Case No.2189: Complaints against the Government of China presented by
? the International Confederation of Free Trade Unions (ICFTU) and
? the International Metalworkers? Federation (IMF)
Allegations: The complainants allege the use of
repressive measures, including threats,
intimidation, intervention by security forces,
beatings, detentions, arrests and other
mistreatment meted out to leaders, elected
representatives and members of independent
workers? organizations at the Ferrous Alloy
Factory (FAF) in Liaoning Province and the
Daqing Petroleum Company in Heilongjiang
Province, as well as violent police intervention
in a workers? demonstration at Guangyuan
Textile Factory and sentencing of workers
rights? advocates in Sichuan Province. Finally,
the complainants allege the detention, arrest
and mistreatment in Shanxi Province of an
independent labour activist for trying to set up a
federation for retired workers.
385. The complaint is contained in communications from the International Confederation of Free Trade Unions (ICFTU) dated 27 March, 2 June, 19 August 2002 and 10 January 2003. The International Metalworkers? Federation (IMF) associated itself with the complaint and made additional allegations in a communication dated 3 April 2002.
386. The Government sent a reply to some of the allegations in a communication dated 26 September 2002.
387. China has not ratified either the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining
A. The complainants? allegations
388. In its communication dated 27 March 2002, the International Confederation of Free Trade Unions (ICFTU) lodged a formal complaint against the People?s Republic of China for violations of the principles of freedom of association, on the basis of the facts detailed below and in attached documents, including two letters sent on 15 and 27 March 2002 to President Jiang Zemin.
389. The two letters in question concern repressive measures, including threats, intimidation, intervention by security forces, beatings, detentions, arrests and other mistreatment meted out to leaders, elected representatives and members of independent workers? organizations in Heilongjiang, Liaoning and Sichuan Provinces. All the events described therein occurred in the course of March 2002.
390. Ranging at the very top of the ICFTU?s concerns in this context is the personal situation of Mr. Yao Fuxin, aged 56, leader of the independent workers? organization at the Ferrous Alloy Factory (FAF) in Liaoyang arrested on 17 March 2002. The ICFTU adds that he has been severely mistreated by public security officials after being detained or, worse still, that he may actually have been killed while under official custody.
391. Mr. Yao Fuxin?s arrest came just days after over 10,000 retrenched workers, mostly from FAF, staged a mass demonstration in Liaoyang, demanding that a solution be found to the economic and social problems encountered by the retrenched workers, that legal measures be taken against the corrupt managers of the factory and that the Public Security Service refrain from arresting any of the workers? freely elected representatives.
392. In response, the local authorities reacted with typical intimidation, threats and, eventually,brutal force. On 11 March, the Public Security Bureau (PSB) officials warned several organizers that they were involved in illegal activities. The ICFTU firmly and categorically rejects this charge, since the workers were doing nothing more than peacefully exercising their legitimate rights, guaranteed under ILO Conventions Nos. 87 and 98.
393. On the morning of 12 March, the workers marched on the headquarters of the Liaoyang municipal government, demanding a meeting with local officials, which was finally granted later that day. Mr. Pang Qingxiang, aged 58, and 12 other workers? representatives met with the China Communist Party (CCP) Liaoyang Committee?s Deputy General Secretary, deputy mayors, the General Secretary of the Government and Legislative Committee, the Liaoyang Chief Justice, General Prosecutor and the head of the local PSB. Workers were assured that no arrests would be made.
394. Five days later, the PSB arrested Mr. Yao Fuxin and launched a large security operation to capture a dozen more independent workers? representatives. The next day, 18 March, over 30,000 workers from approximately 20 state-owned enterprises (SOEs) marched on the city government and PSB offices, demanding Mr. Yao Fuxin?s release, but the police denied he had been arrested.
395. However, the authorities? repression of the independent workers? movement did not end with Mr. Yao Fuxin?s arrest. On 18, 19 and 20 March, tens of thousands of Liaoyang workers from different factories gathered in front of the city government offices demanding Mr. Yao Fuxin?s release. On 20 March, as more than 2,000 FAF workers had once again gathered in front of the City Hall demanding his release, another worker representative, named Gu Baoshu, went inside the security bureau headquarters to negotiate but was immediately detained. A worker who saw this informed the workers outside who then broke into the office and rescued Gu.
396. Meanwhile, the city government had deployed a large contingent of armed police in an attempt to stop the workers? protest. Towards the end of the morning, the workers decided to return home but, in order to protect their elected representatives, more than 40 elderly workers surrounded them in a circle. Not far from the City Hall, about 100 police attacked and beat the group of elderly workers. Forcing their way through the protective circle, the police arrested three of the representatives. Scores of elderly workers were injured in the police action, although their exact number, identities and present state of health are still unknown.
397. The three workers? representatives who were arrested during the police action on 20 March (in addition to Yao Fuxin, arrested on 17 March) are: Pang Qingxiang; Xiao Yunliang; and Wang Zhaoming. The next morning, around 1,000 workers from the FAF once again gathered in front of the city government offices. They demanded the release of the four arrested workers? representatives. In the midst of the protest action, Guo Suxiang (56 years old), wife of arrested leader Pang Qingxiang, was also arrested by the police (she was released the following day). Another worker from the Liaoyang Fibre Factory tried to intervene, shouting, ?This arrest is wrong!?. As a result, the police also arrested him and took him away. His name is still unknown but he remains in detention.
398. On 21 March, the city?s Bal Ta District PSB issued a notice of detention to the families of the four workers? representatives for ?illegal demonstration?. They are being held at Tieling City detention centre. Finally, the wife of Yao Fuxin had been visited by the District Director of the PSB at her place of residence, who informed her that her husband was ?in a very serious condition at the hospital after having suffered a heart attack? and that ?the PSB had already sent an amount of 10,000 yuan to the hospital for his medical treatment?.
399. When checked with his relatives, it was determined that Mr. Yao Fuxin was in a perfect state of health at the time of his arrest and that he had never before experienced any heart problems. The ICFTU thus queried whether Yao Fuxin was in a critical state of health as a result of having been beaten, tortured or otherwise mistreated while in the custody of Liaoyang public security officials or, worse still, whether he might actually have been killed by such officials or by personnel under their direct authority. The International Metalworkers? Federation, in its communication dated 3 April 2002, also raised its concern over Yao Fuxin?s health and the fate of the other detained workers? representatives.
400. The complainant also refers to a sit-in demonstration at Petrochina?s Petroleum Administration Bureau (PAB) headquarters in Daqing, on or around 24 March (not included here)
Developments in Liaoyang (Liaoning Province)
404. In respect of the four workers? representatives arrested in Liaoyang in March 2002 (Yao Fuxin, Pang Qingxiang, Xiao Yunliang and Wang Yhaoming), the complainant adds that they were charged on 30 March with organizing ?illegal demonstrations? ? a charge that carries a prison sentence of five years.
405. The first of those arrested, Yao Fuxin was in very serious condition. On 11 April, Yao Fuxin?s wife, Guo Xiujing, was allowed to see her husband, held in Tieling jail (120 km from Liaoyang), for the first time since he was picked up by police. Guo said her husband?s right side was numb, his right hand shook and his right leg was weak. It is believed that he has suffered a stroke caused by the onset of heart disease, itself following his brutal treatment at the hands of the police. (Yao Fuxin had no previous record of heart or any other disease.) Although he had been briefly hospitalized in March, he was returned to the Tieling detention centre where his condition has since deteriorated. In spite of this, Yao Fuxin is being denied access to medical treatment, including a return to hospital or being released on medical parole.
406. The complainant indicates that, since its initial submission of the complaint, much more information has come to light about the events leading to the March 2002 protests. In fact, problems affecting the FAF and other enterprises in and around Liaoyang had already started several years earlier. This information, as well as details of the March 2002 protests which were not available earlier, was attached to the communication.
407. On or around 11 April, relatives of Xiao Yunliang organized for a lawyer to take up his defence. However, police had turned down a request by Xiao?s lawyer to visit him, saying Xiao had refused a lawyer.
408. On 15 April, Liaoyang workers went to the city government complaints bureau to seek the release of the four detainees. In order to avoid further arrests, the workers decided against further street protests, but instead sent several representatives, including Gu Baoshu (who was picked up the next day), to negotiate with the Government. Nevertheless, the workers? caution and attempt to enter into negotiations failed with Gu?s arrest. On 16 April, two plain-clothes police knocked on Gu Baoshu?s door. Then, they opened the door with a key, tied Gu up and beat him. After factory workers learned about this, scores of them rushed to the building where he lived and tussled with the police who arrested him. The police stationed outside pushed the blockading workers aside and took Gu in a police car.
409. The workers submitted on the spot an application for a demonstration to the Chief Secretary of the municipal government, who came to the factory to pacify the workers. However, the Chief Secretary immediately declared that the application should bear the name of the organizers; otherwise it would be invalid. The workers refused to enter any names on the application; moreover, they stated that, were Gu Baoshu not released and were the permission to demonstrate not approved, they would collectively visit Beijing to petition or they would block the railway. Under such pressure from the workers, Gu Baoshu was released the same night. He had been cruelly beaten by the officers during detention. Gu demanded that the PSB pay his medical costs and investigate who was responsible for the beating. The authorities replied with further threats of detention.
410. On 5 May, around midnight, workers secretly posted notices on walls of the labour housing area, calling on workers to collectively petition the authorities on 7 and 8 May to release the detainees. The following morning, the notices were cleared by police. For two consecutive days thereafter, 400-500 workers who had heard about the notices posted on the walls earlier, gathered in front of the municipal government building again and requested the release of all arrested workers? representatives. Guo Xiujing and another three workers? representatives also submitted an application for demonstration, signed with 20 workers? names. The PSB rejected the application without giving any reason.
411. On 9 May, hundreds of workers once again gathered in front of the municipal government building and held up a banner saying ?strongly demand the government release the arrested workers? representatives?. Officials charged out from the government building and tried to seize the banner, but failed. The following day, workers demanded a dialogue with the Mayor. Two officials of the municipal government?s complaints bureau appeared and said that, if the workers appointed representatives, they would arrange for them to meet the Mayor. But the workers refused because they were worried that the municipal government once again only wanted to pinpoint the workers? leaders to arrest them. Finally, the head of the complaints bureau came out and accepted a petition letter from the workers and
promised to forward it to the Mayor at once. The petition letter sent to the Mayor contained five demands:
? that the government release the arrested workers? representatives; failing that, that court action begin as soon as possible, as the workers? representatives must not be kept locked up indefinitely;
? that the city government make public the report on forced bankruptcies and respond to the workers? reasonable demands within a time limit;
? an increase in the clampdown on corrupt officials and giving the FAF workers a clear statement about their claims in the near future;
? that the government lawfully punish those police officers who abused their legal positions and assaulted Gu Baoshu in a most cold-blooded way;
? that, for humanitarian reasons, the government should allow the FAF workers in separate groups and occasions to visit their jailed representatives in the Tieling (Iron
Peak) detention centre.
The petition letter also expressed that the FAF workers would petition Beijing with collective demonstrations unless the city government speedily satisfy these demands.
412. On 15 May, several hundred workers from the FAF again assembled in front of the government buildings to raise banners and peacefully petition the Government for the release of detainees. At just after 10 a.m., more than ten plain-clothes police officers charged out of the government building?s courtyard, attacked the workers with punches and kicks and seized their banners. Clashes followed as the workers protected the banners. During the clashes, the son of a retired FAF worker, whose mother had been beaten during the police assault, demanded to know why they had attacked his mother. As a result, he was severely beaten by the police and then taken away. In the end, the city complaints bureau arranged for the release of the woman?s son.
413. In a separate incident, Wang Dawei, another key person in the FAF workers? struggle, went to Beijing to file complaints at numerous central government departments but was completely ignored. After he called Guo Xiujing?s family once, early in his journey, to tell them about his progress with the complaints, he disappeared. He remains unaccounted for and the complainant fears that he has also been arrested.
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427. Finally, in its communication dated 10 January 2003, the ICFTU expresses its deep concern over the impending trial of Yao Fuxin and Pang Qingxiang under the recently altered charge of subversion, a charge which may carry a punishment of life imprisonment or even death.
B. The Government?s reply
428. In its communication dated 26 September 2002, the Government provides the following information.
429. The Government states that, in the past few months, it has made an extensive investigation of related individuals and incidents, including visits to such relevant departments as the Ministries of Public Security, State Security and Judiciary Affairs, the ACFTU and local governments.
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Ferroalloy Group Ltd., Liaoyang City, Liaoning Province
431. The Liaoyang City Ferroalloy Group Ltd. in Liaoning Province, a municipalized enterprise, had suffered successive years of loss in production management ever since 1996. In October 2001, a proposal for bankruptcy was accepted after consideration by the Congress of Staff Representatives in the Liaoyang City Ferroalloy Group. In November, the bankruptcy process was formally put into motion.
432. From 11 to 21 March 2002, more than 500 persons from the Liaoyang City Ferroalloy Group, including staff members employed at the time and retirees, made a collective appeal to the municipal government, demanding that managers with corrupt behaviour in the enterprise be punished, that the standard for one-time settlement payments and financial compensation be improved, and that outstanding payments for wages and social security insurance be settled. In response to the workers? demands, an investigation group was immediately organized by the municipal government, and meticulous in-depth investigations were made of the issues put forward by the appellants. The following measures have been taken:
(1) Punishment of corrupt individuals in accordance with the law. Judicial bodies investigated illegal and criminal acts committed by corrupt individuals in the enterprise, and dealt with them in accordance with the law: one person received a sentence; legal proceedings are being taken against one person; one person is being held in custody as a criminal; three persons are on bail awaiting trial; and records have been established for the investigation of seven persons.
(2) Multilateral mobilization of funds to ensure basic living necessities for the workers.
The enterprise made an initial allocation of nearly 30 million Chinese yuan for settlement payments to the workers, and prepares to make retroactive payment of the workers? wages and social security insurance by means of converting bankrupt assets into cash. Key points of the settlement scheme include: a worker whose age is within five years of the legal age for retirement will be able to go through procedures for early retirement, his or her pension being paid monthly by social security insurance agencies; workers who were employed before the system of labour contracts was introduced will receive a one-time settlement payment equivalent to three times the average salary paid last year to workers of enterprises in the city concerned; workers who entered into employment after the system of labour contracts was introduced will receive a one-time financial compensation.
(3) Assisting in the re-employment of laid off workers. At the end of March and then at the beginning of April 2002, municipal departments of labour employment held two large-scale consultations on employment, the topic being the organization of employment assistance fairs for workers laid off by the Liaoyang City Ferroalloy Group. As a result, preliminary employment agreements were reached for a total of more than 1,000 person-times, thus solving the employment problem of some of the
people concerned.
433. At this time, a worker at the Liaoyang City Rolling Mill, Yao Fuxin, and three workers at the Liaoyang City FAF, Pang Qingxiang, Xiao Yunliang and Wang Zhaoming, jointly carried out planned activities of terrorism and sabotage, severely threatening public security, disrupting public order and damaging public property. As they had broken the law public security authorities summoned them for trial in accordance with the law, and applied forcible measures. In view of the fact that their behaviour violated the relevant provisions in the Criminal Law of the People?s Republic of China and the Law of the People?s Republic of China Governing Meetings, Parades and Demonstrations, on 27 March 2002 after approval by the Liaoyang City People?s Procurator, the public security authorities of Liaoyang City arrested Yao Fuxin and the other aforementioned persons in accordance with the law on charges of holding illegal meetings, parades and demonstrations. At present, records are being established to hear the case.
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439. The Government adds more generally that China is in the process of transition from a planned economy to a socialist market economy. In order to improve management and competitiveness, it is inevitable that state-owned enterprises would choose to conduct economic restructuring and lay off part of their workforce. There is no doubt that the reforms are moving in the right direction, and China will unswervingly move along the route of restructuring and opening to the outside world. As China is the largest developing country in the world with an enormous population, it would be hard to avoid the emergence of any conflicts in the process of economic restructuring. China has the determination and the capability to solve these problems through intensive reforms and to achieve simultaneous development in the economic and social fields.
440. The Chinese Government pays great attention to protecting the basic rights of laid-off workers, the unemployed, the retirees and other low-income social populations, and to properly arranging for their lives. Since 1998, the Chinese Government has creatively adopted a ?triple security? system, which includes a scheme to ensure basic living necessities for workers laid off by state-owned enterprises, an unemployment insurance scheme and a scheme to ensure minimum living standards for urban inhabitants. Meanwhile, measures have been taken to ensure the timely and full payment of basic living allowances to workers laid off by state-owned enterprises and pensions to retirees.
441. China has made great efforts to reform its social security insurance system. Through more than a decade of efforts, it has established a preliminary social security insurance system independent of the enterprises. Particularly in recent years, systems for pension, health insurance, unemployment insurance, insurance against work-related injuries and maternity insurance have been improved, the collection of premiums has been intensified, and social security coverage has been further extended. Through its efforts to establish a social security system and to promote employment, China has provided a basic social security net for persons from every walk of life, effectively protecting the right of citizens to life and development (which is the basis of human rights) and the right of citizens to employment (which is the basis of decent labour). The results achieved and the experience created by China are important contributions to the work on international labour affairs, and have gained wide recognition among international circles.
442. The Government further asserts that it has always protected and paid attention to the democratic rights of all citizens, including the right to freedom of association. There are explicit provisions to this effect in the Constitution, the Labour Law and the Trade Union Law. As a responsible member of the International Labour Organization, China recognizes and respects all the principles stipulated in the ILO Constitution, including the principle of freedom of association, and has made unremitting efforts to achieve these principles.
443. It must be pointed out, however, that the incidents which occurred in 2002 in certain places in China as mentioned in Case No. 2189 are simply labour disputes resulting from the adjustment of interests during the reduction of the enterprise workforce, and are in no way related to the freedom of association. In Liaoyang City, Yao Fuxin and his three accomplices took advantage of certain workers who were making an appeal to the authorities, and repeatedly planned illegal activities to disturb public order and endanger public security. Such behaviour has nothing to do with freedom of association. No responsible government of a state governed by law would have sat by and watched.
Allegations from the ICFTU are at variance with the facts, and constitute a misunderstanding and misinterpretation of the facts.
444. The Government concludes that the facts concerned in this case are already fairly clear, and that there should be no need for discussion by the Committee on Freedom of Association. Nevertheless, in the spirit of promoting cooperation and enhancing understanding, the Government expresses its willingness to maintain dialogue with the Committee.
C. The Committee?s conclusions
445. The Committee notes that the allegations in this case refer to the use of repressive measures, including threats, intimidation, intervention by security forces, beatings, detentions, arrests and other mistreatment meted out to leaders, elected representatives and members of independent workers? organizations at the Ferrous Alloy Factory (FAF) in Liaoning Province and the Daqing Petroleum Company in Heilongjiang Province, as well as violent police intervention in a workers? demonstration at Guangyuan Textile Factory and the sentencing of workers rights? advocates in Sichuan Province. Finally, the complainants allege the detention, arrest and mistreatment in Shanxi Province of an independent labour activist for trying to set up a federation for retired workers.
Ferrous Alloy Factory (FAF) in Liaoyang (Liaoning Province)
446. The Committee notes with concern the specific allegations concerning the arrest and detention of Yao Fuxin, Pang Qingxiang, Xiao Yunliang, Wang Zhaoming, leaders and representatives of the independent workers? organization at FAF, on charges of illegal demonstration, following a mass demonstration in March 2002 in support of over 10,000 retrenched workers. The arrests on 20 March of the latter three representatives were reportedly accompanied by violent and forceful police intervention resulting in numerous injuries to many of the demonstrators. The complainant further alleges that Gu Baoshu, worker representative, and Guo Suxiang, wife of arrested leader Pang Qingxiang, were also briefly arrested and detained and an unidentified protesting worker from the Liaoyang Fibre Factory remains in detention. Besides the allegations of violent police intervention during the demonstration on 20 March aimed at the release of Yao Fuxin, further allegations were made of police violence and beatings in respect of subsequent demonstrations on 15 May.
447. The Committee also notes with deep concern the allegations that Yao Fuxin?s health is in a very serious condition and the suspicions of torture or other mistreatment surrounding his detention. In particular, the complainant alleges that Yao Fuxin is suffering from a stroke caused by the onset of heart disease, itself following his brutal treatment at the hands of the police. After a brief hospitalization in March, he was returned to the Tieling detention centre where, despite the continuing deterioration of his health, he has allegedly been denied access to medical treatment, including a return to hospital or release on medical parole.
448. Allegations of mistreatment and beatings were also made by the complainant in respect of the brief detention of Gu Baoshu. The complainant further alleges that the police turned down a request by Xiao Yunliang?s lawyer to visit him, stating that Xiao had refused a lawyer. Finally, the Committee notes the allegation that Wang Dawei disappeared following his interventions in respect of the FAF struggle.
449. As concerns the demonstrations at the Ferroalloy Group, brought about by the
consequences of the factory?s bankruptcy, the Government indicates that an investigation group was immediately organized to look into the claims put forward by the workers concerning corruption at the enterprise and financial compensation for wages and social security. It further notes the Government?s report of measures taken to punish corrupt individuals, mobilize funds to ensure workers? basic living needs and to assist in the reemployment of the laid-off workers.
450. More generally, the Committee notes the various explanations given by the Government concerning the consequences of the process of transition from a planned economy to a socialist market economy and the multiple steps taken by the Government to solve the resulting problems and to protect workers? basic rights. While stating that it has always protected and paid attention to the democratic rights of all citizens, including the right to freedom of association, the Government adds that the incidents that are the subject of this complaint are simply labour disputes resulting from the adjustment of interests during the reduction of the enterprise workforce and are in no way related to freedom of association.
451. The Government links this general context to the particular case of the FAF workers, stating that Yao Fuxin, Pang Qingxiang, Xiao Yunliang and Wang Zhaoming took advantage of certain workers who were making an appeal to the authorities and repeatedly planned activities of terrorism and sabotage, severely threatening public security, disrupting public order and damaging public property. The Government states that they were summoned for trial in accordance with the law on charges of holding illegal meetings, parades and demonstrations, and that forcible measures were applied by the public security authorities. The Government concludes that the ICFTU allegations are at variance with the facts and constitute a misinterpretation of them.
452. While taking due note of the explanations given by the Government concerning the measures taken to respond to workers? demands and to ensure basic living needs, the Committee notes with regret that very little information has been provided in respect of the only issue before it for which it has any competence, that is the question of ensuring respect for the basic principles of freedom of association. This sparseness of information is all the more regretted in light of the detailed information provided by the complainants concerning the role and activities of the four FAF workers? representatives. While noting the Government?s general indication that these workers? representatives allegedly planned illegal activities to disturb public order and endanger public security, the Committee observes that the Government provides no detail as to the specific illicit nature of their activities yet admits that the entire context was one of a labour dispute. In the light of the information provided by the Government, the Committee requests the Government to drop the charges relating to terrorism, sabotage and subversion.
453. In these circumstances, the Committee must recall that the detention of trade union leaders or members for reasons connected with their activities in defence of the interests of workers constitutes a serious interference with civil liberties in general and with trade union rights in particular [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 71]. Further, noting that the Government has not supplied any information in reply to the specific allegations of violent police intervention in the workers? demonstrations, other than to state that the public security officials had applied ?forcible measures? against the alleged lawbreakers, the Committee recalls that workers should enjoy the right to peaceful demonstration to defend their occupational interests. The authorities should resort to the use of force only in situations where law and order is seriously threatened. The intervention of the forces of law and order should be in due proportion to the danger to law and order that the authorities are attempting to control and governments should take measures to ensure that the competent authorities receive adequate instructions so as to eliminate the danger entail ed by the use of excessive violence when controlling demonstrations which might result in a disturbance of the peace [see Digest, op. cit., para. 132].
454. In the light of the above, the Committee requests the Government to institute an impartial and independent investigation into the allegations of violent police intervention in respect of the demonstrations in relation to the workers? struggle at FAF in Liaoyang on 20 March and 15 May 2002. The Government is asked to provide detailed information to the Committee on the outcome of this investigation and to indicate the measures taken to compensate any injured workers. The Committee further requests the Government to institute an independent investigation into the allegations concerning the serious condition of Yao Fuxin?s health and the suspicions of torture or mistreatment surrounding his detention. The Government is asked to inform the Committee of the outcome of this investigation and of any measures taken in the event that it is found that Yao Fuxin has been mistreated while in detention, including the measures taken to ensure that he receives any necessary medical treatment.
455. As for the brief detentions of Gu Baoshu, worker representative, and Guo Suxiang, wife of arrested leader Pang Qingxiang, the Committee recalls that the arrest, even if only briefly, of trade union leaders and trade unionists for exercising legitimate trade union activities constitutes a violation of the principles of freedom of association [see Digest, op. cit., para. 70]. Further noting the allegations that Gu Baoshu was beaten during his brief detention, the Committee requests the Government to institute an independent investigation into these allegations and to inform the Committee of the outcome and of any measures taken in the event that it is found that Gu Baoshu was mistreated while in detention.
Finally, it requests the Government to provide any information it may have in respect of the whereabouts of Wang Dawei.
456. As for the arrest and detention of Yao Fuxin, Pang Qingxiang, Xiao Yunliang and Wang Zhaoming, in light of the insufficiency of the Government?s reply as to the precise nature of the activities resulting in the disturbance of public order and endangered public security and the fact that the initial charge of illegal demonstration was converted to ?subversion? nine months after the incident and two weeks before trial (a crime which reportedly carries a penalty of up to life imprisonment or even the death penalty), the Committee requests the Government to provide specific and detailed information on the charges brought against these four workers? representatives. In the meantime, the Committee recalls that it has considered the sentencing of trade unionists to long periods of imprisonment, very often on the grounds of ?disturbance of public order?, in view of the general nature of the charges, might make it possible to repress activities of a trade union nature [see Digest, op. cit., para. 64]. With this in mind, the Committee requests the Government to take the necessary steps for the immediate release of any of the FAF workers? representatives still detained and to ensure that the charges brought against them are dropped. It requests the Government to keep it informed of the measures taken in this regard.
457. As concerns the allegations concerning Xiao Yunliang?s lawyer?s lack of access to his client, the Committee recalls that detained trade unionists, like anyone else, should benefit from normal judicial proceedings and have the right to due process, in particular, the right to be informed of the charges brought against them, the right to have adequate time and facilities for the preparation of their defence and to communicate freely with counsel of their own choosing, and the right to a prompt trial by an impartial and independent judicial authority [see Digest, op. cit., para. 102]. The Committee requests the Government to ensure that due process of the law is guaranteed in respect of all the workers? representatives named in this complaint.
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465. On a more general note, and giving full consideration to the context of transition described by the Government and its determination to achieve simultaneous development in economic and social fields, the Committee considers that it is precisely within this context that the only durable solution to the apparently increasing social conflict experienced in the country is through full respect for the right of workers to establish organizations of their own choosing by ensuring, in particular, the effective possibility of forming, in a climate of full security, organizations independent both of those which exist already and of any political party [see Digest, op. cit., para. 273]. While noting the Government?s statement that freedom of association is guaranteed through the explicit provisions in itsConstitution, the Labour Law and the Trade Union Law, the Committee must refer to its earlier conclusions in respect of certain significant legislative obstacles to the full guarantee of freedom of association.
In particular, in its examination of Case No. 2031 [321st Report, para. 165], the Committee recalled that, during its examination of two previous complaints presented against the Government of China [see 286th Report (Case No. 1652) and 310th Report (Case No. 1930)], it had concluded that the obligations set forth in sections 5, 8 and 9 of the Trade Union Act prevented the establishment of trade union organizations that were independent of the public authorities and of the ruling party, whose mission should be to defend and promote the interests of their constituents and not to reinforce the country?s political and economic system. The Committee had further noted that sections 4, 11 and 13 resulted in the imposition of a trade union monopoly and that the requirement that grass-roots organizations be controlled by higher level trade unions and that their constitutions should be established by the National Congress of Trade Union Members, constituted major constraints on the right of unions to establish their own constitutions, organize their activities and formulate programmes. Consequently, the Committee had concluded that many provisions of the Trade Union Act were contrary to the fundamental principles of freedom of association and had requested the Government to take the necessary steps to ensure that the provisions in question were modified.
466. In conclusion, the Committee strongly believes that the development of free and independent organizations and negotiation with all those involved in social dialogue is indispensable to enable a government to confront its social and economic problems and resolve them in the best interests of the workers and the nation. Indeed, a balanced economic and social development requires the existence of strong and independent organizations which can participate in the process of development [see Digest, op. cit., paras. 24 and 25]. In this context, the Committee requests the Government once again to examine the possibility of a direct contacts mission being undertaken to the country in order to promote the full implementation of freedom of association. The Committee expresses the hope that the Government will respond positively to this suggestion which has been made in a constructive spirit with a view to assisting the Government to find appropriate solutions to the existing problems.
The Committee?s recommendations
467. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
(a) The Committee requests the Government to institute an impartial and independent investigation into the allegations of violent police intervention in respect of the demonstrations in relation to the workers? struggle at the Ferrous Alloy Factory in Liaoyang on 20 March and 15 May 2002. The Government is asked to provide detailed information to the Committee on the outcome of this investigation and to indicate the measures taken to compensate any injured workers.
(b) The Committee further requests the Government to institute an independent investigation into the allegations concerning the serious condition of Yao Fuxin?s health and the torture or mistreatment surrounding his detention. The Government is asked to inform the Committee of the outcome of this investigation and of any measures taken in the event that it is found that Yao Fuxin has been mistreated while in detention, including the measures taken to ensure that he receives any necessary medical treatment.
(c) The Committee requests the Government to institute an independent investigation into the allegations that Gu Baoshu was beaten during his brief detention and to inform the Committee of the outcome of this investigation and of any measures taken in the event that it is found that he was mistreated. It also requests the Government to provide any information it may have in respect of the whereabouts of Wang Dawei.
(d) Given the Government?s indication that the events occurring at the Ferrous Alloy Factory fell within the context of a labour dispute, the Committee requests the Government to drop all charges relating to terrorism, sabotage and subversion.
(e) The Committee also requests the Government to provide specific and detailed information on the charges brought against Yao Fuxin, Pang Qingxiang, Xiao Yunliang and Wang Zhaoming. In the meantime, it requests the Government to take the necessary steps for the immediate release of any of the FAF workers? representatives still detained and to ensure that the charges brought against them are dropped. The Government is requested to keep the Committee informed in this regard.
(f) The Committee requests the Government to ensure that due process of the law is guaranteed in respect of all the workers? representatives named in this complaint.
(h) In light of the numerous allegations in this complaint concerning the excessive use of force by the police in various disputes taking place in different parts of the country, the Committee requests the Government to consider preparing relevant instructions for the forces of law and order aimed at eliminating the danger of resorting to the use of excessive violence when controlling demonstrations.
(j) The Committee requests the Government once again to examine the possibility of a direct contacts mission being undertaken to the country in order to promote the full implementation of freedom of association. The Committee expresses the hope that the Government will respond positively to this suggestion which has been made in a constructive spirit with a view to assisting the Government to find appropriate solutions to the existing problems.
For the full text please go to the ILO Website
? the International Confederation of Free Trade Unions (ICFTU) and
? the International Metalworkers? Federation (IMF)
Allegations: The complainants allege the use of
repressive measures, including threats,
intimidation, intervention by security forces,
beatings, detentions, arrests and other
mistreatment meted out to leaders, elected
representatives and members of independent
workers? organizations at the Ferrous Alloy
Factory (FAF) in Liaoning Province and the
Daqing Petroleum Company in Heilongjiang
Province, as well as violent police intervention
in a workers? demonstration at Guangyuan
Textile Factory and sentencing of workers
rights? advocates in Sichuan Province. Finally,
the complainants allege the detention, arrest
and mistreatment in Shanxi Province of an
independent labour activist for trying to set up a
federation for retired workers.
385. The complaint is contained in communications from the International Confederation of Free Trade Unions (ICFTU) dated 27 March, 2 June, 19 August 2002 and 10 January 2003. The International Metalworkers? Federation (IMF) associated itself with the complaint and made additional allegations in a communication dated 3 April 2002.
386. The Government sent a reply to some of the allegations in a communication dated 26 September 2002.
387. China has not ratified either the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining
A. The complainants? allegations
388. In its communication dated 27 March 2002, the International Confederation of Free Trade Unions (ICFTU) lodged a formal complaint against the People?s Republic of China for violations of the principles of freedom of association, on the basis of the facts detailed below and in attached documents, including two letters sent on 15 and 27 March 2002 to President Jiang Zemin.
389. The two letters in question concern repressive measures, including threats, intimidation, intervention by security forces, beatings, detentions, arrests and other mistreatment meted out to leaders, elected representatives and members of independent workers? organizations in Heilongjiang, Liaoning and Sichuan Provinces. All the events described therein occurred in the course of March 2002.
390. Ranging at the very top of the ICFTU?s concerns in this context is the personal situation of Mr. Yao Fuxin, aged 56, leader of the independent workers? organization at the Ferrous Alloy Factory (FAF) in Liaoyang arrested on 17 March 2002. The ICFTU adds that he has been severely mistreated by public security officials after being detained or, worse still, that he may actually have been killed while under official custody.
391. Mr. Yao Fuxin?s arrest came just days after over 10,000 retrenched workers, mostly from FAF, staged a mass demonstration in Liaoyang, demanding that a solution be found to the economic and social problems encountered by the retrenched workers, that legal measures be taken against the corrupt managers of the factory and that the Public Security Service refrain from arresting any of the workers? freely elected representatives.
392. In response, the local authorities reacted with typical intimidation, threats and, eventually,brutal force. On 11 March, the Public Security Bureau (PSB) officials warned several organizers that they were involved in illegal activities. The ICFTU firmly and categorically rejects this charge, since the workers were doing nothing more than peacefully exercising their legitimate rights, guaranteed under ILO Conventions Nos. 87 and 98.
393. On the morning of 12 March, the workers marched on the headquarters of the Liaoyang municipal government, demanding a meeting with local officials, which was finally granted later that day. Mr. Pang Qingxiang, aged 58, and 12 other workers? representatives met with the China Communist Party (CCP) Liaoyang Committee?s Deputy General Secretary, deputy mayors, the General Secretary of the Government and Legislative Committee, the Liaoyang Chief Justice, General Prosecutor and the head of the local PSB. Workers were assured that no arrests would be made.
394. Five days later, the PSB arrested Mr. Yao Fuxin and launched a large security operation to capture a dozen more independent workers? representatives. The next day, 18 March, over 30,000 workers from approximately 20 state-owned enterprises (SOEs) marched on the city government and PSB offices, demanding Mr. Yao Fuxin?s release, but the police denied he had been arrested.
395. However, the authorities? repression of the independent workers? movement did not end with Mr. Yao Fuxin?s arrest. On 18, 19 and 20 March, tens of thousands of Liaoyang workers from different factories gathered in front of the city government offices demanding Mr. Yao Fuxin?s release. On 20 March, as more than 2,000 FAF workers had once again gathered in front of the City Hall demanding his release, another worker representative, named Gu Baoshu, went inside the security bureau headquarters to negotiate but was immediately detained. A worker who saw this informed the workers outside who then broke into the office and rescued Gu.
396. Meanwhile, the city government had deployed a large contingent of armed police in an attempt to stop the workers? protest. Towards the end of the morning, the workers decided to return home but, in order to protect their elected representatives, more than 40 elderly workers surrounded them in a circle. Not far from the City Hall, about 100 police attacked and beat the group of elderly workers. Forcing their way through the protective circle, the police arrested three of the representatives. Scores of elderly workers were injured in the police action, although their exact number, identities and present state of health are still unknown.
397. The three workers? representatives who were arrested during the police action on 20 March (in addition to Yao Fuxin, arrested on 17 March) are: Pang Qingxiang; Xiao Yunliang; and Wang Zhaoming. The next morning, around 1,000 workers from the FAF once again gathered in front of the city government offices. They demanded the release of the four arrested workers? representatives. In the midst of the protest action, Guo Suxiang (56 years old), wife of arrested leader Pang Qingxiang, was also arrested by the police (she was released the following day). Another worker from the Liaoyang Fibre Factory tried to intervene, shouting, ?This arrest is wrong!?. As a result, the police also arrested him and took him away. His name is still unknown but he remains in detention.
398. On 21 March, the city?s Bal Ta District PSB issued a notice of detention to the families of the four workers? representatives for ?illegal demonstration?. They are being held at Tieling City detention centre. Finally, the wife of Yao Fuxin had been visited by the District Director of the PSB at her place of residence, who informed her that her husband was ?in a very serious condition at the hospital after having suffered a heart attack? and that ?the PSB had already sent an amount of 10,000 yuan to the hospital for his medical treatment?.
399. When checked with his relatives, it was determined that Mr. Yao Fuxin was in a perfect state of health at the time of his arrest and that he had never before experienced any heart problems. The ICFTU thus queried whether Yao Fuxin was in a critical state of health as a result of having been beaten, tortured or otherwise mistreated while in the custody of Liaoyang public security officials or, worse still, whether he might actually have been killed by such officials or by personnel under their direct authority. The International Metalworkers? Federation, in its communication dated 3 April 2002, also raised its concern over Yao Fuxin?s health and the fate of the other detained workers? representatives.
400. The complainant also refers to a sit-in demonstration at Petrochina?s Petroleum Administration Bureau (PAB) headquarters in Daqing, on or around 24 March (not included here)
Developments in Liaoyang (Liaoning Province)
404. In respect of the four workers? representatives arrested in Liaoyang in March 2002 (Yao Fuxin, Pang Qingxiang, Xiao Yunliang and Wang Yhaoming), the complainant adds that they were charged on 30 March with organizing ?illegal demonstrations? ? a charge that carries a prison sentence of five years.
405. The first of those arrested, Yao Fuxin was in very serious condition. On 11 April, Yao Fuxin?s wife, Guo Xiujing, was allowed to see her husband, held in Tieling jail (120 km from Liaoyang), for the first time since he was picked up by police. Guo said her husband?s right side was numb, his right hand shook and his right leg was weak. It is believed that he has suffered a stroke caused by the onset of heart disease, itself following his brutal treatment at the hands of the police. (Yao Fuxin had no previous record of heart or any other disease.) Although he had been briefly hospitalized in March, he was returned to the Tieling detention centre where his condition has since deteriorated. In spite of this, Yao Fuxin is being denied access to medical treatment, including a return to hospital or being released on medical parole.
406. The complainant indicates that, since its initial submission of the complaint, much more information has come to light about the events leading to the March 2002 protests. In fact, problems affecting the FAF and other enterprises in and around Liaoyang had already started several years earlier. This information, as well as details of the March 2002 protests which were not available earlier, was attached to the communication.
407. On or around 11 April, relatives of Xiao Yunliang organized for a lawyer to take up his defence. However, police had turned down a request by Xiao?s lawyer to visit him, saying Xiao had refused a lawyer.
408. On 15 April, Liaoyang workers went to the city government complaints bureau to seek the release of the four detainees. In order to avoid further arrests, the workers decided against further street protests, but instead sent several representatives, including Gu Baoshu (who was picked up the next day), to negotiate with the Government. Nevertheless, the workers? caution and attempt to enter into negotiations failed with Gu?s arrest. On 16 April, two plain-clothes police knocked on Gu Baoshu?s door. Then, they opened the door with a key, tied Gu up and beat him. After factory workers learned about this, scores of them rushed to the building where he lived and tussled with the police who arrested him. The police stationed outside pushed the blockading workers aside and took Gu in a police car.
409. The workers submitted on the spot an application for a demonstration to the Chief Secretary of the municipal government, who came to the factory to pacify the workers. However, the Chief Secretary immediately declared that the application should bear the name of the organizers; otherwise it would be invalid. The workers refused to enter any names on the application; moreover, they stated that, were Gu Baoshu not released and were the permission to demonstrate not approved, they would collectively visit Beijing to petition or they would block the railway. Under such pressure from the workers, Gu Baoshu was released the same night. He had been cruelly beaten by the officers during detention. Gu demanded that the PSB pay his medical costs and investigate who was responsible for the beating. The authorities replied with further threats of detention.
410. On 5 May, around midnight, workers secretly posted notices on walls of the labour housing area, calling on workers to collectively petition the authorities on 7 and 8 May to release the detainees. The following morning, the notices were cleared by police. For two consecutive days thereafter, 400-500 workers who had heard about the notices posted on the walls earlier, gathered in front of the municipal government building again and requested the release of all arrested workers? representatives. Guo Xiujing and another three workers? representatives also submitted an application for demonstration, signed with 20 workers? names. The PSB rejected the application without giving any reason.
411. On 9 May, hundreds of workers once again gathered in front of the municipal government building and held up a banner saying ?strongly demand the government release the arrested workers? representatives?. Officials charged out from the government building and tried to seize the banner, but failed. The following day, workers demanded a dialogue with the Mayor. Two officials of the municipal government?s complaints bureau appeared and said that, if the workers appointed representatives, they would arrange for them to meet the Mayor. But the workers refused because they were worried that the municipal government once again only wanted to pinpoint the workers? leaders to arrest them. Finally, the head of the complaints bureau came out and accepted a petition letter from the workers and
promised to forward it to the Mayor at once. The petition letter sent to the Mayor contained five demands:
? that the government release the arrested workers? representatives; failing that, that court action begin as soon as possible, as the workers? representatives must not be kept locked up indefinitely;
? that the city government make public the report on forced bankruptcies and respond to the workers? reasonable demands within a time limit;
? an increase in the clampdown on corrupt officials and giving the FAF workers a clear statement about their claims in the near future;
? that the government lawfully punish those police officers who abused their legal positions and assaulted Gu Baoshu in a most cold-blooded way;
? that, for humanitarian reasons, the government should allow the FAF workers in separate groups and occasions to visit their jailed representatives in the Tieling (Iron
Peak) detention centre.
The petition letter also expressed that the FAF workers would petition Beijing with collective demonstrations unless the city government speedily satisfy these demands.
412. On 15 May, several hundred workers from the FAF again assembled in front of the government buildings to raise banners and peacefully petition the Government for the release of detainees. At just after 10 a.m., more than ten plain-clothes police officers charged out of the government building?s courtyard, attacked the workers with punches and kicks and seized their banners. Clashes followed as the workers protected the banners. During the clashes, the son of a retired FAF worker, whose mother had been beaten during the police assault, demanded to know why they had attacked his mother. As a result, he was severely beaten by the police and then taken away. In the end, the city complaints bureau arranged for the release of the woman?s son.
413. In a separate incident, Wang Dawei, another key person in the FAF workers? struggle, went to Beijing to file complaints at numerous central government departments but was completely ignored. After he called Guo Xiujing?s family once, early in his journey, to tell them about his progress with the complaints, he disappeared. He remains unaccounted for and the complainant fears that he has also been arrested.
?.
427. Finally, in its communication dated 10 January 2003, the ICFTU expresses its deep concern over the impending trial of Yao Fuxin and Pang Qingxiang under the recently altered charge of subversion, a charge which may carry a punishment of life imprisonment or even death.
B. The Government?s reply
428. In its communication dated 26 September 2002, the Government provides the following information.
429. The Government states that, in the past few months, it has made an extensive investigation of related individuals and incidents, including visits to such relevant departments as the Ministries of Public Security, State Security and Judiciary Affairs, the ACFTU and local governments.
?
Ferroalloy Group Ltd., Liaoyang City, Liaoning Province
431. The Liaoyang City Ferroalloy Group Ltd. in Liaoning Province, a municipalized enterprise, had suffered successive years of loss in production management ever since 1996. In October 2001, a proposal for bankruptcy was accepted after consideration by the Congress of Staff Representatives in the Liaoyang City Ferroalloy Group. In November, the bankruptcy process was formally put into motion.
432. From 11 to 21 March 2002, more than 500 persons from the Liaoyang City Ferroalloy Group, including staff members employed at the time and retirees, made a collective appeal to the municipal government, demanding that managers with corrupt behaviour in the enterprise be punished, that the standard for one-time settlement payments and financial compensation be improved, and that outstanding payments for wages and social security insurance be settled. In response to the workers? demands, an investigation group was immediately organized by the municipal government, and meticulous in-depth investigations were made of the issues put forward by the appellants. The following measures have been taken:
(1) Punishment of corrupt individuals in accordance with the law. Judicial bodies investigated illegal and criminal acts committed by corrupt individuals in the enterprise, and dealt with them in accordance with the law: one person received a sentence; legal proceedings are being taken against one person; one person is being held in custody as a criminal; three persons are on bail awaiting trial; and records have been established for the investigation of seven persons.
(2) Multilateral mobilization of funds to ensure basic living necessities for the workers.
The enterprise made an initial allocation of nearly 30 million Chinese yuan for settlement payments to the workers, and prepares to make retroactive payment of the workers? wages and social security insurance by means of converting bankrupt assets into cash. Key points of the settlement scheme include: a worker whose age is within five years of the legal age for retirement will be able to go through procedures for early retirement, his or her pension being paid monthly by social security insurance agencies; workers who were employed before the system of labour contracts was introduced will receive a one-time settlement payment equivalent to three times the average salary paid last year to workers of enterprises in the city concerned; workers who entered into employment after the system of labour contracts was introduced will receive a one-time financial compensation.
(3) Assisting in the re-employment of laid off workers. At the end of March and then at the beginning of April 2002, municipal departments of labour employment held two large-scale consultations on employment, the topic being the organization of employment assistance fairs for workers laid off by the Liaoyang City Ferroalloy Group. As a result, preliminary employment agreements were reached for a total of more than 1,000 person-times, thus solving the employment problem of some of the
people concerned.
433. At this time, a worker at the Liaoyang City Rolling Mill, Yao Fuxin, and three workers at the Liaoyang City FAF, Pang Qingxiang, Xiao Yunliang and Wang Zhaoming, jointly carried out planned activities of terrorism and sabotage, severely threatening public security, disrupting public order and damaging public property. As they had broken the law public security authorities summoned them for trial in accordance with the law, and applied forcible measures. In view of the fact that their behaviour violated the relevant provisions in the Criminal Law of the People?s Republic of China and the Law of the People?s Republic of China Governing Meetings, Parades and Demonstrations, on 27 March 2002 after approval by the Liaoyang City People?s Procurator, the public security authorities of Liaoyang City arrested Yao Fuxin and the other aforementioned persons in accordance with the law on charges of holding illegal meetings, parades and demonstrations. At present, records are being established to hear the case.
?
439. The Government adds more generally that China is in the process of transition from a planned economy to a socialist market economy. In order to improve management and competitiveness, it is inevitable that state-owned enterprises would choose to conduct economic restructuring and lay off part of their workforce. There is no doubt that the reforms are moving in the right direction, and China will unswervingly move along the route of restructuring and opening to the outside world. As China is the largest developing country in the world with an enormous population, it would be hard to avoid the emergence of any conflicts in the process of economic restructuring. China has the determination and the capability to solve these problems through intensive reforms and to achieve simultaneous development in the economic and social fields.
440. The Chinese Government pays great attention to protecting the basic rights of laid-off workers, the unemployed, the retirees and other low-income social populations, and to properly arranging for their lives. Since 1998, the Chinese Government has creatively adopted a ?triple security? system, which includes a scheme to ensure basic living necessities for workers laid off by state-owned enterprises, an unemployment insurance scheme and a scheme to ensure minimum living standards for urban inhabitants. Meanwhile, measures have been taken to ensure the timely and full payment of basic living allowances to workers laid off by state-owned enterprises and pensions to retirees.
441. China has made great efforts to reform its social security insurance system. Through more than a decade of efforts, it has established a preliminary social security insurance system independent of the enterprises. Particularly in recent years, systems for pension, health insurance, unemployment insurance, insurance against work-related injuries and maternity insurance have been improved, the collection of premiums has been intensified, and social security coverage has been further extended. Through its efforts to establish a social security system and to promote employment, China has provided a basic social security net for persons from every walk of life, effectively protecting the right of citizens to life and development (which is the basis of human rights) and the right of citizens to employment (which is the basis of decent labour). The results achieved and the experience created by China are important contributions to the work on international labour affairs, and have gained wide recognition among international circles.
442. The Government further asserts that it has always protected and paid attention to the democratic rights of all citizens, including the right to freedom of association. There are explicit provisions to this effect in the Constitution, the Labour Law and the Trade Union Law. As a responsible member of the International Labour Organization, China recognizes and respects all the principles stipulated in the ILO Constitution, including the principle of freedom of association, and has made unremitting efforts to achieve these principles.
443. It must be pointed out, however, that the incidents which occurred in 2002 in certain places in China as mentioned in Case No. 2189 are simply labour disputes resulting from the adjustment of interests during the reduction of the enterprise workforce, and are in no way related to the freedom of association. In Liaoyang City, Yao Fuxin and his three accomplices took advantage of certain workers who were making an appeal to the authorities, and repeatedly planned illegal activities to disturb public order and endanger public security. Such behaviour has nothing to do with freedom of association. No responsible government of a state governed by law would have sat by and watched.
Allegations from the ICFTU are at variance with the facts, and constitute a misunderstanding and misinterpretation of the facts.
444. The Government concludes that the facts concerned in this case are already fairly clear, and that there should be no need for discussion by the Committee on Freedom of Association. Nevertheless, in the spirit of promoting cooperation and enhancing understanding, the Government expresses its willingness to maintain dialogue with the Committee.
C. The Committee?s conclusions
445. The Committee notes that the allegations in this case refer to the use of repressive measures, including threats, intimidation, intervention by security forces, beatings, detentions, arrests and other mistreatment meted out to leaders, elected representatives and members of independent workers? organizations at the Ferrous Alloy Factory (FAF) in Liaoning Province and the Daqing Petroleum Company in Heilongjiang Province, as well as violent police intervention in a workers? demonstration at Guangyuan Textile Factory and the sentencing of workers rights? advocates in Sichuan Province. Finally, the complainants allege the detention, arrest and mistreatment in Shanxi Province of an independent labour activist for trying to set up a federation for retired workers.
Ferrous Alloy Factory (FAF) in Liaoyang (Liaoning Province)
446. The Committee notes with concern the specific allegations concerning the arrest and detention of Yao Fuxin, Pang Qingxiang, Xiao Yunliang, Wang Zhaoming, leaders and representatives of the independent workers? organization at FAF, on charges of illegal demonstration, following a mass demonstration in March 2002 in support of over 10,000 retrenched workers. The arrests on 20 March of the latter three representatives were reportedly accompanied by violent and forceful police intervention resulting in numerous injuries to many of the demonstrators. The complainant further alleges that Gu Baoshu, worker representative, and Guo Suxiang, wife of arrested leader Pang Qingxiang, were also briefly arrested and detained and an unidentified protesting worker from the Liaoyang Fibre Factory remains in detention. Besides the allegations of violent police intervention during the demonstration on 20 March aimed at the release of Yao Fuxin, further allegations were made of police violence and beatings in respect of subsequent demonstrations on 15 May.
447. The Committee also notes with deep concern the allegations that Yao Fuxin?s health is in a very serious condition and the suspicions of torture or other mistreatment surrounding his detention. In particular, the complainant alleges that Yao Fuxin is suffering from a stroke caused by the onset of heart disease, itself following his brutal treatment at the hands of the police. After a brief hospitalization in March, he was returned to the Tieling detention centre where, despite the continuing deterioration of his health, he has allegedly been denied access to medical treatment, including a return to hospital or release on medical parole.
448. Allegations of mistreatment and beatings were also made by the complainant in respect of the brief detention of Gu Baoshu. The complainant further alleges that the police turned down a request by Xiao Yunliang?s lawyer to visit him, stating that Xiao had refused a lawyer. Finally, the Committee notes the allegation that Wang Dawei disappeared following his interventions in respect of the FAF struggle.
449. As concerns the demonstrations at the Ferroalloy Group, brought about by the
consequences of the factory?s bankruptcy, the Government indicates that an investigation group was immediately organized to look into the claims put forward by the workers concerning corruption at the enterprise and financial compensation for wages and social security. It further notes the Government?s report of measures taken to punish corrupt individuals, mobilize funds to ensure workers? basic living needs and to assist in the reemployment of the laid-off workers.
450. More generally, the Committee notes the various explanations given by the Government concerning the consequences of the process of transition from a planned economy to a socialist market economy and the multiple steps taken by the Government to solve the resulting problems and to protect workers? basic rights. While stating that it has always protected and paid attention to the democratic rights of all citizens, including the right to freedom of association, the Government adds that the incidents that are the subject of this complaint are simply labour disputes resulting from the adjustment of interests during the reduction of the enterprise workforce and are in no way related to freedom of association.
451. The Government links this general context to the particular case of the FAF workers, stating that Yao Fuxin, Pang Qingxiang, Xiao Yunliang and Wang Zhaoming took advantage of certain workers who were making an appeal to the authorities and repeatedly planned activities of terrorism and sabotage, severely threatening public security, disrupting public order and damaging public property. The Government states that they were summoned for trial in accordance with the law on charges of holding illegal meetings, parades and demonstrations, and that forcible measures were applied by the public security authorities. The Government concludes that the ICFTU allegations are at variance with the facts and constitute a misinterpretation of them.
452. While taking due note of the explanations given by the Government concerning the measures taken to respond to workers? demands and to ensure basic living needs, the Committee notes with regret that very little information has been provided in respect of the only issue before it for which it has any competence, that is the question of ensuring respect for the basic principles of freedom of association. This sparseness of information is all the more regretted in light of the detailed information provided by the complainants concerning the role and activities of the four FAF workers? representatives. While noting the Government?s general indication that these workers? representatives allegedly planned illegal activities to disturb public order and endanger public security, the Committee observes that the Government provides no detail as to the specific illicit nature of their activities yet admits that the entire context was one of a labour dispute. In the light of the information provided by the Government, the Committee requests the Government to drop the charges relating to terrorism, sabotage and subversion.
453. In these circumstances, the Committee must recall that the detention of trade union leaders or members for reasons connected with their activities in defence of the interests of workers constitutes a serious interference with civil liberties in general and with trade union rights in particular [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 71]. Further, noting that the Government has not supplied any information in reply to the specific allegations of violent police intervention in the workers? demonstrations, other than to state that the public security officials had applied ?forcible measures? against the alleged lawbreakers, the Committee recalls that workers should enjoy the right to peaceful demonstration to defend their occupational interests. The authorities should resort to the use of force only in situations where law and order is seriously threatened. The intervention of the forces of law and order should be in due proportion to the danger to law and order that the authorities are attempting to control and governments should take measures to ensure that the competent authorities receive adequate instructions so as to eliminate the danger entail ed by the use of excessive violence when controlling demonstrations which might result in a disturbance of the peace [see Digest, op. cit., para. 132].
454. In the light of the above, the Committee requests the Government to institute an impartial and independent investigation into the allegations of violent police intervention in respect of the demonstrations in relation to the workers? struggle at FAF in Liaoyang on 20 March and 15 May 2002. The Government is asked to provide detailed information to the Committee on the outcome of this investigation and to indicate the measures taken to compensate any injured workers. The Committee further requests the Government to institute an independent investigation into the allegations concerning the serious condition of Yao Fuxin?s health and the suspicions of torture or mistreatment surrounding his detention. The Government is asked to inform the Committee of the outcome of this investigation and of any measures taken in the event that it is found that Yao Fuxin has been mistreated while in detention, including the measures taken to ensure that he receives any necessary medical treatment.
455. As for the brief detentions of Gu Baoshu, worker representative, and Guo Suxiang, wife of arrested leader Pang Qingxiang, the Committee recalls that the arrest, even if only briefly, of trade union leaders and trade unionists for exercising legitimate trade union activities constitutes a violation of the principles of freedom of association [see Digest, op. cit., para. 70]. Further noting the allegations that Gu Baoshu was beaten during his brief detention, the Committee requests the Government to institute an independent investigation into these allegations and to inform the Committee of the outcome and of any measures taken in the event that it is found that Gu Baoshu was mistreated while in detention.
Finally, it requests the Government to provide any information it may have in respect of the whereabouts of Wang Dawei.
456. As for the arrest and detention of Yao Fuxin, Pang Qingxiang, Xiao Yunliang and Wang Zhaoming, in light of the insufficiency of the Government?s reply as to the precise nature of the activities resulting in the disturbance of public order and endangered public security and the fact that the initial charge of illegal demonstration was converted to ?subversion? nine months after the incident and two weeks before trial (a crime which reportedly carries a penalty of up to life imprisonment or even the death penalty), the Committee requests the Government to provide specific and detailed information on the charges brought against these four workers? representatives. In the meantime, the Committee recalls that it has considered the sentencing of trade unionists to long periods of imprisonment, very often on the grounds of ?disturbance of public order?, in view of the general nature of the charges, might make it possible to repress activities of a trade union nature [see Digest, op. cit., para. 64]. With this in mind, the Committee requests the Government to take the necessary steps for the immediate release of any of the FAF workers? representatives still detained and to ensure that the charges brought against them are dropped. It requests the Government to keep it informed of the measures taken in this regard.
457. As concerns the allegations concerning Xiao Yunliang?s lawyer?s lack of access to his client, the Committee recalls that detained trade unionists, like anyone else, should benefit from normal judicial proceedings and have the right to due process, in particular, the right to be informed of the charges brought against them, the right to have adequate time and facilities for the preparation of their defence and to communicate freely with counsel of their own choosing, and the right to a prompt trial by an impartial and independent judicial authority [see Digest, op. cit., para. 102]. The Committee requests the Government to ensure that due process of the law is guaranteed in respect of all the workers? representatives named in this complaint.
* * *
465. On a more general note, and giving full consideration to the context of transition described by the Government and its determination to achieve simultaneous development in economic and social fields, the Committee considers that it is precisely within this context that the only durable solution to the apparently increasing social conflict experienced in the country is through full respect for the right of workers to establish organizations of their own choosing by ensuring, in particular, the effective possibility of forming, in a climate of full security, organizations independent both of those which exist already and of any political party [see Digest, op. cit., para. 273]. While noting the Government?s statement that freedom of association is guaranteed through the explicit provisions in itsConstitution, the Labour Law and the Trade Union Law, the Committee must refer to its earlier conclusions in respect of certain significant legislative obstacles to the full guarantee of freedom of association.
In particular, in its examination of Case No. 2031 [321st Report, para. 165], the Committee recalled that, during its examination of two previous complaints presented against the Government of China [see 286th Report (Case No. 1652) and 310th Report (Case No. 1930)], it had concluded that the obligations set forth in sections 5, 8 and 9 of the Trade Union Act prevented the establishment of trade union organizations that were independent of the public authorities and of the ruling party, whose mission should be to defend and promote the interests of their constituents and not to reinforce the country?s political and economic system. The Committee had further noted that sections 4, 11 and 13 resulted in the imposition of a trade union monopoly and that the requirement that grass-roots organizations be controlled by higher level trade unions and that their constitutions should be established by the National Congress of Trade Union Members, constituted major constraints on the right of unions to establish their own constitutions, organize their activities and formulate programmes. Consequently, the Committee had concluded that many provisions of the Trade Union Act were contrary to the fundamental principles of freedom of association and had requested the Government to take the necessary steps to ensure that the provisions in question were modified.
466. In conclusion, the Committee strongly believes that the development of free and independent organizations and negotiation with all those involved in social dialogue is indispensable to enable a government to confront its social and economic problems and resolve them in the best interests of the workers and the nation. Indeed, a balanced economic and social development requires the existence of strong and independent organizations which can participate in the process of development [see Digest, op. cit., paras. 24 and 25]. In this context, the Committee requests the Government once again to examine the possibility of a direct contacts mission being undertaken to the country in order to promote the full implementation of freedom of association. The Committee expresses the hope that the Government will respond positively to this suggestion which has been made in a constructive spirit with a view to assisting the Government to find appropriate solutions to the existing problems.
The Committee?s recommendations
467. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
(a) The Committee requests the Government to institute an impartial and independent investigation into the allegations of violent police intervention in respect of the demonstrations in relation to the workers? struggle at the Ferrous Alloy Factory in Liaoyang on 20 March and 15 May 2002. The Government is asked to provide detailed information to the Committee on the outcome of this investigation and to indicate the measures taken to compensate any injured workers.
(b) The Committee further requests the Government to institute an independent investigation into the allegations concerning the serious condition of Yao Fuxin?s health and the torture or mistreatment surrounding his detention. The Government is asked to inform the Committee of the outcome of this investigation and of any measures taken in the event that it is found that Yao Fuxin has been mistreated while in detention, including the measures taken to ensure that he receives any necessary medical treatment.
(c) The Committee requests the Government to institute an independent investigation into the allegations that Gu Baoshu was beaten during his brief detention and to inform the Committee of the outcome of this investigation and of any measures taken in the event that it is found that he was mistreated. It also requests the Government to provide any information it may have in respect of the whereabouts of Wang Dawei.
(d) Given the Government?s indication that the events occurring at the Ferrous Alloy Factory fell within the context of a labour dispute, the Committee requests the Government to drop all charges relating to terrorism, sabotage and subversion.
(e) The Committee also requests the Government to provide specific and detailed information on the charges brought against Yao Fuxin, Pang Qingxiang, Xiao Yunliang and Wang Zhaoming. In the meantime, it requests the Government to take the necessary steps for the immediate release of any of the FAF workers? representatives still detained and to ensure that the charges brought against them are dropped. The Government is requested to keep the Committee informed in this regard.
(f) The Committee requests the Government to ensure that due process of the law is guaranteed in respect of all the workers? representatives named in this complaint.
(h) In light of the numerous allegations in this complaint concerning the excessive use of force by the police in various disputes taking place in different parts of the country, the Committee requests the Government to consider preparing relevant instructions for the forces of law and order aimed at eliminating the danger of resorting to the use of excessive violence when controlling demonstrations.
(j) The Committee requests the Government once again to examine the possibility of a direct contacts mission being undertaken to the country in order to promote the full implementation of freedom of association. The Committee expresses the hope that the Government will respond positively to this suggestion which has been made in a constructive spirit with a view to assisting the Government to find appropriate solutions to the existing problems.
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