Arbitrary arrests and detentions


4.1 International Law

The right to life, liberty and security of person is a fundamental right entrenched in the Universal Declaration of Human Rights (article 3). The UDHR also states that:

No one shall be subjected to arbitrary arrest, detention or exile.27

In 1996, Tibetans continued to be arrested, detained and sentenced on an arbitrary basis. Often they have not been informed of the charge against them, they have been denied legal access, they have been detained for unreasonably lengthy periods, their relatives and families have not been informed of their whereabouts and they have not been accorded a fair trial.

The UN Working Group on Arbitrary Detention, a thematic mechanism created in 1993, in determining the range of cases it will consider, has identified the following three categories:

I. Cases in which the deprivation of freedom is arbitrary, as it manifestly cannot be linked to any legal basis (such as continued detention beyond the execution of the sentence ...); or

II. Cases of deprivation of freedom when the facts giving rise to the prosecution or conviction concern the exercise of the rights and freedoms protected by certain articles of the UDHR and the ICCPR; or

III. Cases in which non-observance of all or part of the international provisions relating to the right to a fair trial

is such that it confers on the deprivation of freedom, of whatever kind, an arbitrary character.28 There have been a number of cases reported in 1996 which fall quite clearly into the latter two categories identified by the Working Group.

4.2. Arrested for the Exercise of Rights

The majority of Tibetans arrested and detained in 1996 have been held for the peaceful and non-violent exercise of their fundamental human rights to freedom of opinion and religion. In most instances the authorities of the People's Republic of China labelled this as "counter-revolutionary" activity and subsequently imposed grossly extended prison sentences.

The exercise of freedom of thought, conscience and religion is recognised in article 18 of the UDHR and the ICCPR, and the freedom of opinion and expression is recognised in article 19 of the respective covenants. These articles are both included as protected rights under category II above, and as such , the detention or prosecution for the exercise of such may be considered arbitrary.

Of the 204 arrests that took place in 1996, 166 of these were in reaction to Tibetans expressing their thoughts or religion. Examples range from the burning of photographs of the Chinese-appointed Panchen Lama reincarnation, distribution of independence leaflets, pasting of wall posters, distribution of prayers and disagreeing with PRC "Re-education Work Teams".

Similarly, the Working Group considers article 20 of the UDHR and article 21 of the ICCPR, which recognises freedom of peaceful assembly and association, within category II. Twenty arrests have been reported in 1996 following demonstrations by Tibetans. All have been peaceful and non-violent, most lasting just a few minutes and composed of a small group of individuals. On 6 July 1996, for example, eight nuns of Garu nunnery were arrested for staging a demonstration both calling for independence and celebrating the 61st birthday of the Dalai Lama.

Two of the arrests followed the exercise of the minority rights recognised in article 27 of the ICCPR and also included in the Working Group's second category. Article 27 articulates the rights of ethnic, religious or linguistic minorities "to enjoy their own culture, to profess and practice their own religion, or to use their own language."

In August, Yungdrung, a Tibetan artist was arrested in connection with his portraits of the Dalai Lama and the Tibetan national flag. In the same month Gendun Gyaltsen, a Sakya monk, was arrested for possession of pictures and cassette tapes of the Dalai Lama. These are examples of Tibetans exercising their cultural rights; the right to follow their own leader and to produce and possess images of that leader.

The cases of religious initiates questioning the policies and ideologies of Chinese work teams, in place in many monasteries and nunneries, may also be considered under article 27. The efforts of such work teams to erode the Buddhist religion, so intrinsic to the Tibetan cultural life, must also be considered an attempt to destroy the Tibetan culture.29

4.3. Arbitrary Detentions

There are countless Tibetans, arrested prior to 1996, who remain in arbitrary detention. Many indeed are serving extraordinarily heavy sentences and have spent the better part of their lives behind bars for the exercise of their rights, and often their sentences are extended while in prison for their attempts to continue to exercise those rights whilst in prison.

One such example is that of Ngawang Sangdrol, a Garu nun currently serving an 18 year sentence in Drapchi Prison. Ngawang was serving a three year sentence "for incitement to subversive and separatist activities" following her arrest in 1992 for attempting to stage a pro-independence demonstration. In October 1993 Ngawang had her sentence extended by six years for "spreading counter-revolutionary propaganda" after recording pro-independence songs while in prison.

On 30 November 1995, the UN Working Group on Arbitrary Detentions ruled that the continuing detention of Ngawang Sangdrol was arbitrary because she had been punished for exercising her right to freedom of opinion. The Working Group asked the PRC to remedy the situation so as to conform with the provisions and principles incorporated in the UDHR. This appeal by an international body went completely unheeded by the PRC. Not only does Ngawang remain in detention, but her sentence was extended in 1996 by a further nine years, again for the expression of her freedom of opinion.30

The most notable case of arbitrary detention which came to light in 1996 was that of Ngawang Choephel. In October 1996 the PRC officially acknowledged the detention of Ngawang, a Tibetan musician and scholar arrested by Chinese authorities in September 1995 while travelling in Tibet. Ngawang was undertaking some preliminary research for the creation of a documentary on the traditional folk music and performing arts of Tibet.

According to the Chinese Embassy in Washington DC, Ngawang was suspected of gathering "sensitive intelligence" and engaging in "illegal separatist activities" with American funding and at the instigation of the Tibetan Government-in-Exile. It appeared that Ngawang was, as a result, suspected of violating article 4, section 2(5) of the PRC's National Security Law.

Despite the official denial by the Tibetan Government-in-Exile of the Chinese accusation, the documentation of Ngawang produced prior to his arrest (a letter and a project submission, both signed originals) which attest to the peaceful purposes of his research trip and the massive appeals of concerned parliamentarians, human rights organisations and individuals, no evidence was offered by the Chinese authorities in support of the accusations against Ngawang.

Ngawang Choephel was held incommunicado for more than 15 months without charge or trial. On 26 December 1996 he was sentenced to a staggering 18 year imprisonment term and four years subsequent deprivation of political rights by the Intermediate People's Court in Shigatse. He was charged with "spying for the Tibetan Government-in-Exile" and accused of travelling to "Lhasa, Lhokha (Chinese: Shannan), Kongpo (Nyingchi) and Shigatse (Xigaze) to carry out his espionage activities, in an attempt to provide the information gathered to the Dalai clique's Government-in-Exile and to an organisation of a certain foreign country". Ngawang Choephel allegedly "confessed" to these charges.

According to a source in Tibet, on 16 October 1996 Ngawang Choephel was transferred to Sangyip Prison and was being held in cell 2, block 3. Since his sentencing his whereabouts are unknown.

Another case is that of Yulo Dawa Tsering, a 58 year-old former abbot at Ganden monastery and teacher of Philosophy at the University of Tibet. Yulo was first arrested in 1987 after talking to two visitors at Ganden about Tibetan independence and was finally released on parole on 4 November 1994, having spent a total of 27 years in prison.

Three weeks later a United Nations Human Rights delegation visited Lhasa to assess China's record on religious freedom and Yulo was allowed to meet with the Special Rapporteur on Religious Intolerance, M. Abdelfattah Amor. Yulo expressed his concern about the version of Tibet's history that is known to the world and said that he had been arrested for political reasons.

In 1996 it was reported that Yulo has been placed under what is effectively house arrest, apparently as a punishment for his comments to UN officials two years ago.31 Three members of the European Parliament (MEPs) visited Lhasa in early November 1996 and were allowed to meet with Yulo Dawa Tsering for ten minutes. The meeting took place at an unnamed location, amidst high security, with Chinese officials present and photographs forbidden. A Tibetan-English interpreter was not provided. The MEPs reported that Yulo appeared to be under some kind of restraint and was not the master of his own movements.

4.4. Non-observance of the Right to Fair Trial

A serious lack of justice prevails in the PRC's judicial system, its judiciary, lawyers and criminal procedure and there is a serious lack of observance of all or part of the international provisions relating to the right to a fair trial. As such, even when an individual is accorded a trial, the conviction and subsequent detention is of an arbitrary nature.

The Chinese Communist Party (CCP) exerts a pervasive influence on the judiciary. By law, all members of the judiciary must be members of the CCP and all political cases are adjudicated by a Political and Law Commission which is comprised of members of the judiciary, the Public Security Bureau and the Procuracy (agents of the court responsible for investigating and prosecuting criminal cases).

Judges are not required to have any formal legal training. Most judges have a Public Security Bureau or Army background which does not give credence to judicial impartiality, especially in politically sensitive cases. The judiciary is expected to actively take part in Government campaigns with the result that the degree of punishment received often depends upon whether or not a campaign is in progress.

As with the judiciary, lawyers have been under the pervasive influence of the CCP and the Provisional Regulations on Lawyers 1980 describe lawyers as "servants of the State".32 Lawyers may not defend their clients against "justified" legal charges with the result that their role is often limited to arguing for a lighter sentence. To do otherwise is to risk punishment.

The third area of concern is that of criminal procedure. A number of proposed laws purporting to strengthen the rights of the accused are due to be introduced in January 199733. However there is widespread concern that the new State Security and State Secrets legislation will similarly provide for arbitrary detention and politically motivated prosecution. How the judiciary actually implements the law remains to be seen.

While the Passage of the Decision on Revisions to the Criminal Procedure Law and the Lawyers' Law is theoretically an indication of reform, there is no guarantee that the legislation will be put into practice. Moreover, such reforms will come too late to provide security to the political prisoners currently languishing in Chinese prisons and detention centres and there remain many areas in which progress is still desperately needed.

For example, under Re-education Through Labour, used extensively in Tibet, Tibetans may be deprived of their personal freedom, without any court decision being reached, merely at the discretion of an administrative organ (the Public Security Bureau). Another example is "deprivation of political rights" which ordinarily means deprivation of the right to vote and stand for election, yet has been used by the PRC to restrict the movements of Tibetans after their release from prison, as in the case of Yulo Dawa Tsering detailed above.

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Last updated: 14-Feb-97