Shenzhen Authorities Issue Circular Outlining Punishments for "Abnormal Petitioning"

Shenzhen's Intermediate People's Court, Procuratorate, Public Security Bureau, and Justice Bureau reportedly jointly issued in November 2009 the "Circular Regarding the Lawful Handling of Abnormal Petitioning Behavior," (Circular) according to a November 13 Xinhua article. The Circular identified 14 types of "abnormal" petitioning behavior that would be subject to disciplinary action, according to the Xinhua article. As of January 20, 2010, while reports of the Circular and its contents have appeared widely on line and in the state-run media, the Circular itself does not appear to be publicly available. In a drive initiated by the mainland citizen group Civil Rights and Livelihood Watch, over 1,000 people signed an open letter demanding the repeal of the Circular, according to a December 1 Boxun article. According to an article on the Shenzhen Public Security Bureau Web Site dated November 11 (via the Shenzhen City Government Web site), among the types of behaviors the Circular reportedly defines as "abnormal" and links to the "disruption of public order" are the following: "chanting slogans," "raising banners," "wearing clothes upon which grievances are written," "displaying petition statements," "handing out information on petitioning," and "holding sit-ins."

The range of behaviors identified in the Shenzhen circular as prohibited is broader than the range prohibited by the national-level State Council Regulations on Letters and Visits (2005), according to the Xinhua article. Articles 18-20 of the State Council Regulations on Letters and Visits outline the limitations on petitioner behavior and disallow petitioners from harming "the interests of the State, society or the collective," "infringing upon the lawful rights of other citizens," and committing six types of acts, including "disrupting public order." The punishments outlined in the Shenzhen circular reportedly are more severe than those outlined in the national-level State Council Regulations on Letters and Visits (Articles 47 and 48), according to an article posted by a lawyer at the Guangdong Huashang Law Firm on the Beijing Law Information Net Web site. One mainland Chinese Academy of Social Sciences scholar who has researched China's petitioning system points out in his blog that the circular does not make the behaviors "illegal" but prohibits them by calling them "abnormal." He considers the circular's expanded list of prohibited behaviors as an "arbitrary interpretation that exceeds authority and has no basis."

Public discussions of the Shenzhen circular have included questions regarding the use of the document as a basis for legal action, according to a Global Times article (via People's Daily). The Circular reportedly outlines the following specific punishments for persons deemed by authorities to be guilty of "abnormal petitioning." For cases in which "abnormal petitioning" behavior persists, punishments are to be applied in the following sequence, according to a November 12 Guangzhou Daily article:

• (1) advise a first-time offender against "abnormal petitioning" and inform them that the next time, they will be given a "disciplinary warning"
• (2) penalize with a "disciplinary warning" (jinggao chufa)
• (3) punish through "administrative detention" (xingzheng juliu)
• (4) send to "reeducation through labor" (laodong jiaoyang) according to relevant reeducation through labor (RTL) rules and regulations.

Authorities may pursue criminal liability according to relevant laws if they think ongoing behavior constitutes a crime.

Chen Tao, a member of the criminal law committee of the government-controlled Beijing Lawyer's Association reportedly stated that, while some clauses of the Circular would help to regulate petitioning, it is primarily a document to be used for reference, and not as a foundation for law enforcement, according to the Global Times article. The article posted on the Beijing Law Information Net points out that the four issuing entities do not possess the same legislative authority that the local people's congresses and local people's congress standing committees in special economic zones and larger cities enjoy; nor do they have interpretive authority. At most, government administrative entities may make concrete operational suggestions regarding the implementation of legislation, according to the article. In addition, for the intermediate people's court and the procuratorate to become involved in administrative action too early would be tantamount to stripping away procedures for supervision and redress, also according to the same article. The Xinhua article points out that locally established rules may not contradict laws or administrative regulations, and that local rules may not deprive citizens of their rights or restrict freedom of person. According to the article, this can only be done through legislation passed by the National People's Congress (NPC) or the NPC Standing Committees. Article 9 of the PRC Administrative Punishment Law states that "Administrative penalty involving restriction of freedom of person shall only be created by law." Article 7 states that "[w]here an illegal act constitutes a crime, criminal responsibility shall be investigated in accordance with law; no administrative penalty shall be imposed in place of criminal penalty."

The Shenzhen circular is not the first to identify a broad scope of prohibited behaviors or to outline detention and RTL penalties for citizens who allegedly engage in "abnormal petitioning." A November 13 Financial Times article reported that petitioners from across China contacted by the paper said that they had been warned that if local officials determined their petitions were "abnormal" they could be sent to labor camps. On July 15, 2008, the Inner Mongolian Autonomous Region People's Procuratorate and Public Security Department jointly issued a document regarding the handling of "abnormal petitioning" behavior by people from the province who travelled to Beijing to air their grievances, according to a November 13 Boxun article (with a picture of the Inner Mongolia circular). Clauses 4-8 of the Inner Mongolia circular contain wording similar to the Shenzhen circular regarding the specific punishments petitioners may face for engaging in petitioning behavior local officials determine to be "abnormal," according to the article.

An official at the National "Letters and Visits (Xinfang) Bureau reportedly stated that survey results show 80 percent or more of citizens' petitions could be resolved at the local level and 80 percent are reasonable and involve real difficulties and problems that should be resolved, according to the Xinhua article. Citizens resort to "abnormal petitioning" due to obstacles that block normal access to channels for asserting their interests, according to the Xinhua article. The article asserts that, "some local governments still do not govern according to law; they may abuse their official authority, or even be in collusion with business or be shielding one another." Also according to the Xinhua article, officials in some locations see petitions as "trouble" and petitioners as "elements of instability." They "do not hesitate to allocate man power, material resources, and financial resources; utilize various methods; buy off; rope in by any means; hoodwink; or go so far as to beat or persecute petitioners" that could influence their "political points" or political career.

For additional information on petitioning (xinfang) in China, see Section III―Access to Justice (p. 238) in the CECC 2009 Annual Report.