pp. 30–31.Google Scholar

73. See the long list of prisoners in Watch, Asia, Detained in China and Tibet (New York: Human Rights Watch, 1994).Google Scholar

74. Central Political-Legal Commission, “Guanyu dui edu gongji, feibang zhongyang lingdao tongzhi shi fou goucheng fanzui wenti de yijian” (“Opinion on the question of whether viciously attacking or slandering central leading comrades constitutes a crime”), 17 December 1981Google Scholar, in Zuigao renmin jianchay uan konggao shensu jianchating, (ed.), Jubao shensu gongzuo fagui shouce (Handbook of Law and Regulations Relating to Reporting Malfeasance and Petitions) (Beijing: Zhongguo da baike quanshu chubanshe, 1990), Vol. 1, p 72.Google Scholar

75. Art. 35 provides that “citizens of [China] enjoy freedom of speech, of the press, of assembly, of association, of procession and of demonstration.” Art. 41 provides, in part, that “citizens of [China] have the right to criticize and make suggestions to any state organ or functionary.” However, Art. 51 of the 1982 Constitution provides that, in exercising freedoms and rights, the citizens of China “may not infringe upon the interests of the state, of society and of the collective, or upon the lawful freedoms and rights of other citizens.”

76. See 1994 State Department Report, Section 2(a).

77. Both articles state that no restrictions may be placed on the exercise of these rights other than those imposed in conformity with the law and necessary in a democratic society to protect the “interests of national security or public safety, public order… public health or morals or… the rights and freedoms of others.”

78. Law of the People's Republic of China Governing Assemblies, Marches, and Demonstrations (passed by the Standing Committee of the National People's Congress on 31 October 1989), Art. 4, in BBC, Summary of World Broadcasts, 2 November 1989. Municipal rules have been adopted for the implementation of the Demonstrations Law in Lhasa and Beijing.

79. See “Regulations on the registration and management of social organizations,” State Council Gazette, No. 21 (1989), pp. 779–783.

80. Demonstrations Law, Art. 12, paras. 2, 3.

81. Ibid. Art. 2.

82. Art. 36 of the 1982 Constitution provides that “citizens of the [PRC] enjoy freedom of religious belief. No state organ… may compel citizens… not to believe in any religion; nor… discriminate against citizens who believe in… any religion.” Only “normal religious activities” are protected; use of religion to “disrupt public order, impair the health of citizens or interfere with the educational system of the state” is proscribed. See also 1994 State Department Report, Section 2(c).

83. Tibetan Buddhists are the religious group in China which has suffered the most from the imposition of government restrictions on the practice of their religion. Catholics, Moslems, Protestants and Buddhists from other ethnic groups, including Han Chinese, have also been subjected to a variety of government controls. See Asia Watch, Continuing Religious Repression in China (1993) (discussing repression against Chinese Catholics and Protestants).

84. International Convention on the Elimination of All Forms of Racial Discrimination, 660 U.N.T.S. 195, reprinted in International Legal Materials, Vol. 5 (1966), pp. 350–368 (Convention Against Racial Discrimination).

85. For example, Art. 5 protects equal treatment before tribunals and all other organs administering justice; right to security of person; political rights; right to freedom of movement; right to freedom of thought, conscience and religion; right to freedom of opinion and expression; right to freedom of peaceful assembly and association; right to work; right to public health, medical care and social services; and right to housing, education and training.

86. The ICESCR provides, in relevant part, that all peoples have the right of self-determination and may freely dispose of their natural wealth and resources (Art. 1), the widest possible protection and assistance should be accorded to the family (Art. 10), everyone has the right to an adequate standard of living for oneself and one's family (Art. 11), and everyone has the right to education (Art. 13). See also 1994 State Department Report, Section 5.

87. Art. 2, para. 2 of the ICESCR provides that such rights shall be available “without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

88. Quoted in Fang, , “Renmin fayuan zai guojia jigou zhong de diwei” (‘The position of the people's courts in the structure of the state), Faxue zazhi. No. 4 (1985), at pp. 15, 16.Google Scholar

89. Officials who don't know any better may, of course, say so privately. When Democracy Wall activist Liu Qing was unlawfully detained in 1979, one of his guards remarked to him, ” ‘Doing things according to law’ isn't set in concrete; there are lots of exceptions. When the Public Security Bureau chief or the Beijing mayor or Party secretary or a Standing Committee member gives a direct order, even in the absence of proper procedures we have to lock the person up.” Liu Qing, Yuzhong shouji (Prison Notebook), p. 27 (1981).

90. See, for example, “China revokes passport of expelled labor leader,” New York Times, X 22 August 1993, at p. 6, reporting the expulsion from China of labour leader Han Dongfang. Officials at the New China News Agency in Hong Kong, China's de facto embassy, told him he had been expelled and his passport revoked because he had broken Chinese law, but refused to say which laws he had broken, how he had broken them, or who had decided to revoke his passport. A similar claim-that Han's passport had been revoked in accordance with “relevant laws and regulations” - was repeated by a Ministry of Public Security official later that month, but again the laws referred to were not specified. See “Han's entry banned,” China Daily, 28 August 1993, at p. 1. As of the date of writing, the government has not revealed the existence of any law that permits the expulsion of Chinese nationals from the country as a punishment or indeed for any other reason.