Report in which the committee requests to be kept informed of development - REPORT_NO292, March 1994

1. 368. The Committee examined this case as its meeting of February 1993 (see 286th Report of the Committee, paras. 674-728, approved by the Governing Body at its 255th Session (March 1993)) when it reached interim conclusions.
2. 369. Subsequently, in a communication dated 23 August 1993, the International Confederation of Free Trade Unions (ICFTU) submitted new allegations. The Government provided additional replies in a communication received on 6 October 1993 and in a letter dated 31 January 1994.
3. 370. China has ratified neither the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), nor the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 371. At its meeting in February 1993, the Committee examined a complaint made by the International Confederation of Free Trade Unions (ICFTU) concerning the Trade Union Act of 3 April 1992 and acts of pressure - including physical beatings - against independent trade union activists, the sentencing, detention and dismissal of workers and obstacles to the functioning of independent trade unions and, in particular, the Free Trade Union of China which announced its establishment in May 1992.
2. 372. At this meeting, the Committee made the following recommendations (see 286th Report of the Committee, para. 728):
   • (a) Taking note that many provisions of the Trade Union Act adopted in April 1992 are contrary to the ILO's fundamental principles concerning the right of workers without distinction whatsoever to form and join organizations of their own choosing without previous authorization and the right of trade unions to establish their constitutions, organize their activities and formulate their programmes, the Committee requests the Government to take the necessary steps to ensure that the provisions in question, mentioned in the conclusions, are modified.
   • (b) The Committee requests the Government to provide information on legislation and practice in respect of collective labour dispute settlement and to indicate in particular whether the Provisional Regulations of 1987 are still in force.
   • (c) The Committee asks the Government to supply its observations on the allegations according to which Mr. Han Dongfang has been subjected to pressure, including physical beatings.
   • (d) The Committee requests the Government to state precisely what concrete acts were committed by Messrs. Tang Yangjuan, Lui Wei and Leng Wambao that they should have been convicted of subversion by the police authorities of Changchun.
   • (e) Although noting that certain persons mentioned in the complaint have been released, the Committee expresses its serious concern at the severity of the sanctions pronounced by the tribunals against the workers who are members or leaders of workers' autonomous federations; it asks that these cases be re-examined in order to put an end to the detention of these workers mentioned in the annex. It requests the Government to provide it with information on further developments in this respect.
   • (f) The Committee requests the Government to submit its observations on the allegations concerning the demand by the Communist Party that an in-depth investigation be conducted to track down the Free Trade Union of China.

B. New allegations of the complainant organization

1. 373. In a communication dated 23 August 1993, the ICFTU makes new allegations concerning the situation of Mr. Han Dongfang, an official of the Autonomous Federation of Workers of Beijing. It explains that Mr. Han Dongfang, after being detained without trial for 22 months because of his participation in the 1989 demonstrations on Tiananmen Square and his independent trade union activities, was released in November 1991, when the Government withdrew its charges against him. Because of tuberculosis, which he contracted during his detention, the Chinese authorities authorized him to travel to the United States where he remained from September 1992 to August 1993 to undergo medical treatment.
2. 374. However, the complainant organization states that, after participating in the World Conference on Human Rights in Vienna and the International Labour Conference as a member of the ICFTU delegation, Mr. Han Dongfang was informed of his dismissal by his employer, the Beijing Railway Authority. The ICFTU states that on 13 August 1993 Mr. Han Dongfang returned to China, through the city of Huizhou, from where he wished to go on to Beijing. The following day, public security officials interrogated him in his hotel room in Guangzhou and forced him to leave China. His expulsion from China was against his will and without reason and he was beaten and injured.
3. 375. According to the ICFTU, the only justification for this measure so far was given by the New China News press agency in Hong Kong which has reported that:
   • Han Dongfang was released on probation by the authorities in September to allow him to undergo medical treatment. Before his departure he promised not to take any action against the Chinese Constitution or against the national interest. However, once he arrived in the United States, Han Dongfang did not keep his promise. That is why the competent Chinese authority decided, in accordance with the law, to prohibit him from returning to Chinese territory.
4. 376. The ICFTU alleges that this statement is incorrect. First, Mr. Han Dongfang was never released on probation; since the court decided not to uphold the charges against him when he left for the United States, he could not be considered as a prisoner on probation. Secondly, he was never refused permission to return to China; when he was already on Chinese territory he was expelled after being led to the frontier between Hong Kong and China by the security forces.

C. The Government's reply

1. 377. In its reply received on 6 October 1993, the Government states that it has already set out the principles on which its position is based in this case and that it would now like to clarify and explain certain points concerning the conclusions and questions raised by the Committee in its 286th Report.
2. 378. As regards legislation and practice concerning labour dispute settlement, the Government states that the Chinese policy and legislation on this subject have been drawn up in accordance with the reform process and current opening up of the country and in the light of experiments successfully carried out in other countries and advice provided by ILO experts. It explains that labour disputes are dealt with at three levels: by mediation within the enterprise, by arbitration at the local level and by court decisions. Most medium and large enterprise have set up labour dispute mediation committees composed of representatives of the workers, management and the trade union. These committees rule on labour disputes arising in the enterprise and which are submitted on a voluntary basis. Around 90 per cent of labour disputes are settled by these mediation committees.
3. 379. The Government goes on to say that there are at present more than 2,800 local committees (at the level of the counties, towns, districts, large cities and provinces). They are made up of an equal number of representatives of the labour administration, trade unions and enterprises, and are responsible for the arbitration of labour disputes. Around 70 per cent of the arbitration awards issued by the local committees allow the disputes to be settled. When one of the parties to a dispute disagrees with the arbitration award, it may take the case to a people's court and, if it also disagrees with the decision made by this court, to the Intermediary Court which will issue a final and executory decision. The Government states that the labour dispute settlement procedure provides sufficient, effective and fair protection of the rights and interests of enterprises and workers. To illustrate this statement, the Government gives two examples of labour disputes involving in each case a woman worker and an enterprise which were settled in favour of the workers by the Intermediary Courts ruling on appeal. The Government also quotes statistics gathered by the labour dispute arbitration institutions of Beijing which show that around one-third of more than 700 disputes were settled in favour of the management of enterprises, one-third in favour of the workers and one-third after mediation.
4. 380. As regards in particular the penalties contained in the Provisional Regulations of 1987, the Government states that these apply to offences and crimes which are not a matter of freedom of association. Furthermore, it points out that the Provisional Regulations of 1987 on labour dispute settlement in state enterprises was repealed on 1 August 1993 and replaced by the Regulations on the labour dispute settlement in enterprises in the People's Republic of China. As compared with the Provisional Regulations of 1987, the new Regulations: (i) now apply to all enterprises; (ii) extend arbitration to disputes on the application of state regulations on wages, insurance, welfare, training and the protection of labour; and (iii) establish precise rules on arbitrators and the arbitration system by the courts to improve the sense of responsibility and efficiency of staff in the field. The Government adds that the new Regulations also establish more clearly defined penalties for infringements of the law. Thus section 37 lists a number of acts which are prohibited during the settlement of a labour dispute and for which the arbitration committee may criticize and educate persons having committed these acts, order them to redress the acts and punish them in accordance with the respective provisions of the "Penal Regulations on public safety of the People's Republic of China". The perpetration of a serious crime engages the criminal responsibility of the author. The Government concludes that in the light of all these provisions there is little likelihood of any violation of the principle of freedom of association.
5. 381. As regards the allegations that Mr. Han Dongfang was subjected to acts of pressure, including physical beatings, the Government returns to the housing dispute in which this person was involved. It states that an inquiry which it carried out in 1983 shows that in 1983 Mr. Han Dongfang had concluded an agreement with an enterprise that the two-roomed apartment which he occupied with his family would be transformed into offices and that a four-roomed apartment would be temporarily provided for him until a three-roomed apartment, which was still being constructed, became available. However, on two occasions in 1985 and 1992, Mr. Han Dongfang and his family once again installed themselves in the former two-roomed apartment, despite a new agreement reached with the enterprise in 1987 and the order to evacuate the premises given by the people's court. During a hearing on this case, on 14 May 1992, Mr. Han Dongfang insulted officials and injured one of them with a chair. He also intentionally hit his head against a table and injured his own face with a chair in an attempt to intimidate the court. The officials took steps to defend themselves against the injuries which Mr. Han Dongfang was inflicting on them and to stop his illegal action. The Government concluded that it was necessary for the court to take these measures which were moreover totally legal and that Mr. Han Dongfang alone was responsible for the incident which occurred on 14 May 1992. According to the Government, the allegation that "justice officials hit him with an electric truncheon and beat him unconscious" is totally unfounded.
6. 382. As regards the sentencing on charges of subversion of Messrs. Tang Yangjuan, Liu Wei and Leng Wambao, the Government states that, as it had pointed out earlier, these persons were not sentenced to an "education through labour" system but to punishment ordered by the people's court of the district of Changchun after being found guilty of conspiracy to set up an illegal organization to overthrow the Government. In April 1989, these persons, along with others from the same enterprise, secretly prepared for the establishment of an illegal organization with Mr. Tang as its leader. During the month of May, they instigated innocent workers to go on strike, to obstruct production and to attack the buildings of the municipal government. During the course of public demonstrations, they called for the overthrow of the Government. On 23 May Messrs. Tang and Lei, as well as other persons, disrupted public order on the central square of Changchun, which resulted in car accidents and the total paralysis of traffic on the square and public disorder. The Government concludes that it was clear, during these events, that Messrs. Tang Yangjuan, Liu Wei and Leng Wambao were not exercising trade union activities or trying to protect the interests of workers but on the contrary were infringing Chinese penal law by endeavouring to set up an illegal organization to overthrow the Government. This was why it was necessary and appropriate for the people's court to impose sanctions on them. Thus, according to the Government it is incorrect to conclude that they were the victims of "a clear infringement of basic human rights".
7. 383. As regards the allegation concerning the request of the Communist Party to carry out an in-depth inquiry to track down the Free Trade Union of China, the Government states that, contrary to the statement of the complainant organization, no trade union organization called the "Free Trade Union of China" was ever set up in May 1992. There has furthermore never existed any directive ordering an inquiry into this organization. The Government states that the claims concerning the Free Trade Union of China and the order to investigate this trade union are only rumours.
8. 384. As regards the severity of the sentences handed down by the courts against workers who were members or officials of autonomous workers' federations, the Government states that it is well known that Chinese courts issue their verdicts in strict conformity with the acts committed and in respect of the law. It adds that three other criminals were released for good conduct. These were Messrs. He Zhaohui, Li Jian and Zhang Xudong.
9. 385. In its communication of 31 January 1994, the Government indicates that the decision of the competent national authority to declare Mr. Han Dongfang's passport as null and void and to forbid him from entering the country is fully legitimate and constitutes by principle a measure to protect the security and interests of the Chinese State. It explains that prior to his departure to the United States, Mr. Han Dongfang undertook not to engage in anti-governmental activities abroad. According to the Government, however, once in the United States, he started to collaborate with anti-Chinese organizations which allegedly financed him. Thus, as leader of an illegal organization - "The Free Trade Union of China" - he allegedly published anti-governmental statements, carried out activities aimed at harming the interests of the State and tried to ruin China's international prestige. The Government quotes some of the anti-governmental statements made by Mr. Han Dongfang during interviews, seminars and the 80th Session of the International Labour Conference. The Government further states that Mr. Han Dongfang, having learnt of a false rumour according to which a work stoppage had taken place in a Chinese factory, contacted members of the Free Trade Union of China, provided them with funds and incited them to turn the masses against the Government and to create trouble.
10. 386. According to the Government, Mr. Han Dongfang, in carrying out these activities abroad, contravened the provisions of the Constitution, the law governing state security and the law governing the entry and exit of Chinese nationals. The Government also states that during the enforcement of the above-mentioned decision, the contacts which took place between justice officials and Mr. Han Dongfang were of a normal nature and that there was no intention to injure him. It adds that Mr. Han Dongfang could still be authorized to return to his country provided that he fulfills the conditions fixed on 26 August 1993 by the spokesman of the Ministry of Public Security, namely (i) that he acknowledges that his activities abroad were harmful to the interests and prestige of the country and (ii) that he promises never again to carry out such activities against the Government and Chinese laws, and provided that his actions do not diverge from his words after a verification period.

D. The Committee's conclusions

1. 387. The Committee must first of all regret that the Government has not provided information on the measures taken to amend the many provisions of the Trade Union Act of April 1992 which the Committee considers to be contrary to the principles of the ILO respecting freedom of association (see 286th Report, paras. 709-718).
2. 388. As regards the allegations concerning the request by the Communist Party for an in-depth investigation to be carried out to track down the Free Trade Union of China, the Committee also notes that the Government states in its reply of 6 October 1993 that, contrary to what the complainant organization has said, no trade union organization with the name of "Free Trade Union of China" has ever been set up and no directive has been issued ordering an investigation of this trade union. However, in its communication dated 31 January 1994, the Government seems to admit that the said organization exists given that it states that it is an illegal organization. The Committee notes the contradiction between these two statements.
3. 389. In these circumstances, the Committee is obliged to draw once again the attention of the Government to the principles of freedom of association whereby workers without distinction of any kind are entitled to set up without prior authorization organizations of their own choosing and that trade unions should be able to establish their statutes, organize their activities and programmes of action in full freedom. The Committee therefore urges the Government to take the necessary measures as soon as possible to amend the Trade Union Act of 1992 so that it gives full recognition to these rights and to guarantee the respect of these rights in practice. The Committee requests the Government to keep it informed of any developments in this respect.
4. 390. However, the Committee notes that the Government has provided detailed information on national law and practice concerning the settlement of labour disputes. Although it notes this information, the Committee observes that it concerns essentially individual labour disputes and the manner in which these disputes are settled at the different levels. As regards in particular the settlement of collective labour disputes, the Committee notes that the Provisional Regulations of 1987 were replaced on 1 August 1993 by the Regulations on labour dispute settlement in enterprises in the People's Republic of China which: (i) now apply to all enterprises; (ii) extend arbitration to disputes on the application of state regulations on wages, insurance, welfare, training and the protection of labour; and (iii) establish precise rules on arbitrators and the arbitration system by the courts to improve the sense of responsibility and efficiency of staff in the field.
5. 391. The Committee notes that the 1993 Regulations no longer contain any provisions analogous to those of article 28 of the former Regulations under which a person involved in a labour dispute, and who disrupts the normal process of work or production, shall be sanctioned according to the provisions of the Penal Regulations on public safety of the People's Republic of China. However, the new Regulations are designed in particular to maintain normal production and ordered activities. Sanctions are still applied in the event of interference in the mediation and arbitration procedure by a person involved in a labour dispute as well as obstruction of the public functions of arbitrators (article 37(1)). In these circumstances, it seems clear that the new provisions continue to exclude recourse to strike as a means of defence of occupational interests. The Committee requests the Government to take the necessary measures for workers and organizations to be able to exercise the right to strike when they believe that this is necessary to support their claims.
6. 392. As regards the other allegations pending from the examination of this case in February 1993, the Committee notes that the Government states that Mr. Han Dongfang, a leader of the Autonomous Federation of Workers of Beijing, acted in such a way during hearings on a housing dispute in which he was involved and in particular insulted and injured officials and, according to the Government, hit his head intentionally against a table and injured his face with a chair in an attempt to intimidate the court. It was, therefore, necessary for the people's court to take protective measures. The Committee notes that the Government adds that the allegation that "justice officials hit him with an electric truncheon and beat him unconscious" is totally unfounded.
7. 393. As regards the allegation according to which Mr. Han Dongfang was expelled forcibly from his country, the Committee notes the Government's reply that the decision of the authorities to forbid him from entering the country is fully legitimate and constitutes by principle a measure to protect the security and interests of the Chinese State given that, contrary to what he promised prior to his departure to the United States, Mr. Han Dongfang engaged in anti-governmental activities abroad, and incited members of the Free Trade Union of China - an illegal organization according to the Government - to turn the masses against the Government and to create trouble.
8. 394. The Committee observes that the Government also justifies the said decision because of the contravention by Mr. Han Dongfang of the provisions of the Constitution, the law governing state security and the law governing the entry and exit of Chinese nationals, and that Mr. Han Dongfang could still be authorized to return to his country provided that he acknowledges that his activities abroad were harmful to the interests and prestige of the country and that he promises never again to carry out such activities against the Government and Chinese laws.
9. 395. While noting this information, the Committee deplores the measures taken against Mr. Han Dongfang. It reminds the Government that the exile of trade unionists, which is in violation of human rights, is particularly grave since it deprives the persons concerned of the possibility of working in their country. It is also a violation of freedom of association since it undermines the trade union organizations by depriving them of their leaders. The Committee also recalls that as regards the exile, banishment or placing under house arrest of trade unionists, the Committee, while recognizing that this procedure may be occasioned by a crisis in a country, has drawn attention to the appropriateness of this procedure being accompanied by all the safeguards necessary to ensure that it shall not be utilized for the purpose of impairing the free exercise of trade union rights. (See Digest of decisions and principles of the Freedom of Association Committee, 1985, 3rd edition, paras. 133 and 134.)
10. 396. Regarding Mr. Han Dongfang's activities abroad which, according to the Government, justified his expulsion from the country, the Committee insists on the importance that it attaches to what was pointed out by the International Labour Conference, namely that the right of assembly, freedom of opinion and expression and, in particular, freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media, constitute civil liberties which are essential for the normal exercise of trade union rights (resolution concerning trade union rights and their relation to civil liberties, adopted at the 54th Session (1970) (see Digest, op. cit., para. 74). The Committee further considers that allowing a trade unionist to return to his country on the condition that he no longer exercises the above-mentioned rights is not compatible with freedom of association principles.
11. 397. In the light of these principles, the Committee urges the Government to cancel the expulsion order against Mr. Han Dongfang and allow him to return if he wishes and exercise his trade union activities in full freedom. It requests the Government to keep it informed of measures taken in this respect.
12. 398. As regards the sentencing of Messrs. Tang Yangjuan, Liu Wei and Leng Wambao, on charges of subversion, the Committee notes that the Government states that these persons were not sentenced to an "education through labour" system but to punishment ordered by the people's court of the district of Changchun, in particular for having conspired to create an illegal organization to overthrow the Government and instigated innocent workers to go on strike, to obstruct production and attack government buildings in the city.
13. 399. The Committee is of the view that the observations made by the Government do not establish in a sufficiently exact and detailed manner that the heavy sentences against Messrs. Tang Yangjuan, Liu Wei and Leng Wambao were not due to activities of a trade union kind, but only to acts which went beyond their trade union functions and which were either detrimental to public order or of a political kind. The Committee recalls furthermore that it has already examined in cases concerning China allegations on the sentencing of trade unionists to long periods of imprisonment, very often on grounds of disturbance of public order, charges which in view of their general character might make it possible to repress activities of a trade union nature. (See 279th Report, Case No. 1500, para. 635 and 286th Report, Case No. 1652, para. 725.)
14. 400. The Committee notes that the Government refers in its reply to the release for good conduct of Messrs. He Zhaohui, Li Jian and Zhang Xudong. The Committee welcomes their release but regrets that the Government does not give any information on the review of the situation of many other persons who have been imprisoned and in some cases sentenced, as mentioned by the complainant organization. In these circumstances, recalling the danger to the free exercise of trade union rights of measures of detention and sentencing against workers' representatives for activities related to the defence of the interests of their constituents, the Committee once again requests the Government to take the necessary measures for a re-examination of all the cases mentioned by the complainant organization with a view to the release of these persons (see appendix). It requests the Government to keep it informed of any developments in this respect.

APPENDIX

1. Leaders and militants of the Workers' Autonomous Federations (WAF) still
2. detained
3. ------------------------------------------------------------------
4. Name Complainant's allegations Government's reply
5. ------------------------------------------------------------------
6. WAF of Changsha
7. Hu Nianyou Sentenced to life Sentenced to 10 years'
8. imprisonment imprisonment for
9. looting
10. Liu Wei Sentenced to 2 years of Sentenced to 5 years'
11. reeducation through work, imprisonment for crime
12. now released of subversion against
13. Government
14. Liu Xingqi Detained for 6 months, Sentenced to 5 years'
15. now released imprisonment for theft
16. Yao Guisheng Sentenced to 15 years' Sentenced to 15 years'
17. imprisonment imprisonment for
18. looting
19. Zhang Jingsheng
20. Sentenced to 13 years' Sentenced to 13 years'
21. imprisonment imprisonment for crime
22. of subversion against
23. Government
24. Zhang Xiong Sentenced to 5 years' Sentenced to 5 years'
25. imprisonment imprisonment for
26. looting
27. Zhou Min Sentenced to 6 years' Sentenced to 6 years'
28. imprisonment imprisonment for crime
29. of subversion against
30. Government
31. WAF of Shaoyang
32. Li Wangyang Sentenced to 13 years' Sentenced to 13 years'
33. imprisonment imprisonment for crime
34. of subversion against
35. Government
36. ------------------------------------------------------------------