Effect given to the recommendations of the committee and the Governing Body - Report No 324, March 2001

Case No 2031 (China) - Complaint date: 04-JUN-99 - Closed

Effect given to the recommendations of the Committee and the Governing Body

1. 43. The Committee last examined this case at its June 2000 session [see 321st Report, paras. 140 to 176]. On this occasion, it had requested the Government to: (a) take the necessary measures to ensure that sections 4, 5, 8, 9, 11 and 13 of the 1992 Trade Union Act are amended in line with freedom of association principles; (b) take the necessary measures to ensure the immediate release of Zhao Changqing, Qin Yongmin, Zhang Shanguang, Yue Tianxiang, Guo Xinmin and Wang Fengshan, who were all sentenced to imprisonment ranging from one to 12 years in 1998 and 1999. In the case of Mr. Zhang Shanguang, the Committee had urged the Government to institute without delay an independent inquiry into the allegations of torture and ill-treatment inflicted on Zhang while in detention.
2. 44. In a communication dated 9 January 2001, the Government repeats once again that the 1992 Trade Union Act does not violate principles of freedom of association. More specifically, the Government indicates that section 4 of the said Act, which provides that "the National Congress of Trade Unions formulates or amends the Constitution of Trade Unions of the People's Republic of China which shall not contravene the Constitution and other laws" is consistent with Article 8 of Convention No. 87 since it is common practice in countries governed by the rule of law to state that no organization is allowed to place itself above the Constitution and law of the country. With regard to sections 5, 8 and 9 of the Act, the Government indicates that while the substance of these sections does not contravene freedom of association principles, they are being revised and necessary adjustments will be introduced so that the abovementioned sections can be more consistent with the expressions used in international conventions. As for sections 11 and 13 of the Act which provide that "the establishment of basic-level trade union organizations, local trade union federations, and national or local industrial trade union organizations shall be submitted to a higher-level trade union organization for approval", the Government reiterates that the establishment of the unified All-China Federation of Trade Unions was decided by the historic reality of China and the will of the Chinese workers and is in line with the basic interests of the broad masses of workers.
3. 45. Concerning the situation of Zhao Changqing, Qin Yongmin, Zhang Shanguang, Yue Tianxiang, Guo Xinmin and Wang Fengshan, the Government indicates that it has conducted further verifications which lead to the following conclusions. All these persons have been sentenced to imprisonment because of their breach of provisions of the Criminal Code of China and some of them are repeat offenders. The Government explains once again that their activities have nothing to do with freedom of association and they were all sentenced for criminal offences. In addition, the Government indicates that following its investigation, it appears that Mr. Zhang has not been maltreated during his custody.
4. 46. The Committee takes note of the information provided by the Government. With regard to the conformity with freedom of association principles of section 4 of the 1992 Trade Union Act, the Committee recalls once again that in exercising their right to freedom of association, workers and their organizations shall respect the law of the land provided that the law of the land shall not be such as to impair, nor shall it be so applied as to impair, the principles of freedom of association. The Committee further notes that sections 5, 8 and 9 of the Act are being reviewed in order that they can be more consistent with the expressions used in international conventions. However, the Committee must recall that several provisions of the Trade Union Act are contrary to the fundamental principles concerning the right of workers without distinction whatsoever to form and join organizations of their own choosing without previous authorization and the right of trade unions to establish their constitutions, organize their activities and formulate their programmes. The Committee therefore once again in the strongest terms requests the Government to take the necessary measures to ensure that sections 4, 5, 8, 9, 11 and 13 of the Act are amended in line with freedom of association principles.
5. 47. With regard to the situation of the six individuals who have been sentenced to imprisonment mainly on charges of instigating disturbances and serious disruption of social order, the Committee regrets that the Government merely reiterates the information it had provided previously. The Committee recalls its previous conclusion that these persons were sentenced to imprisonment for exercising legitimate trade union activities. In this regard, the Committee considers that while persons engaged in trade union activities cannot claim immunity in respect of the ordinary criminal law, trade union activities should not in themselves be used by the public authorities as a pretext for the arbitrary arrest and detention of trade unionists [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 64 and 83]. Therefore, the Committee once again strongly urges the Government to take the necessary measures to ensure the immediate release of Zhao Changqing, Qin Yongmin, Zhang Shanguang, Yue Tianxiang, Guo Xinmin and Wang Fengshan. The Committee requests the Government to keep it informed of developments in this regard.