The Independence of Judiciary in the People’s Republic of China

Geneva, 17.03.03 - 25.04.03 - Written Statement by the Society for Threatened Peoples
In his report (E/CN.4/2002/72), the Special Rapporteur on the independence of judges and lawyers, Dato’ Param Cumaraswamy regretted that the situation of the independence of the judiciary and the rule of law remains delicate throughout the world. He expressed particular concern about repeated efforts by some Governments to interfere with the independence of the judiciary which may go as far as removing judges.

China’s Constitution states that courts shall, in accordance with the law, independently exercise judicial power. In practice, the judiciary is subject to policy guidance from both the government and the Communist Party. At the local and central level, the government and particularly the Communist Party frequently interfere in the findings and proceedings of the judicial system and dictate court decisions. On 8 July 2002, BBC Online News report, "China vows to Overhaul Courts" quoted Xiao Tang, president of the Supreme People's Court of China as saying that "incompetent" judges were making the system unfair. The report said that most of China's more than 200,000 judges have no legal training and have traditionally been appointed for political reasons. Mr. Xiao even revealed: "Courts have often been taken as branches of the government, and judges viewed as civil servants who have to follow orders from superiors, which prevents them from exercising mandated legal duties like other members of the judiciary.

In the Autonomous Region of Tibet, for example, majority of the people who act as judges have little or no background or legal training. Trials are closed and invariably defendants are not allowed service from competent lawyers. Chinese Criminal Law grants defendants a right to appeal within 10 days of sentence - but a successful appeal is rare as cases incited in this statement will show. In recent months, the most internationally known case was the death sentence passed on two Tibetans, Tulku Tenzin Delek (aka Angag Tashi or Tenzin Delek Rinpoche) and Lobsang Dhondup. According to Sichuan People’s Daily issue of 3 December 2002, Lobsang Dhondup was given an immediate death penalty and Tulku Tenzin Delek was sentenced to death with a suspension of two years.

On 2 December 2002, a hearing was held at Karze Intermediate People’s Court in Karze under the so-called "Tibet Autonomous Prefecture", in present-day Sichuan province of the People's Republic of China. The two Tibetans were charged with alleged involvement in a bomb blast incident on 3 April in the city’s main square (Tianfu) in Chengdu, the provincial capital. Other charges levelled against them are, "illegal possession of arms” and "engaging in splittist activities”. It was also reported that Tulku Tenzin Delek accused the court of false allegations and unfair trial proceedings and shouted, "Long Live His Holiness the Dalai Lama.”

Later when the case was about to be referred to the Sichuan Higher People ’s Court when two prominent Chinese lawyers, Zhang Sizhi and Li Huigeng, were prepared to defend Tulku Tenzin Delek at the request of his brother, Tsering Lolo. However, Wang Jinghong, Judge of Sichuan Provincial Court, informed the two Chinese lawyers on 29. December 2002 that their services were unnecessary. Instead, two local lawyers were to represent the two Tibetans. Observers believed that only lawyers outside of Sichuan province could render a competent defense, as they would be beyond the control of provincial authorities. Also, the two local lawyers would be unlikely to have the capability and courage to mount a vigorous defense since they reside within region and are dependent on the Chinese authorities. Fears then mounted that a re-trial request upon appeal will not be fair.

According to sources, Chinese officials visited Tsering Lolo's residence in Lithang County on 27 December 2002 and threatened him for attempting to hire lawyers from Beijing. Tulku Tenzin Delek had in the meantime initiated an indefinite hunger strike on 6 January 2003 in protest of his treatment in detention and for denying him a fair trial.

This unprecedented development in the human rights situation in Tibet was widely reported by the world media with western governments, including the European Union and the United States of America, intervening to the Chinese authorities. On 21 January, Radio Free Asia's Tibetan Service broadcast a tape-recorded message smuggled out of Tulku Tenzin Delek's Chinese jail, in which the influential Tibetan Buddhist teacher and social worker insisted he had nothing to do with a series of bomb blasts. "Whatever [the authorities] do and say, I am completely innocent," Tulku Tenzin Delek, says in the message, tape-recorded on 18 January at his prison-cell in Dartsedho (Ch: Kangding). "I have always urged people to be kind-hearted and caring toward others. Everybody knows what I say and practice.

8. On 23 January, 2003, the US government expressed concern over reports that the Chinese authorities even detained as many as 10 Tibetans in recent months in connection with the arrests of Tulku Tenzin Delek and Lobsang Dhondup. A Chinese official confirmed accounts that at least one more Tibetan was imprisoned and others detained in connection with a case. The US Embassy in Beijing said Chinese officials did not mention the additional cases to Mr. Craner, though it said that during the talks he expressed ''deep concern'' about the condemned man, Lobsang Dhondup, and a Tibetan Buddhist leader who was convicted with him. "It is now clear that these arrests had taken place well before the dialogue, and we are disappointed that Chinese authorities failed to inform us of them when we raised our concerns about two of the cases," the embassy said in a written statement.

On 27 January 2003, Xinhua, the official news agency of the Chinese authorities, announced that Tulku Tenzin's Delek's appeals had been rejected by the Higher People's Court of Sichuan Province but added that Lobsang Dhondup had not appealed. The official news agency also accused the two Tibetans of trying to sabotage the unity of the country and the unity of various ethnic groups. They ignited explosives in public places and engaged in crimes of terror. Both of them confessed their crimes. According to this report, Tulku Tenzin Delek's two appeals were defended by Chen Shichang and Yu Jianbo, two counsels from the Garze Prefectural Lawyers' Office. Lorang Toinzhub (Lobsang Dhondup) did not entrust a counsel for his defense. The Intermediate People's Court of Garze and the Sichuan Higher People's Court designated Kuai Qinghua and Liu Shijian, two lawyers from the same lawyers' office, to defend Lorang Toinzhub.

Lobsang Dhondup was executed at around 7 am on Sunday, 26 January 2003 at a secret location. "On the matter of carrying out a death sentence, this is done in accordance with an entire set of regulations and a rigorous investigation process," Chinese Foreign Ministry spokeswoman Zhang Qiyue told reporters in Beijing on 27 January...therefore, our judicial department would deal with terrorists using bombs or any other person posing a security risk in the same manner as any other country," she added. Unconfirmed information coming out of Tibet said that Lobsang Dhundup’s ears had been cut off and his mouth and nose were all badly bruised. His body was not handed over to his family. Before his execution Lobsang Dhundup experienced atrocious torture.

Lobsang Dhondup was born on 15 June 1974 in the village of Duphutse in Ngyachu in Kham, now incorporated into the Chinese province of Sichuan. His father's name is Phuntsok who passed away a few years ago. His mother is Kathar Lhamo who is about 50 years old. When small Lobsang Dhondup helped his parents in farming their small plot of land. Years later, he married and fathered two sons. Later he left his family to become a monk at a monastery run and managed by Tulku Tenzin Delek. He remained at the monastery for about a year and then left the monastery to take to business. He sold mushroom and medicinal herbs to Chinese clients.

On 27 January, Mr. Gerd Poppe, Federal Government Commissioner for Human Rights Policy and Humanitarian Aid at the Federal Foreign Office of Germany said in a statement: "The confirmation on 26 January by the Chengdu Higher People's Court of the death sentences imposed on two Tibetans, Tenzin Deleg Rinpoche and Lobsang Dhondup, is cause for grave concern...Even if reports that the execution of Lobsang Dhondup has already been carried out have yet to be officially confirmed, the sentence is a flagrant breach of the pledges made by the Chinese side, which had given an assurance that it would keep the EU informed of developments in the case... Worldwide abolition of the death penalty is one of the priorities of German and European policy on human rights. I therefore appeal urgently to the Chinese Government to guarantee due process and give the accused a fair chance to defend themselves.”

On 28 January, the United States State Department statement said, "We've repeatedly expressed our concern to Chinese authorities since December about Lobsang Dhondup and Tenzin Delek Rinpoche. The secrecy with which these trial were conducted, the lack of due process accorded to these two defendants, and the severity of the sentences are evidence of China's dismal human rights record...The Chinese foreign ministry repeatedly assured us and other members of the international community that the Supreme People's Court would review the cases before any sentence was carried out. It is now clear that the Supreme Court review did not take place...These issues raise serious questions about China's adherence to its own criminal laws and the People's Republic of China's respect for rule of law and international legal standards.

On the same day, British Foreign Office Minister Bill Rammell renewed calls for the abolition of the death penalty in China following the execution of Lobsang Dhondup and the sentencing to death of Tenzin Delek Rinpoche. "I was dismayed to learn that Lobsang Dhondup was executed on 26 January. The UK strongly supported the two EU demarches made by the EU Presidency on this case. We are urgently consulting our EU partners about further representation to the Chinese," the statement said.

In view of the development concerning the human rights situation in Tibet, we appeal to the Commission on Human Rights to ensure all appropriate action to censure China's overall human rights record. The case of Lobsang Dhondup's execution and the imprisonment of Tulku Tenzin Delek and other Tibetans is clearly one which did not even observe minimum standards. The execution of Lobsang Dhondup was clearly a provocation to the Tibetans who have been waging a non-violent freedom struggle for the past more than four more decades. This repressive policy comes at a time when the Chinese government is sweepingly branding political activities as acts of terrorism following the September 11 incident. Amendments to the Chinese Criminal Law adopted in December 2001 place severe punishments for those who "organize or lead a terrorist organization" from three years to ten years’ imprisonment to between ten years and life (article 120 of the Criminal Law). The term "terrorist organization" is not defined thereby allowing a broad and ambiguous range of interpretation including non-violent political activities