[House Hearing, 107 Congress]
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                               before the


                      ONE HUNDRED SEVENTH CONGRESS

                             SECOND SESSION


                             JULY 26, 2002


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MAX BAUCUS, Montana, Chairman        DOUG BEREUTER, Nebraska, Co-
CARL LEVIN, Michigan                 Chairman
DIANNE FEINSTEIN, California         JIM LEACH, Iowa
BYRON DORGAN, North Dakota           DAVID DREIER, California
EVAN BAYH, Indiana                   FRANK WOLF, Virginia
CHUCK HAGEL, Nebraska                JOE PITTS, Pennsylvania
BOB SMITH, New Hampshire             SANDER LEVIN, Michigan
SAM BROWNBACK, Kansas                MARCY KAPTUR, Ohio
TIM HUTCHINSON, Arkansas             SHERROD BROWN, Ohio
                                     JIM DAVIS, Florida


                 PAULA DOBRIANSKY, Department of State
                 GRANT ALDONAS, Department of Commerce
                D. CAMERON FINDLAY, Department of Labor
                   LORNE CRANER, Department of State
                    JAMES KELLY, Department of State

                        Ira Wolf, Staff Director

                   John Foarde, Deputy Staff Director

                            C O N T E N T S



Cohen, Jerome A., professor, New York University School of Law, 
  New York, NY...................................................     1
Tanner, Murray Scot, professor, Western Michigan University, 
  Kalamazoo, MI..................................................     4
Hung, Veron Mei-Ying, associate, China Program, Carnegie 
  Endowment for International Peace, Washington, DC..............     7
Hecht, Jonathan, deputy director, China Law Center, Yale Law 
  School, New Haven, CT..........................................     9

                          Prepared Statements

Cohen, Jerome A..................................................    34
Tanner, Murray Scot..............................................    43
Hung, Veron Mei-Ying.............................................    52



                         FRIDAY, JULY 26, 2002

                                       Commission on China,
                                                    Washington, DC.
    The roundtable was convened, pursuant to notice, at 10:02 
a.m., in room SD-215, Dirksen Senate Office Building, Ira Wolf, 
(Staff Director) presiding.
    Also present: John Foarde, Deputy Staff Director; Susan 
Weld, General Counsel for the Commission; Matt Tuchow, Office 
of Representative Levin; Karin Finkler, Office of 
Representative Joe Pitts; Susan O'Sullivan, for Lorne Craner, 
Assistant Secretary of State for Democracy, Human Rights, and 
    Mr. Wolf. All right. I would like to welcome all of you to 
the ninth staff-led issues roundtable of the Congressional-
Executive Commission on China. The tenth, and final roundtable 
before the summer, will be an open forum on Monday, August 5 in 
this room at 2:30 p.m. If you are interested in participating 
in that, please check our Website in order to register.
    Today we will look at the criminal justice system in China. 
We have four panelists with us today--Professor Jerome Cohen 
from the New York University School of Law; Professor Murray 
Scot Tanner from Western Michigan University; Dr. Veron Mei-
Ying Hung from the Carnegie Endowment for International Peace; 
and Jonathan Hecht from the China Law Center at the Yale Law 
    We appreciate, Jonathan, that this is your second time 
here, the first being at one of the full Commission hearings 
earlier this year.
    There is a wide breadth of experience on the panel today, 
many years--decades--of research, of advocacy, of assistance to 
the development of China's legal system.
    Jerry, let us begin with you, please.

                  SCHOOL OF LAW, NEW YORK, NY

    Mr.  Cohen. I am delighted to have a chance to talk with 
the Commission staff. In 1997 and 1998, Presidents Jiang Zemin 
and Clinton made agreements that we should cooperate, the 
United States and China, on legal reform. Finally, in the last 
couple of years, we have witnessed significant cooperation.
    I think this hearing on criminal law matters is very, very 
important and I am happy to talk about the role of China's 
criminal defense lawyers, if only to assure their American 
counterparts that the post-9/11 government actions in this 
country have not yet subjected American lawyers, fortunately, 
to the problems of the Chinese defense lawyer.
    China's lawyers have come a long way in the last 20-odd 
years. They were denounced, of course, in the 1950s, 1960s, and 
1970s as ``the worst of that stinking ninth category of 
intellectuals.'' They were suppressed, resurrected in 1980, and 
in the last two decades, China's lawyers have really come a 
long way.
    They play a very important role in the country's economic 
development and cooperation with the rest of the world, 
supporting social and economic progress at home. They are 
making money, they are prestigious. They are important players. 
Lawyers are now one of the top categories for people's 
professional aspirations in China, but not criminal defense 
    Criminal defense lawyers are in a sad, frustrating 
situation. Some of them make money. Some of them are even 
recognized and admired. But even they lead a dangerous life, 
and a difficult, frustrating life. In my paper, for which I 
apologize, since it is so long, there is much material about 
this, and I discuss many cases of people based in the United 
States who have been detained in China. I have taken part in a 
number of those cases as advisor to the family and in my paper 
I try to link that experience to the more abstract propositions 
of my report.
    But essentially what I do, is first show the variety of 
excuses developed by the police--public security and secret 
police--and prosecutors, unfortunately, for keeping lawyers out 
of the case, frustrating the right given by the revised 
Criminal Procedure Law to counsel, even in the investigation 
    The pretexts that have been developed are a tribute to the 
ingenuity of police and prosecutors in developing mostly phony 
excuses, finding loopholes in the law which they then 
    Second, I show that even when a lawyer gets into a case at 
the investigation stage, what the lawyer can do is extremely 
limited. Lawyers can give advice if they can manage to meet the 
detained person, but usually they are only allowed to meet him 
    They cannot investigate the case at that stage. Usually 
they cannot even discuss the facts of the case with the 
suspect. They are very limited. It is highly artificial what 
they can do and it does not amount to much.
    Now, when the case is sent to the prosecutor at the 
conclusion of investigation, lawyers come into their own. In 
principle, they are recognized then as not merely legal 
advisors, but defense lawyers. Nevertheless, that is a very 
frustrating situation for them. They get very limited access to 
the material on which the prosecution is requested by the 
    They do not see the evidence that the investigators are 
giving the prosecutor at that stage. In principle, they can 
talk to witnesses, they can gather evidence, but they need the 
consent of witnesses. In some circumstances, they need the 
consent of the victim or his family, or the prosecutors.
    People do not want to talk to defense lawyers in China. 
Even though witnesses rarely go to court, they do not want to 
get involved even for purposes of giving their statements prior 
to trial.
    The upshot is, at the time when the prosecutor is deciding 
whether or not to indict, at the time when the defense lawyer 
is supposed to have an opportunity to discuss the case with the 
prosecutor before a decision to indict is made, the opportunity 
does not amount to much. It is hard to get the attention of 
prosecutors. Because of the restrictions involved, it is also 
hard for the lawyer to understand the case sufficiently to have 
a significant opinion.
    Things get even worse at the trial stage. At the trial 
stage, you would think a defense lawyer now would have an 
opportunity. They have not had pre-trial discovery to a 
significant extent, so they do not know the government's case 
in advance. They usually do not have enough time to prepare for 
trial, and they do not have enough access to witnesses and 
other evidence before trial.
    But here, you think, in court, when there is going to be a 
public trial, here is their chance because the new Criminal 
Procedure Law of 1996 made a significant innovation by 
providing the right to cross-examine witnesses.
    However, the problem is, if the witnesses do not come to 
court, there is nobody to cross-examine. If their statements 
are merely read out in court, as they are in almost all 
criminal cases in China, the right of cross-examination is 
    There are a variety of other restrictions in the trial. Of 
course, if the case is one involving political sensitivities, 
then there are even greater restraints on the counsel during 
the trial.
    My paper goes into all of this, with examples. Time is 
limited. I just want to reserve some time, not for the appeal 
or post-conviction stages which I also mention, but for the 
plight of the defense lawyer in terms of his personal 
insecurity. That insecurity is professional. It is also very 
    I have been involved in cases where, when the lawyers point 
out to the police that they have violated the Criminal 
Procedure Law, the lawyers get detained, sometimes so 
intimidated they drop the case, and in one case I know of, even 
gave up the practice of law.
    Then there is the risk of formal criminal prosecution. 
Under article 306 of the Criminal Law, dozens of lawyers have 
been detained, prosecuted, some even convicted, for supposedly 
assisting defendants in providing false testimony.
    Usually that is because the lawyer tells the accused, the 
confession you gave during investigation was coerced so you do 
not have to stick with that. You can tell the truth as you see 
    But when the defendant tells the truth as he then sees it, 
the lawyer is later charged with telling the defendant to give 
false testimony.
    One of China's leading lawyers, Zhang Jianzhong, is now in 
detention in China. We do not know for sure what the basis of 
the charge is under article 306. The police are reporting 
informally that it has nothing to do with criminal defense 
work, but he has been a leading criminal defense lawyer, and 
many of his colleagues at the Beijing bar feel he is being 
discriminated against because of his criminal defense work.
    There are other sanctions against lawyers, including 
control in sensitive cases by the local judicial bureau. 
Lawyers sometimes need to have the permission of the local 
judicial bureau to handle cases, certainly Falun Gong cases, 
and a variety of other politically sensitive cases.
    They have been prosecuted, on a selective basis, for not 
paying taxes, for corruption and for defamation of officials 
when they charge officials with misconduct.
    In sum, we have to recognize that, 20 years ago, criminal 
defense lawyers were just coming back after an absence of over 
two decades. But the life of the criminal defense lawyer today 
is a frustrating and difficult one.
    Finally, I end my prepared statement with certain proposals 
that might, at the suggestion of many criminal defense lawyers, 
boost their status and their cooperation with the outside 
    We ought to have joint research with them to underlie that 
cooperation, and I hope that Congress will continue the funding 
that it has recently begun for rule of law projects, and 
indeed, expand it. I think one of the most worthy subjects for 
Congressional support would be to study the plight of the 
Chinese criminal defense lawyer.
    Thank you.
    [The prepared statement of Mr. Cohen appears in the 
    Mr. Wolf. Thanks very much, Jerry. Scot.

                   UNIVERSITY, KALAMAZOO, MI

    Mr. Tanner. I would like to begin by expressing my sincere 
thanks to the members of the Commission for honoring me with 
this invitation, and thank in particular the Commission staff, 
in particular Mr. Wolf and Dr. Susan Roosevelt-Weld, for their 
kind help in inviting me and arranging my visit to the 
    It is also, by the way, an honor to share a panel with such 
well-known China legal scholars as Professors Cohen, Hung, and 
    The purpose of my testimony today is to focus some 
attention on the political and legal battle within China's 
legal system to confront the widespread and horrific use of 
torture, especially tortured confessions.
    Members of the Commission have heard testimony on the 
prevalence of torture, which has been carefully documented by 
Amnesty International, by Human Rights Watch, our own State 
Department, and many others. As an individual analyst, there is 
very little I can add to this excellent monitoring work.
    Instead, my testimony draws on my research on China's 
police to look at an important and unusual aspect of this 
battle against torture, the battle within the law enforcement 
system itself.
    For the past half-dozen years, a growing number of 
officials and scholars within China's law enforcement system, 
even some within the public security and procuratorial systems, 
have been criticizing China's pervasive torture problem with 
increasing bluntness.
    These officials and analysts are also openly debating 
policy reforms designed to control torture, in particular, 
pushing to professionalize reforms of law enforcement, as well 
as revising China's Criminal Procedure Law to create 
disincentives for torture. In many instances, these proposed 
revisions draw explicitly on U.S. and Western law.
    I cannot stress strongly enough that my purpose here today 
is not to argue the brief that either China's leadership or its 
law enforcement system are making adequate progress in dealing 
with torture. Emphatically, they are not.
    Nor am I here arguing that this emerging group of anti-
torture critics is strong enough to reform the system without a 
major overhaul backed by pressure from Chinese society and from 
the international community.
    Instead, my purpose is to carefully evaluate the origins of 
this pressure for improvement from within the system, to 
examine critically the proposals these officials and analysts 
are making, and analyze the obstacles they face in trying to 
promote progress.
    Such an analysis hopefully can assist the Commission and 
other U.S. policymakers trying to evaluate the most effective 
ways for the United States to assist in fighting torture and 
encouraging legal reform.
    In my mind, there is little question that the key obstacle 
to fighting torture in China lies in her authoritarian 
political system and we cannot realistically anticipate 
fundamental self-generating and self-sustaining progress 
against torture until China constructs the package of social, 
political, and legal institutions that most liberal democracies 
rely on to fight torture, most importantly a free, competitive, 
and aggressively investigatory press, citizen-based human 
rights organizations, independent, fair, and accessible courts, 
and, of course, multi-party elections as an implicit threat 
against unresponsive leaders.
    But even among authoritarian systems there can be 
significant differences in the levels of torture and law 
enforcement abuses. Thus, even without waiting for or weakening 
our commitment to full democratization, we can and must expect, 
promote, and support significant improvement in China's torture 
record through reforms within the existing system.
    In many societies, even fledgling democracies, torture is 
greatly exacerbated by a severe lack of law enforcement 
professionalism, including excessively compliant judges, a lack 
of even rudimentary commitment to legal procedure, and rules of 
evidence that create incentives for torture, as well as weakly 
trained police who lack the professional skills to solve non-
political criminal cases using legally gathered evidence.
    But in systems like China, even partial progress is 
impossible unless top leaders exert sustained monitoring and 
punishment of abuses. Under Jiang Zemin's leadership, that 
commitment to fighting torture has been largely instrumental, 
and at best sporadic, ambivalent, or to use Amnesty 
International's term, ``indifferent.''
    Periodic crackdowns on police abuses are only part of a 
strategy of the government to use rule by law to revive its 
legitimacy and to offer average citizens a bargain that says, 
in effect, if you stay away from politics, if you stay away 
from officially suspect religions, and do not commit crimes, 
the Party is going to try to guarantee you an orderly, low-
crime society and gradually expand legal protections against 
arbitrary law enforcement and abuses.
    Such a strategy, however, is extremely risky for the 
regime. In particular, any serious effort to reign in torture 
risks undermining the capacity of police and prosecutors to 
fight crime and maintain adequate law and order, which is of 
course the other cornerstone of this rule by law legitimacy 
    As in many authoritarian systems, decades of being 
protected by an undemocratic government have rendered China's 
law enforcement departments, quite simply, rather weak in 
modern criminal investigation skills and excessively reliant 
upon compliant courts, coerced confessions, and a culture of 
informants to obtain their convictions.
    This is, one might say, a police State in which the police 
are not very good at regular police work. These dilemmas help 
explain the start-stop and ambivalent character of legal 
    Among the most noteworthy steps forwarded in recent years 
has been the growing willingness of legal officials to 
acknowledge, sometimes rather publicly, that torture is 
extremely widespread. This contrasts with the denials and 
linguistic dodges that Foreign Ministry press spokespersons 
typically employ when they are asked about specific torture 
    Senior officials and analysts now characterize the torture 
problem as ``very serious,'' ``pretty common,'' ``a long, 
persistent, chronic disease,'' and even claim that ``the vast 
majority of police interrogators regard torture as a fast and 
effective technique.''
    Even Minister of Public Security Jia Chunwang told the 
summer 1998 Police Conference that torture and related abuses 
were one of the two most common complaints he heard from 
ordinary citizens.
    In late 1997, the Supreme People's Procuratorate openly 
published this case book entitled, in English, ``The Crime of 
Tortured Confession,'' that not only describes hundreds of real 
torture cases in the dispassionate and gut-wrenching detail we 
expect from an Amnesty International report, but also for the 
first time openly reported official statistics on torture 
    These statistics, though they clearly greatly understate 
the magnitude of the problem, nevertheless contained, for 
example, the striking admission that 241 persons were tortured 
to death in China between 1993 and 1994.
    In response to this, many law enforcement analysts are 
putting forward new proposals that typically fall into four or 
five categories: (1) greater professionalization and training 
for police and prosecutors; (2) reforming legal incentive 
structures, especially strengthening rules of evidence; (3) 
increased legal prosecution and punishment for torturers; (4) 
increased publicity for torture and its punishment; and (5) 
encouraging lawsuits by torture victims.
    Clearly, we can see that to the extent that if these are 
actually implemented--and that is a huge if--these proposals 
could yield significant benefits. But all of these proposals 
are also largely State initiated and state dominated, not self-
generating and self-sustaining. The only partial exception to 
that would be the last two, aggressive press publicity and 
    My written statement addresses each of these. In the 
interest of time, I want to touch just very briefly on two of 
the most prominent, professionalization and reforming the legal 
incentive structure.
    Calls for increasing professionalization of police and 
procurators are seeing that these officials employ torture 
primarily because they lack the professional skills necessary 
to solve many cases any other way. Investigatory skills and 
technology, legal knowledge, professional norms, education, 
personnel quality are all weak.
    I do not exaggerate when I say that many street-level 
Chinese police probably have less knowledge of modern crime 
scene management, fingerprinting, blood typing, and rudimentary 
forensic and investigatory skills than the average educated 
American viewer of ``Law and Order'' or ``NYPD Blue.'' I see my 
time is short. I will skip ahead.
    In the area of creating legal and institutional 
disincentives, anti-torture advocates are criticizing China's 
Criminal Procedure Laws for a lack of a presumption of 
innocence, a lack of an unambiguous right to remain silent, and 
in particular, the lack of an exclusionary rule to keep 
tortured confessions from being used in court.
    In recent years, there has also been rather fascinating 
debate by many public security scholars over whether or not to 
adopt a ``fruit of the poison tree'' exception for this.
    For U.S. observers, it is striking to see these officials 
using and advocating rules borrowed from Western law. While we 
have to be cautious about overestimating our foreign 
intellectual influence on legal reform, it is important to 
recognize the impact that exposure to these legal notions 
appears to be having in, of all places, Chinese law enforcement 
policy debates on torture.
    It may be, sadly, that the best we can hope for in the 
current authoritarian system is strengthening 
professionalization and legal disincentives. For the West, 
however, all of this raises an extremely complex and morally 
difficult dilemma of how to deal with such reform. Clearly, 
strengthening some aspects of law enforcement professionalism 
are an essential prerequisite to fighting torture.
    But, while improving the ability of law enforcement 
officials to solve real, non-political crime without resorting 
to forced confessions will very likely contribute to the rule 
of law and the Chinese's people's sense of legal rights in the 
long term, in the short term, it risks contributing to the 
institutional strength of the current flawed system.
    Along these lines, this research raises the question of 
whether or not expanded legal exchanges between carefully 
selected individual analysts and scholars within China's 
procuratorial system and with United States and other legal 
training institutes might contribute to some of these anti-
torture recommendations.
    I thank the Commissioners for their invitation, their time, 
and their kind indulgence.
    [The prepared statement of Mr. Tanner appears in the 
    Mr. Wolf. Thanks very much. Veron.


    Ms. Hung. Thank you for inviting me to speak here today.
    Over the past 10 years, I have, in different capacities, 
studied legal reform and human rights in China. I was legal 
associate for Asia at the Washington-based International Human 
Rights Law Group. I was also assistant professor of law at the 
City University of Hong Kong, and a visiting scholar at the 
People's University in Beijing. I worked with international law 
firms in Beijing, Hong Kong, and Los Angeles.
    As an associate of the Carnegie Endowment for International 
Peace, I implement its Political and Legal Reform Project to 
study, among other subjects, the impact of China's accession to 
the World Trade Organization [WTO] on its legal system and the 
legal reform in Shanghai.
    I recently trained legislative affairs officials from 
China's provinces and the State Council, the country's highest 
executive organ, on ``WTO and Judicial Review.''
    I am also a consultant for the United Nations Office of the 
High Commissioner for Human Rights, advising the office on 
implementing human rights technical cooperation programs in 
China. Today I will focus on re-education through labor, a 
mechanism of punishing ``minor crimes'' in China.
    I will discuss the greatest problems of this system, the 
current debate in China about its future, and my reasons for 
recommending its abolition.
    I will draw on discussion in my doctoral thesis entitled 
``Administrative Litigation and Court Reform in China,'' which 
is based on empirical research that includes observation of 
eight administrative trials and interviews with over 140 
judges, law professors, lawyers, administrative officials, and 
litigants in Guangdong province, Chongqing, Wuhan, and Beijing.
    Re-education through labor, one of the most prominent 
administrative sanctions in China, is imposed on people whose 
act is not serious enough to warrant criminal punishment, but 
too serious to deserve other lenient administrative sanctions. 
However, the Chinese criminal law and courts' interpretations 
do not clearly define ``serious'' and ``minor'' crimes.
    There are four problems of this system. First, the 
mechanism has been abused. As shown in principal legislative 
documents governing the system, the scope of re-education 
through labor has gradually expanded. Such expansion has drawn 
criticisms that these documents are conflicting, and that the 
police have turned re-education through labor into a crime 
control mechanism.
    The police dominate the committees that decide the 
imposition of re-education through labor and reportedly send 
suspects to labor camps if they lack evidence to support a 
criminal charge.
    Since its establishment in the 1950s, re-education through 
labor has sent 3.5 million people to labor camps. At present, 
300,000 people are being reeducated in nearly 300 camps 
nationwide. At least 1,000 of them are Falun Gong followers. 
Human rights groups estimate that the number could be 10 times 
    The second problem: Re-education through labor is more 
severe than some criminal punishments. Anyone who is subjected 
to re-education through labor may be detained in a labor camp 
for up to 4 years. Ironically, some criminal punishments are 
more lenient, fines and surveillance, for example. Even 
``criminal detention'' only lasts for 6 months at the most. 
This problem has aroused much concern because torture and 
maltreatment are alleged to be common in these camps.
    The third problem: The legality of re-education through 
labor is questionable. China's Administrative Punishment Law 
requires all administrative punishments that restrict personal 
freedom to be prescribed by ``laws.'' Under Chinese law, only 
the National People's Congress [NPC] and its Standing Committee 
can promulgate. Although re-education through labor is such 
type of administrative punishment, it is only prescribed by 
three decisions either made by the State Council or the 
Ministry of Public Security.
    The National People's Congress' Standing Committee did 
approve two of these decisions, but it does not mean that the 
approved decisions were transformed into ``laws.''
    The fourth problem: Implementation of re-education through 
labor is not effectively supervised. Re-education through labor 
is not a criminal punishment. So it is not subject to any human 
rights safeguards, however limited they are, embodied in 
China's Criminal Law and Criminal Procedure Law.
    In theory, aggrieved parties facing re-education through 
labor may resort to judicial review, or what they call in 
China, administrative litigation. In practice, the courts' role 
in reviewing the legality of administrative sanctions such as 
re-education through labor is limited. Aggrieved parties are 
afraid of suing administrative organs. They have limited access 
to lawyers. Above all, administrative organs' interference with 
the judicial process is serious.
    To tackle these problems, many Chinese scholars call for 
abolishing re-education through labor. They also suggest reform 
as an alternative. In this case, the maximum detention period 
should be reduced from 4 years to 1 or 2 years. Courts, as 
opposed to the police, should decide whether re-education 
through labor can be imposed, and these decisions can be 
challenged on appeal. Further, re-education through labor 
should be incorporated into the criminal law to subject it to 
human rights safeguards embodied in criminal legislation.
    However, these reform measures that I just mentioned, as 
proposed by the Chinese scholars, will not effectively resolve 
the problems of re-education through labor. Why? Although 
Chinese courts are undergoing a 5-year reform program, 
interference will not disappear soon.
    The Criminal Procedure Law only offers limited human rights 
protections and has not yet been fully implemented since its 
revision in 1996. Abolition of re-education through labor is 
the best option.
    The Chinese Government is planning to enact a law on re-
education through labor to fix some of its shortcomings. This 
intent is welcomed. The government must understand that any 
changes that fall short of addressing the problems discussed 
today will negate its efforts in establishing a rule-of-law-
based legal system. Re-education through labor is a major 
anomaly in such a legal system and the Chinese Government 
should abolish it. Thank you.
    [The prepared statement of Dr. Veron Mei-Ying Hung appears 
in the appendix.]
    Mr. Wolf. Thank you. Jonathan.

                 YALE LAW SCHOOL, NEW HAVEN, CT

    Mr. Hecht. Thank you, Ira. Thank you, other members of the 
Commission staff for having me back.
    Today, I am going to talk about developments in the area of 
evidence law in China. Evidence law, in my view, is the area 
where the most interesting and important debates about criminal 
justice in China are now taking place.
    I think this may seem curious to American lawyers.
    We tend to think of evidence law as a very narrow technical 
subject having to do with the presentation and examination of 
evidence in court.
    I think, in China, evidence law is also, to some extent, 
viewed as a technical subject, which may be why it has proved 
to be a useful vehicle for looking at bigger issues of criminal 
justice reform in China.
    In fact, the people who are focusing on evidence law in 
China are using it in that way, in order to focus on 
fundamental issues, fundamental problems in the criminal 
justice system, including many of the ones that Jerry and Scot 
were just talking about.
    The subject of re-education through labor is the other area 
where there is important work going on in China on criminal 
justice, but the legislative work in that area seems to have 
come to a stop. I think it would be interesting, perhaps, 
during the question and answer period to talk a little bit 
about what could be done to restart the legislative process in 
China on re-education through labor.
    In contrast, in the evidence law area, there is a lot of 
ongoing work. There is local experimentation, local court 
rules, for example in Shanghai, on evidence in criminal cases. 
Just in the last month or two, a very distinguished group of 
Chinese legal scholars put out what they are calling a 
scholar's draft, of an entire evidence law.
    In the National People's Congress, in the Legislative 
Affairs Commission there, there is a very active process of 
looking at issues of criminal evidence and drafting up 
legislation that would be presented to the NPC for its 
    I guess the basic question, is why evidence law. In 
answering that, I want to go back a little bit to look at where 
Chinese criminal justice has come from in the last 10 years. I 
think maybe at the end, if I have a little bit of time, I can 
talk about what this suggests about the process of reform in 
the criminal justice area in China.
    The current interest in evidence law in China really is an 
outgrowth of the reforms in the trial process that were enacted 
as part of the amendments to the Criminal Procedure Law in 
    Traditionally, fact finding in China in the criminal 
process has been done out of court and pre-trial. Judges in 
China have traditionally had broad powers of investigation. In 
reality, they often depended on the files that had been 
assembled by the police and reviewed by prosecutors. But before 
the trial began, they had the power to go out and do whatever 
investigations of the facts that they wanted. They did, as a 
routine matter, talk to the defendant, talk to witnesses, and 
they could, again, go and look at crime scenes, and so on. Only 
where, as a result of this pre-trial examination of the 
evidence, they felt that the facts were clear, would they 
actually open the trial.
    A number of factors led to a rethinking of this approach 
and to the reforms that were adopted in 1996.
    Some of these were very practical factors having to do just 
with the increase in the number of cases, the complexity of 
cases, the expense that the courts had to go to to actually go 
out and investigate. But there were also concerns about 
    There was a good deal of criticism within China of this 
system of pre-trial examination of facts because it essentially 
negated the right to defense entirely, because the court had 
already looked at all of the facts and made up its mind about 
the case before it even began the trial. There were also a lot 
of concerns about corruption, because all of this fact-finding 
was taking place behind closed doors.
    Then judges themselves, I think, were becoming increasingly 
unhappy with the sort of position that the system put them in, 
where, as a gatherer of facts and a presenter of facts in 
court, they were essentially acting as the prosecutor and 
coming into conflict with defense counsel. I think that they 
felt that that was undermining the respect that they ought to 
be getting as fair and neutral arbiters of the facts.
    So in the 1996 amendments, the trial process was reformed 
in the direction of putting the burden more on the prosecution 
and on defense counsel to collect and present the evidence at 
    The most significant change that this represented was the 
expansion in the role of the defense lawyer, who, before 1996, 
only came into a criminal case 7 days before the trial was to 
open. Of course, that was at a point where the court had 
already done its examination of the facts and essentially 
already decided the outcome, so there was not much for a 
defense counsel to do.
    So this shift in the 1996 amendments to putting the burden 
of collecting and presenting evidence on the parties 
correspondingly meant that the role of the judge as 
investigator would be much more limited.
    At the same time, the 1996 revisions tried to turn the 
trial itself much more into a fact-finding exercise in open 
court, where the parties would have an opportunity to present 
their case, the proceedings would take place in a transparent 
fashion that people had confidence in, and in that way try to 
address both these issues of fairness, as well as the sort of 
practical issues of how the courts could handle cases.
    As this has been implemented, as Jerry and others have made 
quite clear, things have not worked out the way that they were 
intended. There is still very little proof-taking at trial. 
Witnesses do not appear, experts do not appear. The written 
statements of witnesses and experts are presented as evidence. 
There is no opportunity to cross-examine.
    There is still very little ability, in reality, for defense 
lawyers to prepare for trial, as Jerry details in his paper. 
They have very limited powers to gather evidence on their own, 
and very little access to evidence gathered by the state. Where 
lawyers do try to play an active part in gathering evidence, 
oftentimes they are subjected to various forms of harassment, 
or ultimately prosecution, by the state.
    So the result is that the case that comes before judges is 
still quite one-sided, and one could even argue that is more 
one-sided than before, because at least before the judges, in 
theory, could be going out and doing their own investigation of 
the facts. Now judges are sitting in the court waiting for 
facts to be presented to them, but the only facts they are 
seeing are the facts that are developed by the state.
    So the current debates about evidence law are largely about 
how to make the 1996 trial reforms work. One of the big areas 
of interest has to do with witnesses and how to get witnesses 
to appear in court. There are a lot of obstacles to this, some 
of them having to do with traditional preferences against 
testifying, some of them having to do with fear of retribution. 
But there are also some more technical problems involved.
    The Chinese courts have no process for compelling witnesses 
to appear in court and they have no basis for providing 
compensation for people who miss work, or have various expenses 
in connection with coming to court.
    Naturally, on the prosecution side, they are not very 
enthusiastic about having witnesses appear in court because 
they prefer to have the ``sure thing'' of their written 
    While in most respects judges would like to see fact 
finding take place in open court in the way that was foreseen 
in the 1996 revisions, they themselves do not have a lot of 
experience doing it and I think that they are not quite sure 
how they should oversee trials that have live witnesses.
    But there is a broad recognition of the need to get 
witnesses to appear if fact finding is going to occur at trial, 
if these issues of transparency are going to be addressed, and 
if the defense is going to be given a chance to question the 
    As I have said, there has been some local experimentation. 
The Shanghai courts have adopted some rules about requiring key 
witnesses to appear in all criminal cases. There was talk about 
enacting a separate law on witnesses at the National People's 
Congress. That now has been folded into this broader effort on 
    With respect to the right to defense, which was the other 
major goal of the 1996 reforms, there is a lot of emphasis now 
on developing a system of discovery. This would compensate for 
the lack of ability that defense lawyers have under the 1996 
law to gather evidence themselves, as well as improve their 
access to evidence that is in the hands of the state.
    There are, again, local experiments going on in Yantai, in 
Shandong Province, with discovery. This is also now being 
focused on as part of this broader evidence law.
    Let me just quickly say one thing about some of the bigger 
issues that are being considered. I think one of the 
interesting things about what has happened with the evidence 
law, is that it has also gone beyond the immediate problems 
with the 1996 revisions to address a lot of the pre-trial 
problems in the criminal justice system.
    This reflects a recognition that importing an adversarial 
process into the trial stage alone is not sufficient if the 
entire pre-trial stage is highly inquisitorial and police-
    So, there is a lot of interest in various issues concerning 
the defendant as the source of evidence, and this relates 
directly to what Scot was talking about in terms of torture and 
the development of rules on the right to silence and rules on 
exclusion of illegally gathered evidence. I think that this is 
in some ways the most significant area in terms of long-term 
development because of the problem of a police-dominated pre-
trial system.
    Mr. Wolf. Thanks. I will start out with questions.
    I am going to keep coming back to this question in further 
rounds, because I want everyone to address the role of legal 
scholars and legal reformers in China.
    If we look at economic reform, the Communist Party 
determined decades ago that it needed consistent growth to 
maintain public support of the regime. Deng Xiaoping made a 
decision that he could pursue economic reform without having a 
significant impact on political reform.
    In the case of judicial reform, what, in fact, are the 
powers and the influence of legal scholars today? How would you 
differentiate between the ability of Deng Xiaoping to go down 
the road of economic reform--trying to isolate it from 
political reform, and the fear or unwillingness of the top 
leadership to take interest in legal reform because of the 
possible implications.
    So, Jerry, let us start out with you.
    Mr.  Cohen. I admire very much the role that Chinese legal 
scholars and law professors have played in recent years. When I 
first visited China in 1972, legal education was non-existent. 
In 1973, I met some law professors. They had nothing to say.
    I admired their deep suntans, because they had been working 
in the fields for years. But now they are important players, 
and they are courageous players, and they take a very active 
role in law reform, more important than their counterparts in 
the United States.
    There are also legal scholars working in the National 
People's Congress as staff people. There are legal scholars in 
the Ministry of Justice. Even Public Security has good legal 
scholars in the sense of people sincerely concerned with law 
reform who are highly knowledgeable experts. The State Council 
also has these people. They are very important.
    As the number of lawyers increases, as the number of 
specialists expands in all of these government departments, 
including state-owned enterprises, and even in private 
enterprises now, and joint ventures, a legal elite is 
developing in China that is increasingly influential.
    But their influence, as Scot has indicated, is not 
sufficient. You really need to reach the leaders of China. 
While the Standing Committee of the Politburo allows itself to 
be photographed on the front page of the People's Daily 
occasionally like schoolboys studying international business 
law and WTO matters, I would like to see someday a similar 
photograph of them studying the Criminal Procedure Law of China 
and the U.N. Convention Against Torture, to which China has 
adhered. These are not purely domestic questions.
    Supreme Court leaders, in principle, have been very 
enlightened, but they operate within a limited sphere. I like 
very much the quotation from Veron Hung's paper of the previous 
Supreme Court President Ren Jianxin, who in late 1996 
criticized law enforcement officials who have taken advantage 
of legal loopholes, intentionally misinterpreted the law, 
distorted evidence, and broken the law they enforce. That is an 
admirable summary of my paper.
    Similarly, when I have said that the courts are sometimes 
an instrument of oppression in China, I am quoting reports of 
the Supreme Court leadership saying the courts must be used to 
suppress ``counter-revolution,'' and a lot of these troublesome 
political problems.
    The legal elite themselves are not strong enough. They need 
political support. Our hope must be that there will be a new 
political leadership coming in during the next year or two, as 
China phases in new leaders, who will be more sensitive to the 
values that we are talking about today. Those values are under 
challenge in our own country at this moment also, but the fact 
is, China is in much more serious shape.
    Now that China is a member of the world community, taking 
part in WTO, hosting the Olympics, having millions of people 
visit China every year, I think the Chinese Government has to 
move up criminal justice in its priority list.
    Mr. Wolf. Thanks. We will come back to this question in a 
little while.
    Next is John Foarde who is the Deputy Staff Director of the 
    Mr. Foarde. Thanks to all four of you for sharing your 
expertise with us this morning. This has been a very rich 
conversation that has gotten us deeply into something that we 
are very interested in. So, thanks for putting the effort into 
the papers, and what have you.
    Scot, I think I will begin with a question to you, please. 
What do you think would be the biggest disincentive for Chinese 
police or law enforcement authorities to torture, an 
exclusionary rule or some ability by a victim to sue, as we 
have in section 1983 of title 42 of the United States Code? 
What is the biggest disincentive?
    Mr. Tanner. Well, obviously both of those are very 
significant. But actually the one that I would put up at the 
top, is that extorting a confession by torture is very clearly 
and unambiguously a crime under Chinese law.
    One of the things that is made clear if you read these case 
books, is that the punishments meted out for these things are 
extremely light, even when they bothered to prosecute.
    We did a statistical run-down on the 200 and some-odd cases 
in this, and less than 10 percent actually involved anybody 
being sent to prison. In many cases, these are suspended 
sentences anyway. In most cases, there are administrative 
penalties for this sort of thing.
    We do not even know what percentage of torture cases 
actually get prosecuted. Indeed, I suspect an extremely small 
percentage, and I will tell you why I suspect that. The 
official number of torture cases in China in a given year is 
listed at about 400 to 500. Yet, we know that upward of 125 
people a year are reported killed as a result of torture. It is 
not credible that one-fourth of all cases that begin in torture 
end in death.
    What that strongly suggests to me, is that the cases that 
get prosecuted are the ones where there is clear physical harm 
or the death of the person involved. So I would say that the 
biggest thing that the leadership could do to create a powerful 
disincentive in addition to, as you mentioned, lawsuits and 
exclusionary rules, would be if they very seriously prosecuted 
a much larger percentage of these cases, and that would require 
pushing local Communist Party officials to prosecute these 
cases and then to mete out the punishments that the law 
    Mr. Cohen. It is a problem in every society, including our 
own. The police and so-called law enforcement authorities tend 
to protect each other, and sometimes there are understandable 
reasons. We struggle with that every day in New York City, in 
Washington, and in lots of places. But it is worse, much worse, 
in China. I agree, criminal punishment should be used against 
police who violate the law.
    Mr. Tanner. Pardon me. Since you raised the question of New 
York City, every Chinese police scholar I have spoken with 
knows the cases of Abner Louima in New York and Rodney King in 
Los Angeles. They have all seen the King tape.  One thing that 
they did all take note of, is the very long prison sentence 
that was given to Officer Volpe. A lot of them found that a 
very encouraging thing.
    I would say, without even hinting at moral equivalence 
here, one of the things that the United States can do that 
actually has an impact on China, is when we punish these things 
very strongly, this stuff gets noticed in China.
    Mr. Foarde. The exclusionary rule is very controversial, 
even today. What sort of conversation is going on in legal 
circles in China about it? Is it the same sort of issues that 
proponents and opponents of the exclusionary rule in the United 
States have, or is it different?
    Mr. Cohen. Well, Jon can talk about this, of course. They 
have been debating and going back and forth, settling sometimes 
on the position of excluding illegally obtained confessions, 
but continuing to admit illegally obtained physical evidence, 
because the physical evidence does not lie. You can have less 
confidence in a confession. But they are wavering on this. It 
is, understandably, a very difficult subject.
    Mr. Tanner. I would point out that one of the first things 
they do when they study an issue like this, is that they 
undertake a tremendous translation of Western legal materials.
    You can see the research materials that they compile of 
United States law, and British, and Canadian, and all sorts of 
other systems. So, they address these things with a very strong 
understanding of how these issues have been battled in the 
United States. For example, questions of good-faith exceptions.
    Mr. Foarde. We will come back to this, because other people 
want to ask questions, I think.
    Mr. Wolf. Matt Tuchow works for Congressman Sander Levin, 
one of our Commissioners.
    Mr. Tuchow. Thanks. My question comes down to a more 
practical policy-oriented question for you about the 
Commission's work and how to tackle the difficult issue of 
trying to influence the Chinese. In listening to the witnesses 
today, I heard an encouragement of technical assistance 
programs in the area of rule of law and exchange.
    But I am wondering if the panelists--and maybe I will 
direct this, first, to Professor Cohen, then if we have time, 
the others--could address what policy recommendations you feel 
the Commission should make to play a role in pressuring the 
Chinese or encouraging the Chinese to fairly and honestly 
reform and implement their criminal procedure laws.
    Mr. Cohen. Well, I think the Chinese Government, not only 
at the top but at the working level, and the Chinese judiciary, 
even the prosecutor's office, the procuracy, generally welcomes 
foreign assistance, not only United States assistance, but 
European, Japanese, whatever, and they are quite right to do 
    This is a wonderful time to try to make some progress in 
the light of this possibility and in light of the obvious needs 
of China's system. Chinese leaders are very proud people. They 
do not want to be criticized, as they are being criticized 
today, in a prominent forum. I think we should try to work with 
    Now, it gets more controversial. We have started training 
judges, and that is an exciting and rich field, I think, with 
many possibilities. But prosecutors also need legal training, 
more than even judges. The most controversial question will be, 
and it was implicit in what Scot said, about the police. It is 
obvious the police are the most powerful of the law enforcement 
agencies in China.
    They really dominate the show, as Jon and Veron have also 
impressed on us. Something has to be done. There are, within 
the police, as Scot has demonstrated, people who are receptive 
to law reform assistance. On the other hand, that may be 
politically unpalatable at home in the United States because 
``the optics,'' are not too good. Some will ask: Training 
Chinese police? Are we going to make them better repressors?
    But the truth is, at the working level, they need all kinds 
of sensitivity to legal values and to better legal methods of 
investigation. The more cooperation we can have with them, I 
think, the better.
    It is a little bit like the analogous question, to what 
extent do we cooperate with the Chinese military? There are 
pros and cons. Sometimes engagement is politically impossible, 
as after June 4, 1989. But I lean to engagement.
    Engagement, I think, spreads the values that we 
increasingly share with China. I think there are many 
possibilities, and this Commission can encourage a number of 
specific programs, and even recommend their financing.
    Mr. Tuchow. How about the other panelists? In particular, 
if you agree that technical assistance is part of the solution, 
how do you do it smartly so it does not get wasted or get in 
the wrong hands?
    Mr. Hecht. I think, as someone who has actually been 
involved in that for a long time, it is a very difficult 
question. But I think the starting point has to be 
understanding what the situation is in China.
    I think that that is another very important function that 
the Commission is performing, getting more information out 
about what the actual State of affairs is in China, where the 
problems lie, where the opportunities for improvement lie, and 
what are the institutions and the people in those institutions 
that can be looked to as real movers for change in the Chinese 
    I do not think there is really any magic formula. It is 
just a lot of hard, painstaking work in order to identify where 
those opportunities and where those potential partners lie.
    Ms. Hung. Perhaps I may add one remark on--actually, in the 
context of reform of the re-education through labor system--
what kind of assistance the United States can offer to help 
    The answer to this question is also linked to the first 
question raised about the role of legal scholars in China. Look 
at the recent developments in this area, re-education through 
labor. In early 2001, the Chinese Government said that they had 
a plan to enact a law on re-education through labor by the end 
of the year. But right now, this plan seems to have changed. 
There is no clear timeframe existing as to when they will enact 
this piece of legislation.
    I recently went to Beijing to interview legal scholars in 
this area. They actually said that this could be a good 
opportunity, because now they have more time to do research, to 
learn from other countries' experiences. They want to take this 
opportunity to have joint research projects, or maybe to have a 
chance to come to the United States or other Western countries 
to understand how they punish offenders of minor crimes.
    So in this regard, I think that one type of assistance the 
U.S. Government and also organizations here in this country can 
offer is to establish training and joint research projects.
    Mr. Wolf. Thanks.
    Susan O'Sullivan works for Lorne Craner, Assistant 
Secretary of State for Democracy, Human Rights and Labor.
    Ms. O'Sullivan. Thank you all for your presentations today. 
They were very helpful to me, and I am sure to everyone here.
    I have a question related to Matt's, and also to Ira's, 
that focused a little bit more on criminal lawyers. I read 
somewhere recently that criminal lawyers made up 3 percent of 
the bar in China several years ago, and now it is down to 1 
percent. At the State Department, we are following these recent 
arrests that you referred to, and Jonathan, also.
    I am wondering if there is something that you could 
recommend to us that we could be doing diplomatically, or even 
programmatically, to help the criminal defense bar in China. 
Generally, I think we all agree that rule of law programs are 
the way to go, but if you have any more specific 
recommendations of things we could be doing at the State 
Department, as well as in the Commission.
    Mr. Cohen. I think there are two levels. One, is to show 
support for them in various ways. For example, the State 
Department has a distinguished program for visitors. You seldom 
see a Chinese criminal lawyer invited on those. They are not 
people who know English, by and large. They are people who 
concentrate domestically.
    We can encourage our bar associations to put on programs. 
Recently, the Canadian Bar Association had a very good 2-week 
program with Chinese criminal defense lawyers. They have 
emphasized to me, we should be doing similar things.
    I brought one of the leaders of the Chinese bar to NYU for 
a week. It was fabulous for us, our students, and people in the 
New York community. But we ought to be doing much more to make 
that kind of visit, not merely the 1-month tour but the follow-
up for staying in one place and doing some serious exchanges.
    But then there are many subjects we ought to be pursuing 
with them. Although our system suffers from many defects and we 
are struggling with them, we are making progress and we are way 
ahead of China in this regard, and the Chinese are aware of 
    There are so many things that we ought to be sharing with 
them, exchanging ideas about, now that they are coming into a 
serious period of law reform.
    I mean, how can they establish some functional equivalent 
of habeas corpus? One of the most frustrating things about 
being a defense lawyer in China, is where do you go when the 
police or prosecutors violate their own law? To whom can you 
    In traditional Imperial China, you could ring the county 
magistrate's gong and sometimes get a hearing that way, or even 
make it to Beijing to the Imperial Court. Where do you ring 
that gong now? We have a provision. The Chinese are working 
with us about that possibility.
    Mr. Wolf. Thanks. Can I suggest that you let some other 
people participate?
    Mr. Hecht. Well, just to follow up on where Jerry is going, 
I think the underlying problems that the Chinese defense bar 
faces are these structural problems in the criminal justice 
system. Obviously, we should be giving support to individual 
criminal defense lawyers, but more fundamentally we need to be 
helping them create an environment in which it is possible to 
be a criminal defense lawyer.
    That goes to, I think, the range of things that we have 
been talking about today in terms of how to reform the trial 
process so that what the criminal defense lawyer does has some 
meaning, how to reform the pre-trial process so criminal 
defense lawyers can actually prepare a case and do it without 
risking ending up in jail themselves.
    Ms. Hung. Perhaps one specific issue we can also address is 
that, while criminal defense lawyers encounter this problem, in 
fact, administrative law lawyers also encounter the same 
problem. Lawyers are not willing to stand up to the government. 
That is why they do not want to take up administrative cases 
and criminal cases. They do not want to offend the government.
    Why? Because their licenses to practice have to be renewed 
by the government every year. So, perhaps we need to think 
about whether this system should be changed.
    Ms. O'Sullivan. Thank you.
    Mr. Wolf. Next is Susan Weld, general counsel of the 
    Ms. Weld. Thanks a lot.
    One thing that occurred to me in listening to some of the 
testimony today is whether strengthening the aspects of an 
adversarial system now present in the Chinese procedure is the 
way to go, and what the problems might be for China in the 
future. I guess I will start with Jonathan on that. I would 
like to hear what Veron has to say, then going left.
    Mr. Hecht. Well, I think the Chinese themselves have 
decided they want to strengthen the adversarial nature of their 
system. The problem--and I referred to this but did not really 
get to it in my remarks--is how to get from here to there, and 
what are the problems that can emerge between here and there. I 
think that that has been characteristic of a lot of areas of 
reform in China, not just the legal area.
    Ira referred earlier to economic reform. Economic reform 
has been described in China as a process of crossing the river 
by feeling the stones. To some extent, I think that has been 
the case in the legal area as well. As each reform has been 
adopted to address some immediately apparent problem, it has 
tended to throw up a lot of other issues.
    Either it has exacerbated other problems, as has happened 
with the criminal defense bar as we have been talking about, or 
it has served as a forum for discussing underlying problems 
that perhaps could not be discussed previously, but which are 
now too obvious for people to ignore.
    I think that is what we are seeing now with respect to this 
discussion about pre-trial procedures which do not fit with the 
increasingly adversarial trial process. So, I think that that 
is the nature of the reform process.
    The challenge for us, and this goes back to Matt's 
question, is to identify what are the problems on which 
progress can be made in the short term, but which contribute in 
the long term to a criminal justice system that is both 
effective and fair.
    I do not know if there is time to talk a little bit more 
about re-education through labor, but I think this is an 
excellent case study of how to engage effectively in legal 
reform in China.
    I agree with all of Veron's analysis of the problem and 
with the need for fundamental reform, but I disagree that the 
answer is simply to tell the Chinese to abolish it. In addition 
to being used to suppress political dissent, re-education 
through labor is used to deal with a lot of problems that all 
societies face: Prostitution, drug use, minor crimes, juvenile 
delinquency. To go to the Chinese and simply say, abolish this 
system, is a non-starter because these other problems still 
need to be dealt with in some way.
    So the challenge for us to help them craft responses to 
those problems so that then the use of re-education through 
labor as a political tool is exposed. If it has no purpose 
other than to deal with political dissidents, then it has no 
legitimacy, even in the Chinese context.
    Ms. Hung. Perhaps I can say something about re-education 
through labor. According to recent developments, the government 
seems to have said they do not want to consider abolition as an 
    As I quoted in my statement, the director of the Ministry 
of Justice's Bureau of Re-education Through Labor, explained, 
``For such a populous Nation as China, the re-education through 
labor, which aims at stopping those on the verge of committing 
serious crimes, is an effective way of reducing crime.''
    Based on the research I did in China, one main concern they 
have is exactly what Jonathan just mentioned. They want to use 
re-education through labor as a means to punish drug addicts, 
prostitutes, brothel visitors, and other offenders of minor 
    In fact, based on recent statistics, of all the current 
inmates, one-third are punished by re-education through labor 
because they were drug addicts, prostitutes, and brothel 
visitors. The other third are offenders of minor crimes that I 
just mentioned.
    One point we need to bear in mind, is that when I say 
abolition is probably the best option for curing the problems 
they face in re-education through labor, it does not mean that 
we cannot do other things.
    For example, the government has said that there is a need 
to have re-education through labor because this is a means to 
punish drug addicts and prostitutes. Then my question is, are 
there any other measures you can take? Can you help these 
people or punish these people in another way? What other 
countries' experiences can the Chinese Government refer to 
instead of using such a harsh punishment like re-education 
through labor?
    So I am not suggesting that these people should go free and 
we do not offer any assistance. This is not my idea. I just say 
that the re-education through labor system is such a big 
anomaly in this rule-of-law-based legal system, that it should 
not exist anymore. Thank you.
    Mr. Wolf. Karin Finkler is with Congressman Joe Pitts of 
    Ms. Finkler. Thank you to all of you for your testimony.
    I would like to follow-up on Ira and John's questions, in 
the interest of time, so there is a little more time for people 
to expand on their ideas. Jonathan, you looked like you had 
some things to say earlier, so if you would please start, on 
the role of legal scholars in reform, and also on the 
disincentives for Chinese police, regarding use of torture.
    Mr. Hecht. I think the Chinese legal scholars, if you look 
back over the last 15 years, have played an incredibly 
important part in opening up new areas of debate.
    The whole area of human rights, which was a taboo area in 
China as recently as 1989, 1990, was essentially opened up to 
public debate and ultimately embraced as part of the 
government's own discourse, largely through the efforts of 
    A lot of the more concrete problems that we have been 
talking about today, right to silence, exclusionary rules, and 
so on, again are things that have been introduced into China as 
ideas by scholars.
    But at the same time, I do not think we can overestimate 
the influence of scholars. Ultimately, the power of decision is 
in the government. The bureaucracies are tremendously powerful. 
A lot of what is ultimately possible in China depends on a 
political decision at the very top.
    So, I think academics are a very important conduit for new 
ideas, but I think we also have to be building bridges to 
reformers within the institutions of the legal system and the 
political system themselves. I think that Ira's earlier point 
about developing a broader constituency for legal reform in the 
government is very, very important.
    I think one way to do that is to make more explicit the 
link between economic reform and legal reform. I think that 
there has to be a much broader recognition within the 
government that if economic reform is going to continue to be 
successful, the importance of a professionalized, independent 
legal system cannot be overlooked.
    As far as disincentives to torture, I think if you look at 
our own experience in the United States, criminal penalties 
are, of course, important. Compensation to victims is, of 
course, important. But in our own experience, these were not 
enough to stop police abuses.
    What has ultimately been effective in cutting down police 
abuses in the United States--though of course they still 
occur--has been a combination of the exclusionary rule and 
other sorts of measures, both taken within the police and 
forced upon the police, to create conditions where coercion is 
less likely to occur.
    If you look at the Chinese criminal process, there is no 
bail system, so all criminal suspects are held in police 
custody for long, long periods of time. Access to lawyers, as 
Jerry has talked about, is limited. Access to family is 
limited. Outside oversight of detention centers themselves is 
quite limited. These are all inducements to torture.
    So I think that, ultimately, there has to be a focus on 
both of those areas of reform in China, both the exclusionary 
rule so that there is a disincentive to torture because the 
evidence that you come up with will not be admissible, and also 
creating conditions that are less conducive to torture in the 
first place.
    Ms. Hung. Two examples actually illustrate very well the 
roles played by the legal scholars. On the one hand, they play 
a significant role, but on the other hand, their role is also 
very limited.
    One, is re-education through labor, another is judicial 
reform. For example, as I just said before, because the 
government seems to have already set the tone that abolition 
should not be considered earlier this year, legal scholars in 
Beijing organized two large-scale forums.
    One was on procedural issues involved in the reform of re-
education through labor, the other one focused on the 
substantive issues involved in this system. So, they cannot go 
beyond the scope, saying that we recommend to abolish the 
    Another example, is judicial review. I interviewed the 
Supreme People's Court senior judges. Quite a few of them are 
scholars at the same time. They said that they felt their hands 
were tied.
    For example, the scope is severely limited by the Supreme 
People's Court's 5-year court reform plan. If we take a look at 
that 5-year reform plan, the focus is more on training, on 
something that they can do within the court system.
    But a major problem of the court system right now that we 
have in China is that the courts are controlled by the local 
governments. Because courts' personnel arrangements and 
financial arrangements are, to some extent, subject to local 
governments' control. So, that is why the type of reform we 
need for improving the court system is institutional reform.
    But this is not mentioned in the court reform plan, only 
briefly mentioned, saying that maybe within these 5 years we 
can conduct some research on this area to see what other 
countries do in terms of the relationship between the court and 
other branches of the government. But that is all. So, you can 
see how limited these legal scholars' roles are.
    Mr. Wolf. Thanks.
    Scot, can you address my earlier question? And maybe bring 
it down to the area of torture, where, as you said, the senior 
leadership is simply uninterested in addressing this. Is there 
a role for the legal scholars, and those in the system who are 
looking at reform, or under current conditions is it a 
fruitless effort because of the concerns of the impact of that 
    Mr. Tanner. Well, as I stressed in the beginning part of my 
statement, significant progress is possible within the current 
system, though I still believe that fundamental progress on 
that particular issue is going to require a full-scale change 
of the Chinese political system.
    But let me use that to step off a little bit and talk about 
the role of scholars. The ones that I have been studying play a 
particularly interesting and important role here because a 
number of these people train students in China's police college 
    That means that they get to train the people who are then 
going to go out to the provincial police colleges throughout 
the country and train, and so on down the line.
    They do have a great opportunity to influence the way that 
these people think about the handling of criminal cases, 
whether or not they have at their disposal a repertoire of ways 
of solving a case that do not just involve what some people 
call the ``Claude Raines theory'' of policing--round up the 
usual group of suspects and beat them until somebody confesses.
    So they can have an enormous impact on what is one of the 
fundamental long-term challenges, which is retraining this vast 
core of prosecutorial and police officials throughout the 
    Another place where they have a tremendous amount of 
influence, alluded to by my colleagues here, is that several of 
these people take part and play a prominent role in the actual 
drafting of these laws.
    One who has written widely about the redrafting of the 
Criminal Procedure Law is Professor Cui Min of the People's 
Public Security University, who happens to be one of China's 
most vocal and persistent critics of the problem of torture. 
So, here is another person who has an opportunity to influence 
the actual regulations on this.
    Nevertheless, these people still have to deal with the 
regular officials within the procuracy, the public security 
system. It is quite clear that on some of these issues, 
particularly things such as exclusionary rules, they face an 
enormous amount of opposition from the working level leaders 
within this system.
    In the end, however, within an authoritarian system, as I 
say, there are not self-sustaining, self-generating mechanisms 
for fighting torture. So, it still comes down to, how much 
pressure does the top leadership put on lower levels to fight 
torture as opposed to pressuring them to solve crimes?
    Very clearly, the top leadership in China right now is more 
concerned about the crime rate spiraling out of control and are 
more fearful that that loss of control over crime is going to 
eventually undermine their legitimacy and authority. So, in the 
end, they put more pressure on that than they do on fighting 
    Mr. Wolf. Before President Bush met with Jiang Zemin, 
Senator Baucus and Congressman Bereuter, the Chairman and Co-
Chairman of the Commission, sent a letter to the President 
asking him to raise the issue of the visit by the U.N. Special 
Rapporteur on Torture, requesting that this be allowed.
    I heard in Beijing, a couple of months ago, that the 
Chinese had agreed to his visit, but I do not think anything 
has happened since then.
    How significant is it in your mind, as you try to influence 
the more senior levels to have a visit by the Special 
Rapporteur on Torture?
    Mr. Tanner. I would say moderately significant, not 
enormously significant. There are some within the Chinese 
police system who believe that, because China has acceded to a 
wide variety of these agreements, that means that China should 
therefore revise its internal laws to meet these international 
agreements against torture.
    That is rather striking because, of course, as Ms. 
O'Sullivan knows, the standard line from the Chinese is that 
human rights standards are unique to each country, and that 
international agreements like this should not be used to force 
China to change its system. But we do see some voices within 
the system saying that we should accept this sort of outside 
international influence.
    Mr. Wolf. Thanks.
    Mr. Foarde. Some odds and ends questions. Jerry, at the 
beginning when you were talking about the criminal bar, defense 
bar in China, you said that some are able to make a living 
doing it. How do they set fees, and how do they collect them?
    Mr. Cohen. Well, this raises some important questions, 
again, that we could share in cooperation with them because we 
have had to deal with these. The British have a different way, 
sometimes, of dealing with questions of contingency fees.
    Chinese lawyers will sometimes take contingency fees of a 
very significant nature. In other words, if they get a certain 
result, then maybe their original fee might be trebled, or many 
times more than that.
    But that troubles me, because it is a real incentive to 
corruption. Lawyers in China--unfortunately, criminal defense 
lawyers prominent among them--are often channels to corruption, 
    Some of them feel that, although they will not take part, 
they know their clients sometimes take measures and they just 
look the other way, the way some foreign corporations look the 
other way when they know middle men are taking actions that are 
not legal on their behalf.
    So I think this whole question of fees is very important to 
study. I have been in some cases where I have been disturbed by 
some of the criminal defense lawyers' actions, trying, for 
example, to take advantage of the helpless suspect who is 
awaiting trial and has no access to the outside world except 
through the defense lawyer, and the defense lawyer says, here, 
sign here an agreement that will say if I get you out in the 
next 10 days, that you will give me X.
    I mean, that is terrible coercion of the client. You are 
supposed to be, as a defense lawyer, protecting the interests 
of the person who is subject to incommunicado detention and 
interrogation, not exploiting them. So, there are serious 
questions of fees.
    I think the financial problem is not a serious problem for 
criminal defense lawyers. It is these other sanctions. Also, 
the question of respect. That is why I mentioned individuals 
who can be recognized, and the desirability of foreign bar 
associations indicating their support.
    We should be interested in not only the WTO, not only in 
foreign investment and arbitration of commercial disputes, we 
should show greater interest in criminal defense problems that 
these people are confronting and we have a long experience 
    Mr. Foarde. Is there a nationwide criminal defense 
    Mr. Cohen. Yes. Under the ALL China Lawyers Association, 
there is a nationwide criminal defense lawyers' group. It is 
headed by distinguished, experienced people. Even these people 
feel under pressure. When lawyer Zhang Jianzhong got locked up 
in Beijing, people in the Beijing Bar Association, people in 
the national bar association, were very concerned, but it was 
hard to get a peep out of them.
    One point I mentioned in my report that I did not talk much 
about in my summary is the control of the local judicial bureau 
over sensitive matters. I made a brief allusion to it, but did 
not go into any detail.
    These defense lawyers are people who can lose their law 
practice, they can lose their partners' law practice, their law 
firm can be shut down. They can go to jail, informally, for 
long periods, and they can be formally prosecuted. I think 
article 306 of the Criminal Law should be abolished because it 
is, indeed, as the lawyers say, a sword of Damocles that 
intimidates them.
    Mr. Hecht. If I could just add two things on defense 
lawyers. Of course, the vast majority of criminal defendants 
are poor in China, as they are everywhere. The Chinese have 
tried to deal with that by keeping the mandated fee for 
criminal defense lawyers quite low.
    The Ministry of Justice rules on lawyers fees set the 
amount that lawyers can charge. Of course, they do a lot on the 
side with these contingent fee arrangements, and so on, but the 
actual fee that they are supposed to charge is quite low. That 
has created another disincentive, of course, for lawyers to 
take these cases.
    So one of the big problems that China has to face is coming 
up with some sort of public defender system that is going to 
enable the majority of criminal defendants to get a lawyer 
under conditions that they can afford.
    But you also have to recognize that even with those sorts 
of measures, that chances are you are not going to have enough 
criminal defense lawyers in the near term in China to handle 
the number of cases.
    Getting back to re-education through labor and its reform, 
if those cases are moved into the formal criminal justice 
system, the numbers of cases is going to go up considerably. 
That is a real, practical concern that the Chinese also have 
that could be addressed by thinking about alternatives to 
lawyers per se. If you go to U.S. drug courts, if you go to 
U.S. community courts, you see various types of representatives 
and advocates for the indigent other than defense lawyers. 
There is a whole range of different people who can serve a 
similar sort of function, especially in fairly minor cases.
    So, this is another example of where we have an opportunity 
to share some quite practical, useful experience that could 
actually open up some of these bigger problems that we have a 
tendency to try to come at at very high levels.
    We do not like the system, we want it to change, but you 
have to get down into the guts and see what is making the 
system go in China and what conditions are there or not there 
in China for solving the problem.
    Mr. Wolf. Thanks.
    Mr. Tuchow. There are so many questions I would like to 
ask, but I am going to stick, again, to a large, over-arching 
question. In my previous question, we spoke a lot about 
engagement. Some think that the flip side of engagement is 
pressure, but perhaps that is part and parcel of the same thing 
because when you engage, you try to pressure as well.
    One of our mandates as a Commission is to create a 
prisoner's list. Professor Cohen has mentioned in his paper a 
number of political prisoners. I am interested in your thoughts 
as to how we as a Commission can best work on behalf of 
political prisoners, whether it makes sense for the Commission 
to mount campaigns on behalf of individual political prisoners, 
and if doing so cuts back at all on our ability to engage the 
    So I guess the question kind of boils down to, how do you 
sensitively pressure, if you feel that is appropriate? Why 
don't I start again with Professor Cohen, and then to the 
others if we have time.
    Mr. Cohen. I think the most important thing we can do in 
the United States does not directly concern China. It is the 
example we set within our own society and legal system. As Jon 
has already noted, this is widely appreciated in China.
    Are we people who say ``do as I say but not as I do,'' who 
expect the Chinese to adhere in practice to our theories even 
though we ourselves are under pressure constantly, especially 
after 9/11, to abandon some of our values?
    Now, as to direct measures of cooperation with China, of 
course, I think the Chinese are practical people. They know 
they need cooperation. They are willing to cooperate with us 
now on legal matters, and that is something, as I said, we 
should take advantage of.
    But we should not do it at the sacrifice of ventilating 
problems that exist now. There are courageous, democratic 
people in China serving many, many years in prison simply 
because of efforts to organize a truly democratic party.
    Xu Wenli has put in about 18 years in prison. He is in 
deteriorating health now. What is his offense and what kind of 
a trial did he really get? Mrs. Rebiya Kadeer, out in Xinjiang 
Province, is another example. There are a lot of people whose 
cases deserve continuing ventilation until China gets smart 
enough to release them and get them off United States-China 
relations' agenda, because they are very negative examples of 
good people being suppressed. China is impugning its own 
reputation by harming these people.
    A final point. I do not want Jon to be misunderstood. He 
has been supplementing my remarks so I am not misunderstood, 
and I appreciate it. I just want to say, none of us is for 
keeping re-education through labor. None of us. The question 
is, how to deal with it? It is a kind of a false dichotomy we 
are talking about here. Abolish it, in the sense of ignoring 
the problems it is designed to meet? Veron has explained she 
did not mean that.
    China has to stop the current version, where it puts people 
away for 3 or 4 years with no real substantive guidance that at 
least the Criminal Law purports to provide in other cases, and 
no real procedural protections which the Criminal Procedure Law 
provides. It is not that one should ignore prostitution, or 
drug addicts, or a lot of these other problems that plague 
China as well as other societies.
    The problem is, it is inconsistent with all of China's 
criminal justice reforms to allow re-education through labor to 
persist to let people be put away for 3 or 4 years under this 
    As Jon says, we have to address, if the Chinese want our 
help, how can we find legal techniques in light of our 
experience, and that of others, that might address these 
problems in a way more consistent with the Chinese Constitution 
and legal reforms that we are talking about, even with their 
    So I agreed with Veron's statement, because I understood 
her. It would be desirable to abolish the current sanction, but 
one cannot walk away from the problem, as Jon said. It has to 
be handled in some ways that are more consistent with the post-
1996 criminal justice reforms in China.
    Mr. Tuchow. Jon, real quickly, what are your thoughts about 
our role regarding political prisoners?
    Mr. Hecht. There is no question that there should be a list 
of political prisoners. I think that the Commission's role as 
an educator of the American public about the situation in China 
and the potential for legal reform can be carried out at the 
same time as you are preparing prisoners' lists. I do not 
really see any problem with that. But, as to who is going to 
actually take these prisoner lists and do something effective 
with them, that is a more difficult matter.
    Mr. Wolf. Next, Susan O'Sullivan.
    Ms. O'Sullivan. Just to pick up on the list issue. I think 
that we have had our greatest success with putting pressure on 
the government to release people when it has been kind of a 
joint project.
    The Song Yongyi case comes to mind, where the academic 
community spoke out very forcefully on his behalf. Jerry Cohen 
played a key role. Members of Congress, Senator Specter and 
others, played a key role. The State Department was in there 
doing its thing.
    So I really think that if you are going to talk about 
lists, leaving it to the State Department is probably not the 
way to go because we need other people to be reinforcing what 
we are doing. I mean, I think we have lists. We pass them all 
the time and we raise cases all the time, but my experience has 
been that it is really helpful when other people are raising 
their voices, too.
    In terms of a question, on the human rights agenda that we 
have been trying to push for a long time for China's 
ratification of the International Covenant on Civil and 
Political Rights, and China has signed this under pressure at 
the summits in 1998, they now tell us as a matter of course 
that they are reviewing their laws and trying to bring their 
laws into compliance, and this is why they have not ratified, 
and this is why they cannot predict when they will be finished 
and when they will be able to ratify this.
    I am wondering, going back to the question of what sort of 
outside pressure is affected and supports those inside China 
working for change, whether you think this is something useful 
for us to continue to pursue, keeping in mind that a lot of 
people ratified it and do not comply with it, just your sense 
of the futility of that as a human rights agenda item.
    Mr. Cohen. Again, the United States sets a powerful 
example, negative or positive. If we would complete our 
adherence to various human rights agreements, we would be in a 
better posture, and that would exert very influential pressure 
on China, and others.
    Mr. Hecht. I think it should continue to be pursued, not 
with any expectation that it is likely to actually happen any 
time soon. But I think that China has accepted this as the 
benchmark. It has not ratified it, but its government has 
signed it and its leadership has said that it is committed to 
ultimately ratifying it. I think that it should be held to that 
    I think that if you look at a lot of the issues that we 
have been talking about today, one of the sources of 
argumentation that reformers within China use again and again, 
is the international standards.
    To the extent that you have an inside/outside effort to 
both push for formal ratification, use the standards in 
discussions at the Commission on Human Rights, and at the same 
time provide an international backing to the effort within 
China to look at the covenants as the standard that China 
should aspire to, I think that is a very powerful and useful 
    Ms. Hung. Perhaps we have to ask the question, why did they 
decide not to ratify the international covenant? Is it because 
there is no strong will to do that? Or is it because they 
believe that the system is not ready for them to ratify this 
international covenant as they cannot satisfy all of the 
    If this is the case, then one issue we need to tackle is, 
how can we help them to bring the legal system in line with 
these requirements? So that is the reason why we say human 
rights is a very sensitive topic. But legal reform, I believe, 
is a fundamental solution to the human rights problem. This 
issue is not sensitive, so the U.S. Government can offer some 
assistance in this regard.
    Mr. Tanner. Ms. O'Sullivan, I think that pressure for 
Chinese ratification of these international covenants, and to 
bring their own system in line with that, is one of a wide 
variety of areas where we should continue pressure on the 
    We cannot expect that this is going to have a huge impact. 
I do not see a lot of evidence that, internally within the 
system, that this is regarded as a major lever, but it is one 
among several.
    We have the historical example of the way that the Helsinki 
agreements were used in Eastern Europe over a long period of 
time, two decades, to create increasing pressure for that. I 
see people in China who are thinking in the same sort of long-
term fashion to use this as one more lever to change the 
    Mr. Cohen. I think it is important that we not bilateralize 
the question intellectually and in practice. I think Europeans 
are a very important influence. China does business with 
Europe. European business people, visitors, and tourists want 
to be respected by a proper criminal justice system.
    So I think, similarly, there are countries and areas 
adjacent to China whose example is very useful for the Chinese 
to study. That means South Korea, that means Taiwan.
    Those places have made great progress in some of these 
problems in the last 15 years. The more we can bring to bear 
that experience, where social, economic, cultural, historical 
conditions more closely resemble those of the mainland of 
China, I think that, too, is useful.
    There is a tendency here, naturally, to think of reform as 
a United States-China issue. Of course, I do not have to tell 
you, that is the most sensitive political relationship. Often, 
reform comes in a more multilateral way and more comparative 
    Mr. Wolf. Susan Weld.
    Ms. Weld. Thanks, Ira.
    I wanted to ask about something that many of you seem to 
talk about as a dead letter, which is the administrative 
litigation law. One problem with the punishment of re-education 
through labor, is that it is administrative in nature. It does 
not come within the scope of the protections of the criminal 
procedure laws.
    If the administrative litigation law does not help people 
in administrative detention, could it be fixed to help them? I 
believe it is not just re-education through labor, but all 
sorts of other kinds of detention where that law might be 
helpful to people. So I guess I am asking all of you, starting 
with Veron, because that is her specialty.
    Ms. Hung. I want to understand the question better.
    Ms. Weld. All right. As I understand from your statement, 
you do not feel that the ALL functions to protect people in 
those circumstances. Could it be fixed so that people could use 
it to protect themselves? Could it also operate in other kinds 
of administrative detention where people do not have access to 
    Ms. Hung. Right. In fact, I have spent a lot of time 
studying administrative litigation in China. That, as I 
mentioned, was my focus in my doctoral thesis. There are a lot 
of problems, but there also have been some improvements, like I 
have noticed that there has been growing respect for procedural 
    But then a major problem, again, and again, and again, is 
interference from administrative organs and Communist Party 
members. Can that be fixed? It is very difficult, for the 
reasons I just said before. Why do we have that? Because the 
courts feel that they are subject to pressure. They are 
susceptible to their control because personnel and financial 
arrangements are controlled by local governments.
    But I still remain hopeful. Why? Because there has been a 
lot of discussion among government officials on how they can 
improve the system. Recently, they have been talking about 
drafting a piece of legislation called ``administrative 
procedure law'' in addition to what they have now, 
``administrative litigation law.''
    I talked with a committee consisting of five scholars that 
is drafting this piece of legislation. They look at other 
countries' experience, including the United States and European 
countries, to see whether they can learn from these experiences 
to improve the administrative litigation system. So, I try to 
remain hopeful.
    Mr. Cohen. The judicial review of administrative action is 
a startling development in China that only got going in 1989, 
1990. I am not so pessimistic. I would not characterize it as a 
dead letter.
    WTO is going to inject a little more life into that.
    So far, one of the restrictions of China's administrative 
litigation law is that the judges are not supposed to consider 
abstract regulations, only concrete cases, and there are 
questions of what meaning to ascribe to both of those terms.
    But I think China will have to revise, soon, its 
administrative litigation law to permit judges also to review 
abstract regulations, and that could even justify a court that 
felt comfortable in doing it--and that is a big if--in saying 
that the re-education through labor regulation decisions are 
not in accordance with Chinese law.
    Ms. Hung. I am very happy that Jerry just mentioned the 
WTO, because I almost forgot. In fact, this is a big 
opportunity for the Chinese Government to improve the system 
because under the WTO agreement, China is required to ensure 
that their judicial review system is independent.
    Judicial review system means the administrative litigation 
system in China's context. Because they are bound by this 
international treaty obligation, they have to improve it, 
otherwise they have to face the consequences. So, eventually 
this will benefit the entire legal system in China as well. 
    Mr. Hecht. If I can just add one more comment on this. I 
think both Jerry and Veron have talked a lot about the reform 
of the administrative litigation law itself, and there is an 
active effort going on to reform the administrative litigation 
law, and there is an academic group that is drafting, again, 
what they are calling a scholar's draft, but they are very tied 
in with the NPC and the actual lawmakers.
    But I think your point was specifically about detention and 
the role of administrative litigation in dealing with 
detention. I think this ties in somewhat with what Susan was 
saying. The problem in the Chinese case has been this division 
between criminal detention and administrative detention.
    Re-education through labor has been such a huge human 
rights problem, precisely because it has continued to be viewed 
as an administrative measure. And where the international 
standards really play an important role, is that it cuts 
through that to make clear that what matters is not whether it 
is called ``criminal'' or called ``administrative,'' but 
whether people are deprived of their liberty.
    If people are deprived of their liberty, then there must be 
a prior judicial decision and prior judicial process. 
Administrative litigation, even in the best of circumstances, 
only happens after the fact.
    So I think, again, this is an area where a new conception 
needs to be encouraged, away from this arbitrary division into 
criminal and administrative, and toward more explicit reference 
to the international benchmark.
    Mr. Wolf. Well, this has been, obviously, a very rich 
discussion. We have a few more minutes, if there was something 
that was left unsaid that you would like to mention. We can 
start with Jonathan and work our way down. If there are things 
you think of, by the way, afterward that you wish you had said, 
we are happy to add that into the record.
    But, Jonathan, anything that you want to add, or sum up, 
    Mr. Hecht. Well, I think I have spoken a fair amount, 
    Mr. Wolf. All right.
    Ms. Hung. I want to add one remark that I have repeatedly 
mentioned ever since I arrived in Washington. I believe that 
United States assistance in legal reform in China bodes well 
for United States-China relations because such dialog is 
beneficial to the United States as well.
    The topic is closely related to two issues that the 
American Government and also American citizens are most 
concerned about: ``human rights,'' and``WTO and trade with 
    Human rights is a highly sensitive issue in China. But 
legal reform, a fundamental solution to this problem, is not.
    It is also beneficial to the United States if they help 
China to reform the legal system because we know that China 
cannot satisfy all of the WTO obligations immediately. We can 
foresee that numerous trade disputes between China and the 
United States will occur. So, to reduce these conflicts, the 
United States should help China bring its legal system in line 
with the WTO agreements.
    Once the United States offers this kind of assistance, I 
believe it can provide a springboard for improving United 
States-China relations, and that can also help resolve other 
thorny issues, such as Taiwan issues. This is my final note.
    Mr. Wolf. Thanks.
    Mr. Tanner. Thank you.
    One of the issues that was raised earlier was the way in 
which we consider whether or not to expand our legal 
cooperation to include elements of the procuracy, and perhaps 
even people within the public security system.
    I sympathized greatly with one of the points that was made, 
which is that it is very, very difficult to figure out exactly 
how to section that sort of cooperation off to make sure that 
we are contributing to improvement in the human rights 
situation in China and not inadvertently simply making this 
repressive system better and more efficient at being 
    There are a few things that I think we can do that are 
controllable that we might be able to think about for helping. 
Perhaps by bringing some scholars and officials from these 
systems over to the United States, some of the people who are 
going to be training lower-level officials later on.
    It has an enormous impact on them to see that the United 
States is not the anarchic, crime-ridden society that a lot of 
them have been told that it is, that crime can be fought 
without resorting to torture.
    The exchange of materials, things like translation or study 
materials, or things like that. These are things that Chinese 
universities and training institutes are very starved for. So, 
that sort of thing is worth considering.
    In a sad way, one thing that can be noted is that one area 
in which Western countries and the Chinese police already have 
a good deal of contact--and it is not official contact, it is 
market contact--is that a significant number of companies in 
the west that deal in police equipment already are involved in 
joint ventures in China.
    I have walked along Zhengyi Street in Beijing. There is a 
strip of police goods stores. You can go in there, and they are 
perfectly happy to tell you, oh, yes, this stun gun we made in 
a joint venture with such-and-such a European country, or so 
on, and so forth. It is tragic that that is, in some way, the 
best-developed aspect of contact between the west and Chinese 
    I think we want to consider, with the procuracy and the 
public security system, trying to think of controllable ways in 
the academic sphere that we might contribute to improving their 
training so that they can fight crime without resorting to 
    Mr. Cohen. I think structural reform has to be the ultimate 
proposal. The Manchu Dynasty did more for structural reform of 
its legal system than the Chinese Communist Party has done for 
its system.
    For example, no Manchu judge would be sent back to his 
local area to work. Too many dangers of corruption, familistic 
ties, etc. Any Manchu judge was only kept in place, wherever he 
was sent, for 3 years for similar reasons. They moved them 
    The evil of local protectionism and the way it destroys any 
independence and integrity for the Chinese court system is 
recognized every year in the annual report of the president of 
the Chinese Supreme Court. But it is like Mark Twain said about 
the weather: ``Everybody talks about it, but nobody does 
anything about it.'' They have to do something about it.
    Some enlightened future leaders have to realize how 
important this is to China's system domestically, and 
increasingly, internationally. Chinese courts are weak. They 
need more professional help. They do not address many questions 
in their judgments.
    They sort of hide them under the table or just ignore them. 
And they are under the coordination of the Communist Party 
Political Legal Committee, and I think that should be ended. 
They should be left to stand on their own professional feet. I 
think a lot of things can be done.
    A final point. We have not mentioned the importance of a 
free media to rule of law. You cannot have, in any country or 
genuine legal system, a rule of law system, and human rights 
protection unless the media are free to report on the abuses 
that occur in every country.
    Where would we be in our own society with respect to all of 
the problems we have mentioned here if we did not have a free 
press to ventilate these things to put the heat on legal 
administrators, police, politicians, etc.?
    The more China can develop freedom of the press and 
competent legal specialists to report--they have some legal 
investigative reporters--the more likely it is that the 
government will be stimulated to stamp out corruption and 
create a genuine rule of law.
    Mr. Wolf. Well, on behalf of Senator Baucus and Congressman 
Bereuter, I want to thank you all very much for spending the 
morning with us today. This has been quite useful, and I think 
it is a significant contribution to the annual report that the 
Commission will be completing in October. Thanks again.
    [Whereupon, at 11:55 a.m., the hearing was concluded.]
                            A P P E N D I X


                          Prepared Statements


                 Prepared Statement of Jerome A. Cohen

                             july 26, 2002

                Challenges for Criminal Justice in China

    At a time when American criminal justice values are being 
challenged by a range of post-9/11 U.S. Government actions, I welcome 
the opportunity to discuss the plight of China's criminal defense 
lawyers, if only to assure their American counterparts that things in 
the United States could be a lot worse.
    Of course, lawyers in the People's Republic of China (``PRC'') have 
come a long way in the past quarter century since the end of the 
Cultural Revolution and the start of Deng Xiaoping's ``Open Policy.'' 
Formerly denounced as the worst type of ``stinking intellectuals'' and 
totally suppressed for over 20 years beginning with the 1957-58 
campaign against ``rightists,'' PRC lawyers--now almost 120,000 in 
number--are currently transforming themselves from Soviet-style ``state 
legal workers'' \1\ to increasingly recognized, prosperous and semi-
independent professionals. Many play an important role in business 
transactions that facilitate domestic economic development. A growing 
number promote the international trade, foreign investment and 
technology transfer that have spurred their nation's remarkable 
progress. Others foster the rights of women and children, and some even 
dare to protect the rights of workers. Although dismayed by the extent 
to which corruption, politics and personal influence affect--and often 
involve--their law practice, even when settling disputes before courts, 
China's lawyers, by and large, now lead an increasingly satisfying and 
attractive life. So attractive, indeed, that it has become difficult to 
recruit and retain top talent to serve as the country's 
underappreciated and underpaid judges, prosecutors, government legal 
experts and law professors. According to some recent social surveys, 
being a lawyer is now considered one of China's most favored career 
    \1\ The Interim Regulations of the People's Republic of China on 
Lawyers, article 1 (1980) (passed by the Standing Committee of the 
National People's Congress on Aug. 26, 1980).
    Criminal defense lawyers, however, are an exception. To be sure, 
some of them are well-compensated, and a few have become deservedly 
famous and admired. Yet even they have a daily diet of disillusionment 
and danger, and their situation is not improving, despite the hopes 
that in 1996 accompanied enactment of the Lawyers Law\2\ and revision 
of the Criminal Procedure Law (``CPL'').\3\ The following remarks, 
based upon conventional legal research as well as experience advising 
the American families of people detained in China, will suggest why.
    \2\ The Lawyers Law of the People's Republic of China was enacted 
by the National People's Congress Standing Committee on May 15, 1996.
    \3\ The Criminal Procedure Law of the People's Republic of China 
was promulgated on July 1, 1979 and revised on March 17, 1996.
                    1. obstacles to entering a case
    One of the major innovations of the 1996 CPL is the right it 
confers on a detained suspect, after the first interrogation by 
investigators or from the first day of detention, to select and meet a 
lawyer.\4\ In 1998 the revised CPL was authoritatively interpreted to 
confer on the family the right to select a lawyer on behalf of the 
suspect, so that a lawyer chosen by the suspect or his family is 
recognized as having a right to enter the case and meet with the 
suspect.\5\ These rights are not contingent upon the approval of the 
detaining authority, unless the case is determined to involve ``state 
secrets.'' \6\ Yet PRC police and prosecutors often deny lawyers access 
to their clients on far-fetched claims of ``state secrets.'' For 
example, in the 1999 case of detained Dickinson College librarian Song 
Yongyi, even after the prosecutor had rejected the State Security 
Bureau's application for a formal arrest warrant on a ``state secrets'' 
charge, the SSB continued to deny his lawyer an opportunity to meet 
    \4\ CPL, article 96.
    \5\ Supreme People's Court, Supreme People's Procuratorate, 
Ministry of Public Security, Ministry of State Security, Ministry of 
Justice and the National People's Congress Standing Committee Legal 
Affairs Working Committee: Provisions Concerning Several Issues in the 
Implementation of the Criminal Procedure Law, issued on January 19, 
1998, article 10.
    \6\ CPL, article 96.
    More often, the police simply do not transmit a detainee's request 
for a lawyer or delay or refuse access to a lawyer without giving any 
reason, as the Inner Mongolia Public Security Department did for months 
last year in the case of Connecticut resident Liu Yaping and as the 
Beijing Public Security Bureau did for weeks after the recent detention 
of well-known lawyer Zhang Jianzhong. If the frustrated criminal lawyer 
becomes too assertive in reciting the CPL provisions authorizing access 
to his client, the police seldom hesitate to demonstrate who is boss, 
especially outside the major cities. In the Liu case, which is a 
blatant use of the criminal process to settle a political struggle 
within the police itself, those in charge of the Inner Mongolia PSD, 
tired of listening to the arguments of local counsel about the PSD's 
illegal detention of Liu and its illegal denial of access to him, 
detained the lawyer as well. She was released 28 hours later, but only 
after ``agreeing'' to sign a false statement, and was so intimidated 
that she not only dropped the case but also said that she would give up 
the practice of law for some less hazardous occupation! When the 
suspect's family retained a former prosecutor from Beijing to take up 
the case, he too was detained by the PSD and released only after 
agreeing to board the next flight out and not return. And when one of 
the police officers handling the case mentioned the provisions of the 
CPL to the Party Secretary of the Inner Mongolia Communist Party 
Political-Legal Committee, which ``coordinates'' the work of police, 
prosecutors and courts, the Secretary, who was one of the two major 
combatants in the political struggle, reassured him by saying: ``I am 
the law in Inner Mongolia.''
    A more subtle technique frequently used by police and prosecutors 
to defeat a defense lawyer's entry into a case is simply to fail to 
comply with the requirement of the CPL that, within 24 hours of 
detaining someone, the detaining authority must notify the family or 
employer of the detainee of the detention,\7\ the reason therefore, the 
identity of the detaining authority and the place of detention.\8\ If 
questioned about their failure to issue the required notice, ``law 
enforcement officials''--an ironic name for those who so frequently 
violate their own nation's law--shamelessly exploit an exception to the 
CPL's notification requirement by claiming that notification would 
``interfere with their investigation.'' \9\ Yet in most cases the only 
reason that notification might ``interfere with the investigation'' is 
that it might lead the family or employer to retain counsel to meet the 
detainee in accordance with the CPL in order to explain the nature of 
the offense suspected, relevant procedures and the rights of the 
    \7\ CPL, article 64.
    \8\ Ibid.
    \9\ Ibid.
    It should be emphasized that the CPL does not require a lawyer to 
show the detaining authority a copy of the detention notice in order to 
get access to his client. Yet police and prosecutors frequently take 
this position, and defense lawyers themselves will often reluctantly 
tell a would-be client that they cannot even accept the case unless a 
copy of the detention notice is provided to them. This, of course, is a 
ludicrous situation, for it denies the family and employer of the 
detainee their legally guaranteed access to counsel at the outset of a 
case, a time when all they may know is that the suspect is missing and 
is probably in the custody of an unknown agency in an unknown place on 
an unknown charge. This is a crucial time when laymen urgently need the 
help of a criminal lawyer, who has the knowledge and contacts to enable 
them to find the detainee, so that the rights conferred by the CPL upon 
detainee, family, employer and defense counsel can all begin to be 
implemented. Moreover, if the detaining authority can defeat a lawyer's 
legally guaranteed entry into a case by failing to give the legally 
guaranteed detention notice, it has an added incentive to violate the 
CPL's notification requirements.
    This farce has recently been acted out in the case of the Boston-
based democracy activist Yang Jianli. On April 26, 2002, Yang, a PRC 
national and U.S. permanent resident with Ph.Ds from Harvard and 
Berkeley, after repeatedly being denied entry to his homeland and even 
to Hong Kong, was detained in China's Yunnan Province on suspicion of 
using someone else's passport to return to his country illegally. 
Although 3 months have passed, no detention notice has yet been 
received by his family, which has been frantically trying to obtain 
one, so that defense counsel can belatedly begin to assist him. This is 
surely not a case in which the detaining authority can claim that 
issuance of a detention notice might interfere with its investigation 
by revealing to others the fact of Yang's detention, since the case has 
been widely publicized abroad from day one and well-known in China via 
the internet, e-mail, fax, phone and travelers. Furthermore, on May 10, 
2002 the PRC Foreign Ministry, after inquiries from foreign journalists 
and the U.S. Government, admitted at a press conference that Yang was 
in custody, but it neglected to State in whose custody and where.
    Letters from Yang's American wife to the Ministry of Foreign 
Affairs, the Ministry of Public Security, the Ministry of National 
Security and their local agencies requesting notification of his 
detention have all gone unanswered, and, when she arrived at Beijing 
Airport in May in an effort to call upon relevant agencies, her visa 
was canceled and she was sent home on the plane that brought her. 
Yang's brother, who lives in Shandong Province and is a loyal Communist 
Party member, nevertheless believes that the police should follow the 
country's law. He has courageously persisted in vainly knocking on the 
doors of Beijing's various law enforcement agencies as well as its 
criminal law firms, and in talking to any journalist who will listen, 
despite increasing police pressures upon him. The sad fact is that 
lawyers seem unwilling to take on this politically sensitive case until 
a detention notice is received. Recently one lawyer reportedly agreed 
to enter the case but changed his mind by the time Yang's brother, 
whose phone is presumably tapped, reached his office.
    On July 12, 2002 the Ministry of Foreign Affairs, aware of the bad 
publicity generated by the illegal conduct of the police, informed the 
American Embassy in Beijing that Yang is being detained by the Beijing 
Public Security Bureau and predicted that a detention notice would soon 
be issued. Two weeks later, the family is still waiting.
    Another frequently used technique to keep lawyers out of the 
detention/investigation process is for police or prosecutors to pretend 
that the suspect is not really detained but merely being accommodated--
forcibly to be sure--at a ``guest house'' run by the detaining agency. 
Sometimes, as in a current case I am not at liberty to identify, the 
family is informally told who the detaining authority is (in this case 
the local branch of the State Security Bureau) and vaguely what the 
investigation is about (student sexual activities) and the family is 
even required to pay 100 RMB (roughly US$12) a day for room and board, 
which really adds insult to injury! Since the case has not yet become a 
formal criminal matter, and might not become one, the family has been 
advised against legalizing the situation by retaining a lawyer.
    American University scholar Gao Zhan and her husband were secretly 
confined in separate ``safe houses'' by the State Security Bureau for 3 
weeks before pressure from the American Embassy caused the PRC 
government to admit they were in detention. Similar techniques are even 
used on Party members, who can be summoned by the local Party 
discipline and inspection committee for investigation of matters that 
later become criminal. The procedure is called shuanggui and can result 
in a long period of incommunicado detention. And, of course, when 
ordinary people are detained pending determination whether they should 
receive the administrative punishment of ``reeducation through labor,'' 
which can result in 3 years in a labor camp, no detention notice need 
be issued if the police regard the case as certain to result in this 
``non-criminal'' punishment rather than a formal criminal sanction.\10\
    \10\ According to the Implementation Regulations of the Ministry of 
Public Security Concerning Reeducation through Labor, issued on January 
21, 1982, although the decision to impose the sanction of ``reeducation 
through labor'' on someone should be announced to his family, there is 
no requirement to notify the family of his initial detention. See 
article 12 of the Implementation Regulations.
    In some cases defense lawyers are forbidden or informally 
discouraged from assisting a detainee by the local bureau of the 
Ministry of Justice. Local justice bureaus used to exercise control 
over defense lawyers' conduct in all cases. In recent years, after the 
1996 promulgation of the Lawyers Law and the revised CPL, they have 
relaxed their grip in most cases. Yet old habits die hard, and in some 
parts of China rules issued by local justice bureaus restrict defense 
lawyers to varying extents in certain types of cases. In Beijing, for 
example, according to rules issued in early 1999,\11\ without the 
advance approval of the Leading Group established by the Municipal 
Justice Bureau, no defense lawyer may accept a case that involves 
``state security,'' foreigners or ``critical social influences.''\12\ A 
special notice issued 6 months later, after the onset of the continuing 
campaign to suppress the Falungong, makes clear that cases against 
Falungong followers are deemed to involve ``critical social 
influences.''\13\ This continuing control by the Beijing Judicial 
Bureau over the entry of lawyers into politically sensitive cases may 
be the reason why Beijing lawyers have refused to enter the Yang Jianli 
case until shown a copy of his detention notice. They may be tacitly 
complying with a condition imposed by their masters.
    \11\ The Rules of Beijing Municipal Justice Department on Reporting 
Major Legal Matters by Beijing Law Offices, JING SI FA No. 7 (1999).
    \12\ Ibid, article 4(a).
    \13\ Notice of Beijing Municipal Justice Department Concerning 
Reporting Legal Advice to and Representation of Falungong Followers, a 
document widely circulated in the internet, which was reportedly issued 
on July 29, 1999.
              2. obstacles during the investigation stage
    The 1996 CPL and other laws authorize lawyers to perform two 
different functions in the criminal process. During the investigation 
stage they may offer legal counseling (falu zixun). During the 
prosecution and trial stages, they may offer defense representation 
(daili bianhu). The differences between the two functions are 
    In view of the extreme difficulties that lawyers confront in 
entering the investigation stage, one might think that those who manage 
to do so might then be allowed to render substantial service. 
Unfortunately, the revised CPL, while for the first time granting 
lawyers access to detainees during investigation, nevertheless severely 
restricts what they can do. At this stage, which usually lasts for many 
months and sometimes even years, the lawyers may merely ``offer legal 
advice'' and file a complaint or petition on behalf of the suspect. If 
the suspect has been formally arrested, the lawyer may also apply for 
``release under guarantee pending trial.'' The lawyer also has the 
right to ask the investigating agency about the nature of the alleged 
offense and to interview the suspect to understand the circumstances of 
the case. However, the revised CPL ominously provides: ``Depending on 
the circumstances and necessities of the case, personnel from the 
investigating agency may be present during the lawyer's interview with 
the criminal suspect.''\14\
    \14\ CPL, article 96.
    Police and prosecutors have applied these provisions in ways that 
minimize the opportunities for a lawyer to affect their investigation. 
In practice, lawyers are generally allowed only one brief meeting with 
the detainee at this stage. Usually these meetings are closely 
monitored, and sometimes recorded, by investigators, so that 
confidential communication is impossible. Lawyers are frequently not 
allowed to ask their clients detailed questions about the case. When, 
for example, a lawyer was finally permitted to meet American citizen 
Fong Fuming last year, after he had been in detention on bribery and 
``state secrets'' charges for almost a year and after the investigation 
was virtually concluded, no detailed discussion of his case proved 
possible, and counsel and client were required to talk through a glass 
partition by means of microphones that broadcasted their every word to 
the nearby guards.
    During the lengthy investigation period, lawyers are definitely not 
permitted to undertake their own inquiry into the case--no interviewing 
of witnesses, no collecting of other evidence, not even discussion with 
the detaining authority about the inadequacy of its evidence. The 
complaints or petitions that lawyers are authorized to file with 
investigating authorities usually fall upon deaf ears, even if based 
upon clear violations of the CPL's procedures. Although police 
sometimes grant ``release under guarantee pending trial'' for their own 
convenience, lawyers' requests for such release are rarely granted.
    Yet there is nowhere else to go for a hearing concerning 
investigators' arbitrary actions, including torture. Although the 
prosecutor's office is supposed to serve as the ``watchdog of 
legality'' and protest the misconduct of not only the police but also 
other prosecutors, it seldom offers relief, and it frequently is 
difficult for lawyers even to obtain meetings with prosecutors or 
higher police officials in order to challenge investigators' 
violations. China lacks any proceeding similar to habeas corpus, so 
lawyers who try to persuade a court to hear a detainee's grievance are 
told that courts have no jurisdiction until after indictment, and the 
local judicial bureau will also disclaim authority. Nor will a lawyer 
without powerful connections find assistance at any level of people's 
Congress or the Party political-legal committee that coordinates the 
government law enforcement agencies or the Party discipline and 
inspection committee that deals with misconduct by Party members. In 
rare cases the Chinese press reveals egregious police misconduct, but 
lawyers attuned to a government that suppresses political freedoms 
seldom risk contact with journalists.
    In China, as elsewhere, the investigation stage is the most crucial 
phase of the criminal process. In the PRC, in law and even more so in 
practice, it is heavily weighted against the suspect, so that even the 
ablest defense lawyers find the system to be an exercise in 
              3. limited role during the indictment stage
    Under the revised CPL, defense counsel are supposed to come into 
their own once the government investigation concludes and the case is 
sent to the prosecutors' office together with a report recommending 
indictment. Prior to the 1996 reforms, defense lawyers were not even 
admitted to a case at this stage but had to wait until it had reached 
the court following indictment. The revised CPL requires the 
prosecutors' office, within 3 days of reviewing the case file, to 
inform the suspect of his right to ask a lawyer to defend him.\15\ In 
principle, the lawyer, now formally referred to as ``defense lawyer,'' 
has a right to conduct his own investigation of the case and to read, 
excerpt and reproduce ``litigation documents and technical materials'' 
in the file, as well as to meet and correspond with the suspect in 
custody.\16\ The lawyer also has a right to present his views on the 
evidence and applicable law to the reviewing prosecutor before the 
decision is made concerning indictment.\17\
    \15\ CPL, article 33.
    \16\ CPL, article 36.
    \17\ CPL, article 139.
    Unfortunately, the provisions of the revised CPL that detail the 
newly granted rights of the defense lawyer at this stage lend 
themselves to frustration of those rights. The revised CPL fails to 
define the scope of the ``litigation documents'' in the file to which 
the prosecutor must grant access, and it affirmatively restricts 
defense counsel's prospects for independently gathering evidence. The 
law provides that defense counsel may only collect materials concerning 
the case from witnesses or other persons or organizations with their 
consent, and may only obtain materials relating to the case that are in 
possession of ``the victim, the victim's close relatives and witnesses 
proposed by the victim'' with the consent of the victim and the 
approval of the prosecutors' office.\18\
    \18\ CPL, article 37.
    Not surprisingly, these detailed provisions governing the defense 
lawyer's pre-indictment role have been applied in ways that severely 
limit the possibility of mounting an effective defense. Although some 
scholars hoped that the ``litigation documents'' that the prosecution 
is required to show defense counsel would include documentary evidence, 
physical evidence and the records of statements made by witnesses, the 
victim and the suspect himself during the investigation stage, as well 
as other evidence available to the prosecution, the term has been 
construed narrowly by the nation's chief prosecutor's office, the 
Supreme People's Procuracy (``SPP''), to exclude all such material.\19\ 
Prosecutors are required to grant access merely to the formal documents 
in the file, such as copies of the detention and arrest notices. In 
practice prosecutors have proved even stricter in withholding relevant 
documents. Even the investigators' summary of the case and 
recommendation to indict, a most important formal document, is not 
usually revealed, although the SPP's interpretation requires it to 
be.\20\ Of course defense counsel ``may apply'' to see the evidence in 
the file and even to ask the prosecutors to help collect additional 
evidence for the defense,\21\ but such requests seldom yield a positive 
    \19\ Supreme People's Procuratorate: Rules on the Criminal Process 
for People's Procuratorates, issued on December 16, 1998, article 319.
    \20\ Ibid.
    \21\ CPL, article 37.
    Moreover, defense counsel, lacking the power and prestige of police 
and prosecutors, find it very difficult to obtain the consent and 
cooperation of witnesses, of victims and their families and of other 
people and organizations. Despite the fact that witnesses do not 
usually appear in person to testify in criminal trials in China, they 
do not even wish to be interviewed, and lawyers have no way to make 
them cooperate. Thus the belated right of the defense lawyer to conduct 
an investigation often turns out to be a sham.
    These restrictions plainly limit the ability of the defense lawyer 
to persuade the prosecution not to issue an indictment or to indict for 
fewer or lesser offenses. There is no way the defense lawyer can know 
the case as well as the prosecution, especially in view of the fact 
that the indictment stage is usually brief, unlike the investigation 
stage, and prosecutors often place little stock in the defense lawyer's 
views. In any event it is frequently difficult for defense lawyers even 
to arrange a meeting with the responsible prosecutors in order to 
discuss the matter. These realities help to explain the fact that, year 
in year out, prosecutors approve over 98 percent of investigators' 
requests for indictment.\22\
    \22\ Human Rights in China: Empty Promises-Human Rights Protections 
and China's Criminal Procedure Law (hereafter ``HRIC Report''), New 
York, March 2001, at 24.
    Plea bargaining is neither authorized nor practiced in the PRC, at 
least in principle. Of course, during the investigation stage 
interrogators frequently bargain with the suspect, offering ``leniency 
for those who confess and severity for those who resist,'' and in some 
cases defense lawyers do have an opportunity to exchange ideas with 
prosecutors about their case, and perhaps even negotiate after a 
fashion. Indeed, in some of the PRC criminal cases in which I have 
advised, our Chinese defense counsel surely conducted conversations 
with prosecutors, sometimes at my suggestion. They did not feel free to 
inform me of the occurrence or content of certain other meetings with 
prosecutors. The latter experience led me to believe that in sensitive 
cases defense counsel may not be free agents.
    That defense lawyers in important cases are often not independent 
is confirmed by the 1999 Rules of the Beijing Municipal Justice Bureau 
to which I previously referred.\23\ This is true not only in those 
cases for which approval of the Bureau's Leading Group is required for 
entry into a case, but also in a broad variety of other major cases. 
The Rules grant the Leading Group the power ``to listen to the requests 
and reports of law firms in major cases'' (written reports that the 
firms are required to make at every stage of the case),\24\ ``to decide 
the principles for handling major cases and to coordinate the work 
connections between lawyers and relevant agencies.''\25\ If a written 
report causes the Leading Group to believe that a meeting is necessary 
with the lawyer handling the case, it can summon him to ``report 
relevant circumstances,'' which include ``the tactics adopted by the 
lawyer for handling the case as well as the issues that need to be 
discussed.''\26\ The Rules conclude by stating: ``The lawyer handling 
the case must prepare his tactics in accordance with the decision made 
by the Leading Group after its discussion.''\27\ If circumstances 
subsequently change, the lawyer is authorized to revise his defense 
arguments in accordance with the new situation but must report the 
details to the Leading Group.\28\ It would be surprising if the rules 
of at least some other local judicial bureaus were very different in 
this respect.
    \23\ Supra note 11.
    \24\ Ibid, article 2.
    \25\ Ibid.
    \26\ Ibid, article 6.
    \27\ Ibid, article 7.
    \28\ Ibid.
                       4. trials and tribulations
    The frustrations of defense counsel do not diminish following 
indictment. The revised CPL purported to transform the criminal trial 
into a meaningful experience by precluding the court, prior to the 
judicial hearing, from reaching its judgment on the basis of the file 
submitted by the prosecution. In order to implement this objective the 
revised CPL eliminated the previous practice whereby the prosecution 
submitted its entire file to the court along with the indictment. 
Instead, it required only that the prosecution submit a list of the 
evidence and witnesses to be presented at the trial together with 
copies of ``major evidence'' and the litigation and technical documents 
to which defense counsel had access at the indictment stage.\29\ This 
has meant that defense counsel, instead of gaining access to the whole 
file prior to trial, as in pre-1996 practice, now has the benefit of 
merely the skeletal prosecution file called for by the revised CPL, 
which again is narrowly construed by prosecutors in practice. Thus, in 
preparing for trial, defense lawyers have much less knowledge about the 
nature of the prosecution case and much less material to work with than 
under the old procedure, and this hinders their preparation greatly.
    \29\ CPL, article 150.
    Nor does the revised trial procedure enhance the ability of defense 
counsel to gather evidence on their own. Indeed, it constitutes another 
setback.\30\ Prior to 1996, although the old CPL was silent on this 
question, both the national interim regulation on lawyers and some 
local regulations emphasized the right of defense counsel to 
investigate and collect evidence and the obligations of witnesses and 
other relevant people and institutions to cooperate with those efforts. 
The revised CPL, as the provisions cited in the previous section make 
clear, virtually invites witnesses and others to reject the requests of 
defense counsel, who have no power to compel their cooperation. 
Although the new law provides that defense lawyers may apply for a 
court order to collect essential evidence on behalf of the defense,\31\ 
such applications tend to be as unsuccessful as similar requests made 
to the prosecutors' office, and there is no way to obtain review of 
such rejections. Moreover, the orders of Chinese courts are ignored to 
a shocking extent due to the absence of both appropriate punishments 
for contempt of those orders and an effective judicial enforcement 
    \30\ HRIC report, Chapter III. supra note 19.
    \31\ CPL, article 37.
    Denied the opportunity to learn the prosecutor's case in advance of 
trial and restricted in his ability to build his own case prior to 
trial, defense counsel, to the extent allowed by the judicial bureau, 
should at least be able to rely on the opportunity to puncture the 
prosecution's case at the trial. In China, as elsewhere, often the best 
way to demolish the factual allegations underlying the indictment is 
for defense counsel to cross-examine the prosecution's witnesses. Yet, 
prior to 1996, witnesses were not required to appear in court. One of 
the most well-known reforms of the revised CPL,\32\ at least as its 
somewhat ambiguous language was clarified by Supreme Court 
interpretation,\33\ is the requirement that generally witnesses must 
testify in court, rather than have their pre-trial statements read out 
during the trial, and that the opposing lawyers, as well as the judges, 
must have the right to cross-examine the witnesses. In view of the 
previous practice, this was a change of potentially historic 
    \32\ CPL, article 47.
    \33\ Supreme People's Court: Interpretation on Several Issues 
Regarding Implementation of the PRC CPL, enacted on June 28, 1998, 
article 141.
    The problem is that this requirement has remained a dead letter. 
Except in a tiny percentage of cases, witnesses still do not appear in 
Chinese criminal courts. No one disputes that. The only debate is over 
whether, nationwide, as few as 1 percent or as many as 10 percent of 
the trials might be graced by the presence of even a single witness. So 
much for the right of cross-examination! Defense counsel inevitably 
confront difficulty in challenging the records of statements made 
outside their presence to police and prosecutors, although, as with 
physical and documentary materials, they seek to demonstrate 
discrepancies and other reasons to doubt the evidence.
    Many other basic evidentiary challenges confront PRC trial lawyers. 
Is there a presumption of the defendant's innocence? If a confession or 
other evidence was illegally obtained, should it be excluded from 
evidence? What are the elements of proof required for conviction of 
various offenses and what standard of guilt should be applied by the 
court? Literally, scores of serious evidentiary issues arise, and many 
Chinese prosecutors and judges--and many defense lawyers--are ill-
equipped to deal with them, especially in the absence of detailed 
legislative guidance.
    It is often difficult for informed foreign observers to gain access 
to PRC criminal trials, especially since many important trials are 
still effectively closed, even to the Chinese public, contrary to 
constitutional and legislative prescriptions that generally require 
public trials. My impression from studying criminal court judgments, 
however, is that Chinese judges often do not address or respond in a 
reasoned manner to many of the factual and legal arguments presented by 
defense counsel. Although the Supreme Court has instructed the courts 
to State the reasons for their judgments, their decisions are often 
cloaked in cursory generalities.
    In this year's Fong Fuming case, for example, many questions of law 
and evidence went unanswered. What are the elements that must be proved 
to make out a ``bribery'' conviction? Did ``extortion'' occur and, if 
so, should it have vitiated a ``bribery'' charge? Was the court correct 
to exclude proffered evidence that the alleged extorter had also sought 
to extort other businessmen? On what basis could the court conclude 
that commercial documents found in Fong's laptop were ``state secrets? 
'' Should defense counsel and defendant have been allowed to read the 
documents in question in order to be able to rebut the charge? Did the 
prosecutors and judges themselves have an opportunity to read those 
documents or were they simply required to accept the decision of the 
national State Secrets Bureau? Did an opinion of the State Secrets 
Bureau accompany its decision and, if so, should the defense have been 
allowed an opportunity to review it, if not the documents themselves?
    Similar questions relating to ``state secrets'' arose, but were not 
adequately addressed, in the 2001 prosecutions of scholars Li Shaomin 
and Gao Zhan on charges of spying for Taiwan. What was the basis for 
classifying the internal essays and analyses involved as ``state 
secrets,'' and did the accused have the knowledge and intent required 
for conviction?
    Political trials, of course, subject defense lawyers to their 
gravest challenges, particularly trials such as those that followed the 
Tiananmen tragedy of June 4, 1989 or that have dealt with efforts to 
organize independent political or Falungong activities. The lawyer for 
Muslim activist Rebiya Kadeer was reportedly not even allowed to speak 
at her 1999 trial.\34\ Judges in such trials generally keep defendants 
and their lawyers on a very short tether, as demonstrated by the 1998 
prosecution of famed democracy advocate Xu Wenli for helping to 
establish the China Democratic Party. They frequently interrupt and 
even shout down efforts to refute the underlying basis for allegations 
such as ``endangering State security'' by acting with ``intent to 
subvert State power,'' for which Xu received a thirteen-year prison 
sentence. The Xu trial, like that of Li Shaomin, Gao Zhan and many 
others, was concluded in half-a day!
    \34\ World Brief, Detroit News, March 12, 2000, at 9.
    Although able defense counsel can sometimes utilize the right of 
appeal to obtain a more considered review of a deserving case, 
convicted defendants, who remain in police detention pending conclusion 
of their case, are often persuaded not to appeal by their jailers, 
their family or even their lawyers. If the defendant hopes for release 
prior to completion of his sentence, the lawyer may be concerned that 
appeal may be interpreted as a sign of the defendant's obstinacy and 
lead to longer prison time. Moreover, knowing that trial courts 
frequently clear their decisions with the relevant appellate court 
before pronouncing judgment, the lawyer may well believe that pursuing 
an appeal would be throwing good money after bad. Yet, especially in 
cases involving complex business transactions, certain lawyers have 
developed the expertise and reputation for waging an impressive defense 
at the appellate level and sometimes winning a reduced sentence, a 
retrial or acquittal on certain of the charges. However, in a country 
where the final conviction rate is over 98 percent, defense counsels do 
not harbor illusions.
    Less can be done after a conviction has become legally effective. 
Defense lawyers even have difficulty arranging a meeting with their 
client after the time for appeal has expired or the appellate court has 
confirmed the judgment below. Yet one advantage of China's notoriously 
flexible criminal procedure is that, in cases of gross injustice or 
where important evidence is newly discovered, the defense lawyer may be 
able to find a post-conviction remedy by resort to ``adjudication 
    \35\For detailed rules, see CPL, articles 203-207.
    It is possible that the Criminal Evidence Law that is currently 
being drafted by respected Chinese specialists inside and outside PRC 
government circles will improve the plight of defense lawyers in many 
respects, not only at the trial stage but also from the very beginning 
of the criminal process. Contrary to its title, the new legislation, 
which might be adopted within a few years, will probably not be 
strictly limited to matters of evidence but will touch upon many 
aspects of criminal procedure. Since the revised CPL is unlikely to be 
revised again in the near future, the Criminal Evidence Law will be of 
profound importance to the administration of criminal justice in China. 
If it closely resembles the comprehensive and impressive Expert Draft 
being prepared by a group of China's leading academic specialists, and 
if the new law should actually be implemented, the work of China's 
defense lawyers will become somewhat less depressing.
                        5. the sword of damocles
    Yet a new Evidence Law will do nothing to reduce the professional 
and personal risks that Chinese defense lawyers confront every day. I 
have already mentioned instances of police intimidation of lawyers who 
seek legally guaranteed access to detained suspects and the more covert 
controls exercised by local judicial bureaus. Failure to follow the 
instructions of a judicial bureau, which regulates the local practice 
of law, can lead to loss of benefits and to administrative sanctions 
that include suspension of the lawyer's professional license and even 
closing of his law firm. Thus, not only the livelihood of the defense 
lawyer is at stake but also that of his colleagues, which is 
undoubtedly why some judicial bureaus require a would-be defender to 
discuss whether and how to deal with a criminal representation with the 
other lawyers in his firm before deciding on a course of action.\36\
    \36\ See, e.g., The Several Provisions of Anhui Province on Law 
Practice issued by the Standing Committee of the People's Congress of 
Anhui Province, on March 26, 1999. Article 28 states that ``the 
decision to defend a defendant on the basis of a not guilty plea should 
be discussed collectively within the law firm to which the defense 
lawyer belongs.''
    Defense lawyers whose efforts offend police, prosecutors or other 
power-holders also run the risk that, in retaliation, criminal 
prosecution may be initiated against them. Tax evasion has proved a 
readily available pretext for prosecution in a country where tax law 
and administration are in need of serious reform and non-compliance is 
rife. Corruption is another favorite. Lawyers who work for state-owned 
law firms have been convicted of embezzlement of public funds, and in a 
culture where, despite legislative prohibitions, lawyers are still 
expected to wine and dine judges, and where bribery is a huge problem, 
lawyers are easy targets for selective prosecution. They have also 
sometimes been convicted of criminal defamation for revealing official 
misconduct, and a lawyer in Hunan Province was recently sentenced to 1 
year in prison for leaking ``state secrets.'' Her only offense was to 
allow the family of her client to see the court file in the case she 
was defending.\37\
    \37\ Yu Ping: ``Glittery Promise vs. Dismal Reality: The Role of a 
Criminal Lawyer in the People's Republic of China after the 1996 
Revision of the Criminal Procedure Law,'' Vanderbilt Journal of 
Translational Law, May 2002, at 858-859.
    The gravest threat to the personal security of defense lawyers 
comes from Article 306 of the Criminal Code, which specifically targets 
lawyers who ``induce'' or ``force'' their clients or witnesses to 
change their testimony, forge statements or commit perjury. Any lawyer 
who advises his client to repudiate at trial a confession that may have 
been coerced during the investigation stage risks of an Article 306 
prosecution, and, although this provision only became law in 1997, 
dozens of lawyers have reportedly been investigated and prosecuted 
under it. This is why lawyers openly call Article 306 the ``sword of 
Damocles'' and why conferences sponsored by the All China Lawyers 
Association have expressed great concern about it as well as other 
forms of intimidation.
    The May 3, 2002 detention and subsequent arrest of Zhang Jianzhong, 
managing partner of one of China's leading law firms and head of the 
Beijing Lawyers Association's committee for protecting lawyers, has had 
a chilling effect on the criminal defense bar. Mr. Zhang, in addition 
to maintaining a flourishing business practice, has represented some 
high-profile defendants in major corruption cases. It is feared that 
his current investigation and virtually incommunicado confinement for 
alleged violation of Article 306--for allegedly providing a false 
statement in a commercial transaction, an offense that in China would 
not normally warrant such severe treatment--may be another instance of 
selective prosecution in retaliation for offending a prominent 
political figure through vigorous criminal defense work.
                   6. conclusion and recommendations
    In these circumstances, is it any wonder that China's lawyers are 
reluctant to take on criminal cases? Yet, nationwide, defense lawyers 
probably appear in merely one-third of the cases brought to trial, and, 
even in cities where economic and educational standards are relatively 
high, many defendants go without counsel. In one Eastern city, for 
example, recent representation rates at basic level trials ranged from 
less than 18 percent in one court to roughly 90 percent in another, 
with the representation rate in most courts falling below 50 
    \38\ Interviews with judges in China, on file with the author.
    The plight of China's criminal defense lawyers is appalling, and 
the country's entire criminal process is in need of radical reform. The 
people of China deserve far better. Moreover, now that the PRC is in 
the WTO, is preparing to host the 2008 Olympics and welcomes millions 
of foreigners to its shores every year for tourism, business, 
educational and cultural exchange and many other purposes, it is time 
for a new generation of Chinese leaders to make a genuine ``great leap 
forward'' in the direction of meeting international minimum standards 
for the administration of criminal justice. The legitimacy of the 
Chinese Government at home and abroad is at stake. Significant 
improvements in China's justice will yield corresponding improvements 
in its international relations and reputation for safeguarding human 
rights and the rights of all foreigners who enter the country. The 
current Lai Changxing case, in which the PRC has been struggling for 
over a year to secure the return from Canada for trial in China of 
allegedly the greatest smuggler in China's history, vividly illustrates 
the extent to which Chinese justice itself can be put on trial abroad 
in an increasingly interdependent world.\39\
    \39\ On May 6, 2002 a panel of the Refugee Division of Canada's 
Immigration and Refugee Board, after hearing testimony for forty-five 
days over a 5-month period and after 6 months of subsequent 
deliberation, rejected the claim of Mr. Lai and his family to be 
considered political refugees, rather than criminal fugitives, from 
China. Much of the hearing and the reasons cited by the panel in 
support of its decision analyzed the administration of criminal justice 
in China. The case is currently being appealed to the Canadian courts.
    I cannot discuss in these remarks the radical, long-run political-
legal restructuring that would be necessary in order to bring the PRC's 
criminal process into compliance with minimum international standards 
or even all the changes required in legislation and practice 
significantly to ease the plight of its defense lawyers. Many of the 
measures that ought to be adopted are implicit in my earlier comments 
and in any event are, of course, for China to decide.
    I will conclude by merely suggesting several steps that can be 
taken now by others, including those of us in the United States, in and 
out of government, who wish to be useful in this area.

    (1) We should promote opportunities to cooperate with PRC defense 
lawyers through professional and academic conferences, workshops, study 
groups and training programs. Although China's criminal lawyers are not 
generally fluent in English or other foreign languages, as PRC business 
lawyers increasingly are, many have an intense interest in comparative 
criminal law and procedure and the situation of their counterparts in 
other countries. Many subjects can fruitfully be discussed. For 
example, might some form of plea bargaining be useful to China, thereby 
freeing court resources to provide better trials for the minority of 
genuinely contested cases? Would the process of sorting out contested 
cases from others be facilitated by establishing fair procedures for 
pre-trial discovery of evidence? Would some type of habeas corpus 
proceeding or criminal ombudsman be suitable for China?
    Defense lawyers also confront difficult questions of legal ethics 
and might welcome exchanges regarding a number of problems. One topic 
worthy of exploration is the propriety of contingent fees for criminal 
defense lawyers. It is not unknown in China for a defense lawyer, in 
addition to charging a substantial retainer for his time, to arrange to 
be paid a very large fee, even by American standards, if successful in 
gaining acquittal, reversal of the judgment below or a designated 
reduction in sentence. The incentive to corruption provided by such an 
arrangement is obvious.
    (2) Enhanced cooperation with Chinese lawyers of the kinds 
suggested above will need to be supported by scholarly research of a 
comparative nature. Here is an important role for academic institutions 
in China, the United States and other countries. China's leaders and 
legal officials are increasingly aware of the value of accurate 
knowledge of how their own legal system and that of other countries 
perform, and they have recently welcomed a range of cooperative 
activities in law. Opportunities even for joint legal research between 
PRC and foreign scholars may be expanding.
    (3) This scholarly research and the cooperation of defense lawyers 
that it is designed to support will require significantly increased 
funding from public international organizations, governments including 
our own and China's .and charitable foundations. We should seize the 
moment, as Chairman Mao once said, but for a purpose that he could not 
have foreseen.

                Prepared Statement of Murray Scot Tanner

                             july 26, 2002

Torture in China: Calls for Reform From Within China's Law Enforcement 

    I would like to begin by expressing my sincere thanks to the 
Members of the Congressional-Executive Commission on China for 
honouring me by with this invitation. I would also like to thank the 
Commission staff, in particular Dr. Susan Roosevelt Weld, for their 
kind help in inviting me and arranging my visit to the Commission.
    \1\ This presentation includes sections revised and adapted from 
Murray Scot Tanner, ``Shackling the Coercive State: China's Ambivalent 
Struggle Against Torture,'' Problems of Post-Communism, Sept-Oct, 2000.
    The purpose of my testimony today is to focus some attention on the 
battle within China's law enforcement community to confront the 
widespread and horrific use of torture--especially tortured 
confessions--within the criminal justice system. The prevalence of 
torture has been carefully documented by international human rights 
monitoring organizations--such as Amnesty International, Human Rights 
Watch, the Lawyer's Committee on Human Rights--as well as by our own 
State Department and the U.N. Human Rights Commission. Members of this 
Commission have heard testimony on this terrific problem from 
representatives of many of these organizations, and I as an individual 
analyst can add little to their excellent work.
    Instead, my testimony today draws on my studies of China's police 
and internal security system to focus on an important and unusual 
aspect of China's torture problem: for the past half-dozen years, a 
growing number of officials and scholars within China's law enforcement 
system--even many affiliated with China's police ministry (the Ministry 
of Public Security--``MPS'') and its national prosecutors office (The 
Supreme People's Procuratorate--``SPP'')--have begun criticizing 
China's pervasive torture problem with increasing bluntness. A few 
years ago, some officials within the procuracy for the first time 
publicized official statistics on cases of torture--even death by 
torture. Experts privately stress that these official numbers still 
greatly understate the prevalence of torture. At the same time, these 
figures and other characterizations clearly concede a pervasive, 
systemic, problem, and they mark a significant advance in the halting, 
ambivalent struggle against torture in China. These law enforcement 
officials and scholars are also openly debating policy reforms designed 
to control torture--in particular they are pushing for what I would 
call ``professionalizing'' reforms of China's law enforcement system, 
as well as revisions to China's criminal procedure laws which they 
believe will create disincentives for officials to commit torture--
legal revisions that, in many cases, draw explicitly on U.S. and 
Western criminal procedure law. It is impossible to say for certain how 
numerous these officials and analysts are, and difficult to evaluate 
their policy influence.
    I cannot stress strongly enough that my purpose here today is not 
to argue the brief that either China's top leadership or its law 
enforcement system are making adequate progress on dealing with 
torture--emphatically, they are not. Nor am I here to argue that this 
anti-torture cadre of officials and analysts is strong enough for us to 
hope that this system can reform itself without a major system overhaul 
and increased pressure from Chinese society and the international 
    Instead, my purpose is to discuss these important policy debates 
and efforts at legal reform within China that I believe are important 
to those who must determine U.S. human rights and legal policy toward 
China. A careful review of such reform debates can help U.S. 
policymakers evaluate the initial signs of progress on the problem of 
torture, the sources of current or future progress, and also the 
limitations on such progress. Such analysis can also shed light on the 
degree to which U.S. human rights policies and legal exchanges may be 
having a positive impact in China.
    As we evaluate the importance and limitations of such policy 
battles over legal reform, we have to confront the painful distinction 
between the kinds of significant improvements that may be possible 
within China's current authoritarian system, and the more fundamental 
improvements that must, unfortunately, await a fundamental 
liberalization and democratization of that system. In my opinion there 
is no question that the core of China's torture problem lies in her 
authoritarian political system, and fundamental improvement of the 
torture problem will be impossible before China liberalizes and 
democratizes. A perusal of international human rights reports, however, 
makes clear that there can be significant differences in levels of 
torture, law enforcement abuses, and police professionalism even among 
authoritarian systems. Nevertheless, their fundamental shortcoming 
compared with democratic systems is that authoritarian systems lack 
self-generating or self-sustaining social and political institutions to 
fight torture--most importantly a free, competitive, aggressively 
investigatory press, citizen-based human rights monitoring 
organizations, independent, fair and accessible courts and prosecutors, 
and multi-party elections as an implicit threat to unresponsive 
leaders. Authoritarian systems such as China cannot even make 
significant progress against torture unless their top leaderships 
undertake sustained, detailed monitoring and punishment of local law 
enforcement who commit the crime. In many authoritarian countries--in 
particular China--the leadership's commitment to fighting torture is, 
at best, instrumental and sporadic rather than fundamental and 
enduring. Thus, when competing political demands cause top-level 
pressure and monitoring to slacken, torture inevitably reasserts 
    We cannot expect fundamental, self-generating and self-sustaining 
progress on torture in China until China constructs the package of 
liberal-democratic social, political, and legal institutions to 
oversee, expose, and compel the punishment of torturers. But even 
without waiting for, or weakening our commitment to, full 
democratization, Western countries can and must expect, promote and 
support significant improvement in China's torture record through 
reform of the existing system. Studies of torture in many societies, 
including China, demonstrate clearly that torture is also greatly 
exacerbated by a severe lack of law enforcement professionalism--
including compliant judges lacking even rudimentary commitment to rule 
by law and legal procedure, rules of evidence that create incentives 
for interrogators to obtain tortured confessions, and weakly trained 
police and prosecutors who lack the professional ability to solve non-
political criminal cases using legally gathered evidence. Such 
rudimentary problems of unprofessionalism are, at least in part, 
distinguishable from whether the system is democratic or non-
democratic. Sadly, the continued disturbing human rights records in 
such fledgling democracies as Russia, Brazil, South Africa, Indonesia, 
and elsewhere demonstrate that where law enforcement organs suffer from 
severe unprofessionalism, not even democratization and freedom of the 
press can alleviate torture and other abuses--at least not for a very 
long time. Fighting torture is a long-term struggle that must be fought 
out on many fronts.
    Therefore, I believe that recent calls from within China's legal 
and law enforcement communities for reining-in torture can best be 
understood against the backdrop of a top leadership--Jiang Zemin's 
leadership--whose efforts to deal with torture and legal abuses have at 
best been sporadic, irregular, instrumental, and marked by profound 
ambivalence.\2\ Under Jiang, the leadership has ordered occasional 
short-lived crackdowns on police abuses,\3\ but only as one part of a 
broader strategy to use ``rule by law'' to revive its threatened 
legitimacy, stabilize its authoritarian regime, and drive a wedge 
between average citizens and the politically active. Jiang's leadership 
is offering citizens a legal bargain to ``demobilize'' them politically 
saying, in effect, that if the vast majority of citizens stay out of 
politics, eschew officially ``suspect'' religious groups, and do not 
commit crime, the Party and government will try to guarantee them an 
orderly, relatively low crime society coupled with gradually expanding 
legal protection against abuses by law enforcement officials. Jiang and 
his allies are, in effect, gambling that moderate legal reforms can 
prolong the current regime, and will not instead become a stepping 
stone toward expanded notions of political and legal rights and 
    \2\ In its most recent report on torture in China, Amnesty 
International described these leadership efforts as betraying an 
attitude of ``indifference,'' and I would not dispute that 
    \3\ Perhaps the most prominent such crackdown on torture, abuses, 
and corruption within law enforcement organs occurred between late 1997 
and Fall 1998, as part of the so-called ``Education and Rectification'' 
    But such a social bargain is fraught with political dilemmas. 
First, most reforms that could help establish ``self-sustaining'' 
institutional checks on torture risk undermining the Party's hold on 
power and its control over law enforcement and the press. Second, any 
serious effort to rein in torture risks undermining the capacity of 
police and prosecutors to fight crime and maintain adequate ``law and 
order''--the other cornerstone of the ``rule by law'' legitimacy 
strategy. As in other authoritarian systems, decades of being protected 
by an undemocratic government have rendered China's law enforcement 
departments, quite simply, rather weak in modern criminal investigation 
skills and excessively reliant upon compliant courts, coerced 
confessions, and a culture of informants to obtain convictions. Jiang's 
legal reform strategy requires cracking down on, reforming, and 
undermining the morale of, the very law enforcement organs on which he 
relies to control crime, suppress dissent, and contain ``suspect'' 
religious groups. It is these political and institutional dilemmas that 
give Chinese efforts to rein-in torture their ``start-stop,'' highly 
ambivalent character.
    Still, this backdrop of ambivalent leadership commitment over the 
past half dozen years has opened enough of a window to encourage 
unprecedently frank policy discussion about torture within the law 
enforcement community. But because of this ambivalence, this debate has 
also, emphatically, not been held for the benefit or consumption of 
foreigners--even educated Chinese only get to glimpse it through 
newspaper expose articles on torture. Clearly fearing that foreign 
press and governments will simply treat these discussions as an 
admission of China's embarrassing torture record rather than a 
harbinger of progress, these discussions have largely been limited to 
``internal circulation'' (confidential) reports and documents, and 
unclassified journals, newspapers, and books that are rarely read by 
anyone outside of the criminal justice field.\4\ In stark contrast to 
such heavy-handed propaganda exercises as China's various ``White 
Papers'' on legal and rights issues, the policy discussion on torture 
has largely been kept out of those official media most heavily 
monitored by foreigners.\5\ In assessing these policy discussions, it 
is worth noting that these law enforcement officials and analysts have 
been criticizing China's extensive use of torture and debating how best 
to rein it in even when they had least reason to believe that foreign--
or even domestic--critics were watching.
    \4\ An excellent example would be the large number of articles on 
fighting torture in Gongan Yanjiu (English Titles: Public Security 
Studies or Policing Studies), the chief theoretical and policy journal 
of the Ministry of Public Security and of its Number Four Research 
Institute. Despite having converted to open circulation over a decade 
ago, and containing rich materials on China's police, the magazine is 
rarely read in China and almost never cited in international human 
rights monitoring reports or foreign analyses of China's legal system. 
The major exception to this relative anonymity has been the prominent 
role played by Fazhi Ribao (Legal System Daily), the highly respected 
and rather widely read flagship paper of the Party's top legal policy 
organ, the Central Political-Legal Committee. In recent years few 
papers have more regularly published investigatory articles on law 
enforcement abuses of all types, including torture.
    \5\ The mass media most heavily monitored by foreigners would 
include People's Daily, China Daily, the New China [Xinhua] News 
Service English reports, Radio Beijing International, China Central 
Television [CCTV], and so on.
              new admissions on the prevalence of torture
    Among the most significant steps forward has been the growing 
willingness of legal officials to acknowledge--sometimes in public--the 
widespread use of torture. In sharp contrast to the denials and 
linguistic dodges Foreign Ministry spokespersons employ when asked 
about torture cases, senior Chinese police, procuratorial, and legal 
officials and scholars have become increasingly Frank in acknowledging 
the extent of the problem.\6\
    \6\ See, for example, the Foreign Ministry's dodgy response to the 
Canadian Broadcasting Corporation's (CBC) filming of Shanghai police 
beating several suspects: Agence France Presse (AFP) May 21, 1998; Ta 
Kung Pao, May 25, 1998, pg. A2; Kyodo News Service May 21, 1998, in BBC 
Summary of World Broadcasts (BBCSWB) May 23, 1998. By contrast, during 
the same period, Fazhi Ribao (Legal System Daily) and Renmin Gongan Bao 
(People's Public Security Daily) were publishing numerous expose 
articles on police and procuratorial torture as part of the ``Education 
and Rectification'' campaign. See Tanner, ``China's Ambivalent Struggle 
Against Torture.''
    In recent interviews and publications, officials and analysts have 
characterized the torture problem as ``very serious,'' ``rather 
common,'' ``especially prominent,'' ``a long-persistent, chronic 
disease among public security and other judicial organs'' \7\ and even 
claimed that ``the vast majority (jueda duoshu) of people's police who 
handle cases'' believe ``torture is a fast and effective interrogation 
technique,'' and hence ``tortured confession has existed for a long 
time on a large scale.'' \8\ Professor Cui Min of China's national 
police college--the Chinese People's Public Security University--one of 
the legal system's most persistent critics of torture--has written that 
``using very large amounts of evidence derived from torture and other 
illegal means (especially the accused person's confession) remains, as 
before, a principal basis for proving cases.'' \9\ Without question, 
Minister of Public Security Jia Chunwang provided the most 
authoritative characterization when he told a summer 1998 public 
security conference that police torture and related abuses was one of 
the two most common complaints he heard about in letters from ordinary 
    \7\ These phrases come from interviews with the author and various 
articles. See, for example, Xu Deming, ``Gongan Minjing Zhiwu Fanzui de 
Tedian Yuanyin de Duice'' (Crimes Committed by Public Security People's 
Police in Performance of their Duties, their Special Characteristics, 
Origins, and Policies to Deal with Them), Gongan Yanjiu (Public 
Security Studies), 1998, Issue 4, pp. 75-77.
    \8\ Du Jingji, ``Qianlun Xingxun Bigong de Chansheng ji qi Duice'' 
(A Superficial Discussion of the Sources of Tortured Confession and 
Policies to Deal with it), in Wang Huaixu, ed., Zhencha Xunwen Yanjiu 
yu Yingyong (Research and Practise of Investigation and Interrogation), 
(Beijing, China People's Public Security University Press, 1998), pp. 
372-376, esp. pg. 374.
    \9\ Cui Min, Zhongguo Xingshi Susongfa de Xin Fazhan: Xingshi 
Susongfa Xiugai Yantao de Quanmian Huigu (New Progress in China's 
Criminal Procedure Law: A Comprehensive Look Back at Research and 
Discussions of Reforming China's Criminal Procedure Law), (Beijing, 
China People's Public Security University Press, 1996), pg. 216. 
Because of Cui's prominent role in revising the Criminal Procedure Law, 
this unclassified source is rather widely read in China's legal 
    \10\ Jia told the meeting:
    ``The problem of forced confessions--in a number of areas, it 
absolutely exists. Recently, while I was visiting basic level public 
security organs, talking with university student trainees, some of them 
told me that they themselves had beaten people. Of all the letters I 
have received from the masses since coming to the MPS, two types are 
most common. The first says that in some area, the social order is bad 
and the criminals are ferocious. The second type says that the people's 
police are breaking the law as they enforce the law. By committing 
forced confessions, they have turned someone who has committed no crime 
into a criminal, or turned someone who committed a minor violation into 
a serious criminal violator, and harmed the masses terribly.'' See 
``Minister Jia Chunwang's Speech'' to the Dalian conference on building 
the Public Security corps, June 12, 1988, in Gongan Duiwu Zhengguihua 
Jianshe Lilun yu Shijian (Beijing, China People's Public Security 
University Press, 1998), pg. 7.
    This willingness to concede the pervasive of torture was further 
confirmed when the Supreme People's Procuratorate published an open 
circulation volume in late 1997 entitled The Crime of Tortured 
Confession (Xingxun Bigong Zui). This casebook for procurators 
described hundreds of real torture cases with a sort of dispassionate 
but gut-wrenching detail that was reminiscent of Amnesty International 
reports. The book also included China's first openly published official 
statistics on criminal cases of tortured confession--reporting an 
average of 364 cases per year between 1979 and 1989, upward of 400 
cases per year for most years in the 1990's, and the striking admission 
that 241 persons had been tortured to death over the 2-year period 
    \11\ Xingxun Bigong Zui, pg. 9.
    Numerous Chinese experts insist that for both political reasons and 
statistical shortcomings, these data greatly understate the real 
occurrence of torture, though they note that publishing the statistics 
at all was a major change in policy.\12\ Also, as Amnesty International 
and others have pointed out, such official reports and statistics focus 
almost exclusively on torture as a source of confessions--not as a form 
of extra-judicial punishment or abuse or intimidation. Finally, they 
almost never mention torture of political detainees, religious 
activists, or ethnic minorities.
    \12\ Owing to the narrow definition of ``tortured confession'' in 
Chinese law, these statistics only include torture aimed at extorting 
confessions (thereby excluding wanton assaults by the police) and only 
torture committed by ``judicial officials'' or those deputized by them 
(thereby excluding civilian legal activists, who according to these 
sources are a major part of the problem). Annual fluctuations reflect 
not only changing actual rates of these crimes, but also the changing 
willingness of victims to come forward, and of procurators to prosecute 
these sensitive cases. Finally, the fact that the 1993-1994 statistics 
on persons tortured to death (241) represents such an enormous 
percentage of all torture cases (between a fourth and a third) suggests 
strongly that most torture cases do not even get reported or prosecuted 
unless they result death or detectable serious injury.

           Table One: Official Torture Statistics (1979-1996)
                            Tortured Confession
         Year(s)              Cases Formally        Persons Tortured to
                                Established                Death
1979-1989                 over 4,000 total (avg.  (no report).
1990                      472...................  (no report).
1991                      407...................  (no report).
1992                      352...................  (no report).
1993                      398...................  126.
1994                      409...................  115.
1995                      412...................  (no report).
1996                      493...................  at least 32 (Jan.-
                                                   Aug., MPS statistic).
(Principal Source: Supreme People's Procuratorate Casebook, The Crime of
  Tortured Confession, pg. 9.)

            recognizing the failure of traditional solutions
    Since about 1995, law enforcement analysts have also largely ceased 
blaming China's ancient feudal culture and residual leftist influence 
from the Cultural Revolution (1966-76) for current torture problems and 
conceded that the real reasons must lie in the failures of China's 
post-Mao law enforcement system. These officials are also gradually 
conceding that the traditional oversight mechanisms the State can most 
easily control--ideological education, internal police oversight, and 
procuratorial oversight--are grossly inadequate to China's pervasive 
torture problem.
    To check law enforcement abuses China, like other Leninist systems, 
has historically relied almost exclusively on ideological-educational 
campaigns to inculcate norms, and oversight by various Party and 
government organs internal to local public security departments. Every 
department down to the county level has within Party committees and 
departments for discipline inspection, political work, personnel, State 
supervision, auditing, and the new ``oversight police''--each one 
charged with internal oversight of some aspect of discipline and/or 
legality. There is, simply put, no shortage of internal oversight 
organs. Nevertheless, as these sources make clear, China is a textbook 
case of how internal police oversight can fail when local police 
leaders are more concerned with raising ``case-cracking rates'' than 
fighting abuses.
    China primarily relies on the old Soviet institution of the 
Procuracy to augment internal with external oversight. But law 
enforcement sources stress that the Procuracy plays a contradictory 
triple role--prosecuting criminal cases, overseeing police 
investigatory procedure, and investigating government corruption 
cases--that often results in it paying more attention to convicting 
criminals than aggressively overseeing the police. Indeed, much torture 
is committed by procurators themselves. Moreover, Chinese legal organs 
are far more decentralized than their old Soviet counterparts. Local 
Communist Party Committees--not superior-level law enforcement 
officials--have primary control over local police, procurators, and 
judges. Thus, when the Party has promoted greater ``legality,'' 
procurators sometimes oversee police more aggressively. But during 
Party-led anti-crime campaigns, procurators often deliberately abdicate 
their oversight role or risk being criticized for ``obstructionism.'' 
    \13\ For analysis of the procuracy and how its role can be 
undermined by campaigns, see Murray Scot Tanner, ``State Coercion and 
the Balance of Awe: The 1983-1986 `Stern Blows' Anti-Crime Campaign,'' 
forthcoming in The China Journal, July 2000; also Harold M. Tanner, 
Strike Hard! Anti-Crime Campaigns and Chinese Criminal Justice, 1979-
1985 (Ithaca, N.Y., Cornell University East Asia Series, Number 104, 
1999), esp. pp. 42-47.
    With this lack of self-sustaining oversight institutions, it is 
little wonder that since 1990, the leadership has launched several 
short-lived official crackdowns on torture, all of which sooner lost 
steam or were overwhelmed by renewed fears of crime waves.
    In response, many analysts have put forward new proposals aim at 
greater professionalization and training for police and procurators, 
reforming legal incentive structures (especially rules of evidence), 
increased publicity for torture crimes and their punishment, and 
encouraging lawsuits by torture victims.
                      greater professionalization
    Proposals focusing on ``professionalization'' largely begin from 
the assumption that police and procurators usually employ torture 
because they simply lack the professional skills necessary to solve 
many cases any other way. Professional investigators contend that most 
torture cases occur in basic-level police stations, where investigatory 
skills, technology, legal knowledge, professional norms, education, and 
``personnel quality'' are all weakest. Many ``professionalizers'' lay 
considerable blame on local Communist Party leaders for forcing police 
to hire unqualified cronies, using the police as a ``private army,'' or 
funneling scarce budgetary revenues away from law enforcement training 
and pay into economically profitable ventures. Most local-level police 
get little or no training in crime scene management, fingerprinting, 
blood-typing, and rudimentary forensic and investigatory skills. One 
MPS document claims that ``A few People's Police . . . treat `beating 
people' as their principal case-cracking technique.'' \14\ Advocates of 
professionalism also argue that many abuses are committed by the large 
array of untrained, non-professional citizen security activists, semi-
private security guards, and ``contract police'' officers on whom 
regular Public Security officials rely to assist in protecting work 
units and maintaining social order.
    \14\ Zhifa Shouce (1996), pg. 380-381.
    Many other law enforcement analysts admit, however, that many 
professional problems are attitudinal--many if not most police officers 
simply don't believe that torture is wrong, or at least that it leads 
to much more good than harm. According to another police official, 
``more than a few'' local police captains ``believe that during 
interrogations . . . as long as one doesn't beat the person to death or 
until they are crippled, that's all right.'' \15\ Cui Min of the Public 
Security University has recounted innumerable arguments he has had with 
local police who bluntly insist that torture is necessary and 
appropriate for law enforcement.\16\
    \15\ Du Jingji, pg. 374.
    \16\ Cui Min, ``Zai Lun Jiezhi Xingxun Bigong'' (Yet Again 
Discussing the Abolition of Tortured Confession), in Xingshi 
Susongfaxue de Xueke Qianyan Wenti (Beijing, Chinese People's Public 
Security University Press, May 2002), pg. 255-256.
    Police and procuratorial experts agree with the judgment of 
international human rights monitors that during ``strike hard'' anti-
crime campaigns professionalism is further undermined, causing torture 
cases to spike. Local Communist Party leaders, who are also under 
evaluated by their superiors on the State of local social order, turn 
up the pressure on local police to solve cases quickly. According to 
one police official, many officers ``find it hard to resist this `fast 
and effective interrogation technique.' '' \17\
    \17\ Du Jingji, pg. 374.
    In recent years, professionalization advocates have stressed 
expanding police training programs, increasing equipment purchases, 
raising hiring requirements, and giving police departments (vs. local 
CCP committees) tighter control over their personnel. Beginning in 1997 
the MPS undertook a long-term effort to professionalize criminal 
investigation that would eventually remove local police station 
officers from investigatory work, while building a nationwide network 
of professional investigators. The MPS's chief of criminal 
investigation, however, has shown little optimism that such a large 
professional corps could be trained in the near future.
             creating legal and institutional disincentives
    Public security and procuratorial anti-torture advocates also 
contend that flaws in China's Criminal Law (CL) and Criminal Procedure 
Law (CPL)--both originally drafted in 1979--create powerful incentives 
for investigators to obtain confessions by torture. They seized on the 
efforts to revise both of these laws in 1996-97, launching a debate on 
how best to discourage torture. The reforms they recommended--and are 
still promoting--to change police and procuratorial incentives borrow 
strikingly from U.S. legal concepts and incentive structures.
    They have been especially critical of the lack of an unambiguous 
``presumption of innocence'' (wuzui tuiding) and the lack of a ``right 
to remain silent'' or avoid self-incrimination (chenmo quan). Despite 
strong efforts incorporate these presumptions, the new CPL ultimately 
moved only obliquely toward requiring the State to present an 
evidentiary proof of guilt beyond a mere confession.\18\ But CPL 
Article 93 still tempts interrogators to press hard for confessions by 
requiring the criminal suspect to ``answer the investigator's questions 
truthfully.'' \19\ One police scholar complained that since the law 
encourages interrogators to believe they are dealing with guilty 
parties who have no right to withhold incriminating information, it 
clearly ``creates a pretext for investigators to engage in torture.'' 
\20\ These advocates have clearly not given up, however, and in recent 
months the Public Security University press has brought forward volumes 
of essays by law enforcement scholars continuing to press for a clear 
right to remain silent. On this issue, however, there appears to be a 
fairly clear line of disagreement between the police scholarly 
community and the Ministry of Public Security itself.
    \18\ According to the revised CPL ``No person shall be found guilty 
without being judged as such by a People's Court according to law'' and 
``A defendant cannot be found guilty and sentenced to a criminal 
punishment if there is only his statement but no evidence'' (Articles 
12 and 46).
    \19\ All quotes are from the official English translation, Zhonghua 
Renmin Gongheguo Xingshi Susong Fa [Zhong Ying wen ban] (Criminal 
Procedure Law of the People's Republic of China [Chinese-English 
Edition]), (Beijing, China Procuratorial Press, 1997). For a side-by-
side comparison of the 1979 and 1996 CPLs, see Cui Min, pp. 267-353.
    \20\ Zhou Guojun, ``Yanjin Xingxun Bigong de Sikao,'' (Pondering 
the Prohibition of Extorting Confessions), Gongan Yanjiu (Public 
Security Studies), 1999, Number 1, pp. 26-29, 43.
    Despite China's longstanding insistence that ``rights'' are unique 
to each countries' special socio-economic and cultural conditions, some 
police scholars have recently claimed that the numerous international 
legal treaties China has recently signed obligate her to incorporate 
these fundamental ``international principles of criminal procedure,'' 
in her domestic CL and CPL.\21\
    \21\ Zhou Guojun, pp. 27-28.
    The central focus of these efforts to reform the legal-incentive 
structure has been their effort to adopt an ``exclusionary rule'' for 
illegally obtained evidence--in particular tortured confessions. Cui 
Min of the Public Security University, with typical bluntness, argues 
that so long as tortured confessions remain admissible for convictions, 
``the clause `extorting confessions by torture is strictly forbidden' 
essentially exists in name only.'' \22\ Relatedly, many law enforcement 
scholars continue to support at least some modified version of a U.S.-
style ``fruit of the poisoned tree'' rule (du shu zhi guo) barring the 
use of physical, documentary, and other evidence obtained as a result 
of a tortured confession. This rule has produced an enormous range of 
opinion among law enforcement scholars, from those favouring completely 
``chopping down the tree and discarding the fruit'' (kan shu qi guo) to 
those who would ``chop down the tree but savour its fruit'' (kan shu 
shi guo), to a full range of compromise positions in between.\23\
    \22\ Cui Min, pg. 216. Professor Cui was a key participant in 
drafting the revised Criminal Procedure Law.
    \23\ This complicated debate is summarized in some detail in 
Tanner, ``China's Ambivalent Struggle Against Torture,'' pp. 21-24.
    Although reformers failed in their efforts to enshrine these 
principals in the revised CPL, they continue to use various means to 
write these rules into law. It appears that reform advocates within the 
Supreme People's Court and Supreme People's Procuratorate have tried to 
use their power to draft implementing regulations for the CPL to 
cautiously advance a fledgling exclusionary rule without a ``poisoned 
fruit'' exclusion. The SPC's June 29, 1998 ``interpretation'' on the 
new CPL states that illegally obtained witness and defendant testimony 
may not be used to decide a case.\24\ Likewise, the SPP, in its January 
30, 1997 CPL Implementing Regulations, reportedly ordered that 
``tortured confessions cannot serve as evidence of guilt of a crime.'' 
The SPP further reports it is experimenting with a ``Miranda''-style 
warning to suspects.\25\
    \24\ Zhou Guojun (pp. 29-43) indicates the SPC first issued this 
directive in its March 21, 1994 regulations on investigatory procedure. 
This document is unavailable to the author. The June 1998 Supreme 
People's Court Explanation of Several Questions of Carrying Out the 
``People's Republic of China Criminal Procedure Law,'' Court 
Interpretation No. 23 [1998], Article 61, states ``It is strictly 
forbidden to use illegal methods to collect evidence. Any witness 
testimony, defendant statement, or defendant confession which, through 
investigation, is confirmed to be obtained by using torture, threats, 
inducements, deception, or other illegal methods, cannot serve as a 
basis for deciding a case.'' in Gong, Jian, Fa Jiguan Zhixing Xingfa 
Xingshi Susongfa Xin Guiding (Beijing, Qunzhong Chubanshe, 1999) pg. 
    \25\ Zhou Guojun, pg. 29-43; Beijing Xinhua English, Jan. 5, 1999, 
translated by FBIS-CHI, Jan. 5, 1999.
    On January 2, 2001, the Supreme People's Procuratorates' latest (of 
many) confidential circulars condemning recent torture cases reflected 
these new proposals. It criticized what it called the outmoded 
traditional idea of a ``presumption of guilt,'' and the ``blind worship 
of confessions as evidence.'' The directive also called on local 
procurators to ``clarify the principle of excluding illegal evidence,'' 
and cited article 265 of its national criminal procedure regulations 
for procurators to the effect that confessions or victim or witness 
testimony obtained by torture may not be used as the basis for 
prosecuting criminals.\26\
    \26\ ``Zuigao Renmin Jianchayuan guanyu Yanjin jiang xingxun bigong 
huoqu de fanzui xianyiren gongshu zuo wei dingan yiju de tongzhi'' 
(Circular of the Supreme People's Procuratorate on Using Crime 
Suspect's Confessions Obtained Through Torture as the Basis for 
Deciding Cases), January 2, 2001, in Ministry of Public Security, 
comp., Gongan Jiguan Zhifa Xuzhi, 2001 edition, pp. 526-528.
    Current efforts among these reform advocates appear to center of 
the drafting of an ``Evidence Law'' (Zhengju Fa) that would attempt to 
unify standards of admissible evidence among China's major procedural 
codes (Civil, Criminal, and Administrative). Advocates want the draft 
law to clearly enshrine an exclusionary rule--at least for tortured 
confessions--although support for a relatively absolute ``fruit of the 
poisoned tree'' exclusion seems to have waned as China faces 
corruption, organized crime, and drug-trafficking cases that it finds 
harder to crack. Such a draft is not expected to be ready for National 
People's Congress debate for at least one to 2 years. Participants in 
drafting the law indicate their proposals still face opposition from 
the MPS and local police who fear that China's police are simply 
incapable of maintaining proper social order under stricter rules of 
legal procedure.\27\
    \27\ Interviews with legal experts, Beijing, December 2001, June 
             deep ambivalence about publicity and lawsuits
    Several law enforcement analysts privately laud the great increase 
in publicity given to torture cases and the punishment of torturers. 
Publicizing the disturbing details of several torture cases, and 
spotlighting the punishment of guilty officers communicates leadership 
disapproval far more dramatically than any internal administrative 
document. It can also force officers to carefully recalculate the costs 
and risks of getting caught, thereby establishing powerful norms 
against the practice. In recent years, the cultivation of a corps of 
reasonably aggressive ``investigative reporters'' among the official 
press has helped extend the government's monitoring capacity and help 
it crack through local cover-ups of torture cases. These reporters have 
become popular, even heroic, symbols for the government, and citizens 
often compete to entice them to come report on local abuses as a way of 
attracting top leaders' attention.
    But for the regime leadership, which fears for its stability, 
large-scale publicity of police abuses also risks undermining morale 
among the repressive forces that they rely upon for their grip on 
power. In the vast majority of cases reviewed for this project, 
officers convicted of torture have received administrative punishments, 
suspended sentences, or at most one-to-three years imprisonment.\28\
    \28\ For a complaint about courts' unwillingness to mete out tough 
punishments, see Cui Min, ``Zai Lun Jiezhi Xingxun Bigong.''
    Encouraging bold investigative journalism risks further eroding 
regime control of the official media (reporters, in turn, have often 
faced retaliation by local officials, or even from the center, when 
policies changed). Moreover, the leadership cannot control the reaction 
among broader domestic and foreign audiences. Interviews with security 
experts indicate that government leaders have carefully debated whether 
publicizing torture cases will strengthen its legitimacy, or if 
skeptical citizens and foreign observers would simply dismiss the 
publicity as the regime's admission that such abuses really are 
ubiquitous after all. As a result, publicity of torture cases tends to 
come in waves, and at other times been discouraged or carefully 
managed. Unprecedented domestic and official publicity has also, at 
times, been coupled with stronger efforts to fight international or 
unofficial publicity. Even while the official legal press investigates 
and exposes torture in unprecedented ways, police continue to arrest 
citizens who attempt to form autonomous ``civil society'' anti-torture 
monitoring groups. In one case, even a retired Chinese policeman was 
jailed.\29\ Meanwhile, official spokespersons lambaste foreign 
reporters and human rights monitoring organizations for what they label 
as ``lies'' and ``interference in China's internal affairs.''
    \29\ ``Ex-China Cop Punished for Report,'' Associated Press, March 
25, 1999.
    Through its cautious experimentation with popular lawsuits against 
police and procuratorial abuses over the past decade, the Party-state 
has tried to provide a new vehicle of popular oversight that is more 
self-sustaining, though still structured not to threaten the CCP's 
ultimate grip on power. Partial statistics and anecdotal data indicate 
a growing minority of citizen plaintiffs have successfully sued for 
redress or compensation. Still, with the limited evidence available, it 
is difficult to go beyond the commonsense conclusion that plaintiffs 
are at least winning often enough to encourage more and more suits. And 
even when they do not win a court verdict, abused citizens can use 
these suits as a strategy to draw high level attention to their 
problems and force local officials to respond.
    Some police officials have tried persuading their colleagues to 
embrace these new litigation systems as a powerful impetus to fight 
torture, and warned them of the problems that they will face if they 
fail to reform.\30\ Several departments have protested that the 
Administrative Litigation Law has been applied far too broadly, and is 
obstructing interrogation and other criminal investigative work, which 
they insist is ``non-administrative'' work. Still, courts nationwide 
have consistently found a variety of pretexts to block the use of these 
new legal avenues by political dissidents and religious activists, a 
fact which underscore the two-tiered nature of legal reforms and their 
strategic goal of splitting ``average citizens'' off from 
    \30\ Lu Quanzhen, (Jilin Province PSB Deputy Chief) ``Renzhen Xuexi 
Guanche `Guojia Peichang Fa' Dali Tuijin Gongan Fazhi Jianshe,'' 
(Resolutely Study and Implement the ``State Compensation Law'' to 
Powerfully Promote Public Security Legal System Construction), Gongan 
Yanjiu, 1994, No. 6, pp. 16-18; also Zhou Zhenbo, ibid., pp. 13-15.
        weak leadership commitment, frustration among reformers
    Since the late 1990's, the leadership's ambivalent, sporadic 
commitment to fighting torture, along with the limitations imposed by 
its fear that police will not be able to solve crimes, or that the 
State will lose its political control, appear to be causing growing 
frustration among anti-torture advocates. Anti-torture advocates seem 
resigned to a very long, politically difficult battle over years and 
decades, requiring repeated persuasion of political leaders, the 
retraining of current law enforcement officials, the recruitment of 
new, better ones, persistent efforts to get procurators and judges to 
use their authority with greater independence. Many officials and 
scholars--who are very realistic that it might take China decades to 
really root out torture--are daunted by powerful enduring attitudes 
favouring or excusing torture at local levels, especially during anti-
crime campaigns. It remains to be seen whether this frustration might 
push reformers to yet another level of even bolder proposals.
    In a recently published speech before other criminal justice 
experts, Cui Min let his frustration at the start-stop pace of change 
show through:

          ``It is not just a few police officials at basic levels who 
        have the confused belief that `tortured confession has many 
        benefits a only does a little harm'--in fact, this also 
        represents the views of a few middle and high-ranking leaders. 
        Since the 1980's, when it comes to fighting tortured confession 
        and other violations of law and discipline, even though we have 
        tried to grasp this work many times, it has often been a case 
        of `a lot of thunder, but very little rain'--we've been strict 
        for a while, then we're loose for a while. The focus and 
        opinions of our leaders change especially during `strike hard' 
        periods--even to the point of finding various methods to 
        overlook and excuse torture by lower level police. These past 
        few years, torture problems haven't just occurred in public 
        security organs, even some people's procuracies--the organ of 
        legal oversight--have committed torture while doing their own 
        investigations; it has even reached the point that the 
        Discipline Inspection Committees of the ruling party are 
        committing torture during their ``two requireds'' \31\--all of 
        which has caused the trend of torture to get worse and worse.'' 
    \31\ The ``two requireds'' are a stipulation that Party anti-
corruption investigators can place on a suspected corrupt official--
that they be available for questioning by authorities at any time they 
are required, and at any place they are required--an often brutal 
interrogation regimen effectly somewhat similar to house arrest.
    \32\ Cui Min, ``Zai Lun Jiezhi Xingxun Bigong'' pg. 256.

    In closing, Cui, in effect, threw up his hands in frustration and 
asked his colleagues rhetorically ``Do we really want to get rid of 
torture? ''
                       implications for the west
    A key goal of this presentation has been to outline the proposals 
of analysts and officials in, of all places, China's law enforcement 
system, who have been highly critical of China's torture problem, and 
are fighting to rein it in. For U.S. observers, it is striking to note 
their advocacy of rules and institutions borrowed from Western law--and 
occasionally U.S. law of the Warren Court-era--to reform the incentives 
for police and prosecutors to commit tortured confessions. We must 
always be cautious in trying to attribute changes in something as 
complex as Chinese legal thinking to foreign intellectual influence, 
and we certainly do not want to overestimate the degree of our own 
influence. But it is important for the West and the U.S. to recognize 
the impact that exposure to Western legal notions appears to be having 
on policy debates over how to fight torture, even within Chinese law 
enforcement organs.
    Until China undergoes a systemic transition to a system with the 
type of self-sustaining, self-generating oversight mechanisms needed to 
fundamentally root-out torture, it may well be that the best that can 
be hoped for is a change in the legal incentives to commit torture, 
greater professionalization, increased punishment of torturers, greater 
publicity, continued reforms with lawsuits, and related reforms within 
the current authoritarian system. Of course, no one can forecast when 
or if such a transition might occur.
    This situation has always raised for the West an extremely complex 
and morally difficult issue of how best to support such legal reform. 
There is no avoiding a brutal dilemma--that strengthening some aspects 
of professionalism in law enforcement is an essential prerequisite to 
decreasing the incidence of torture in any country, not just China. But 
while improving the ability of law enforcement officials to solve real, 
non-political crime without resort to forced confession will very 
likely in the long term--contribute to the rule of law and the Chinese 
people's sense of their legal rights, in the short term, it risks 
contributing to the institutional strength of the current flawed legal 
    The institution of the Procuracy demonstrates this policy conundrum 
very well. In recent years, the Supreme People's Procuratorate has 
actively and wholeheartedly encouraged procurators to support the 
suppression of democracy and rights advocates, and officially suspect 
religious groups. But there is also significant evidence in this study 
that the SPP is one of the most important institutional ``homes'' for 
those advocating strengthened legal procedures to fight torture, 
including stronger evidence laws and exclusionary rules, strengthened 
oversight of police interrogations, expanded prosecution of torturers, 
and greater public acknowledgement of the scale of the problem. The 
evidence in this study raises the question of whether expanded legal 
exchanges between carefully selected procuratorial scholars and 
analysts and U.S. and other Western legal training programs might 
contribute to some of these anti-torture policy recommendations.

               Prepared Statement of Veron Mei-ying Hung*

                             july 26, 2002

Protection of Human Rights in the Context of Punishment of Minor Crimes 
                                in China

    Thank you for inviting me to speak here today.
    * I am very grateful to Tom Carothers, Vice President for Studies, 
Carnegie Endowment for International Peace, Professor Stanley Lubman, 
Lecturer in Law, School of Law, University of California (Berkeley), 
and Professor Hualing Fu, Associate Professor, Faculty of Law, 
University of Hong Kong, for their comments.
    Over the past decade, I have, in academia and the private sector, 
studied administrative litigation and judicial reform in China, 
constitutional development in Hong Kong, human rights in Cambodia, and 
trade with China.
    I was Legal Associate for Asia at the Washington-based 
International Human Rights Law Group. I was also Assistant Professor of 
Law at the City University of Hong Kong and a visiting scholar at the 
People's University in Beijing. I am qualified as a barrister in 
England, Wales, and Hong Kong, and an attorney-at-law in New York State 
and District of Columbia. I worked with Freshfields LLP in Beijing and 
Hong Kong and the U.S. law firm O'Melveny and Myers in Los Angeles.
    As an associate of the Carnegie Endowment of International Peace, I 
implement its Political and Legal Reform Project to study, among other 
subjects, the impact of China's accession to the WTO on its legal 
system and the legal reform in Shanghai. I recently trained legislative 
affairs officials from China's provinces and the State Council, the 
country's highest executive organ, on ``China: WTO and Judicial 
    I am also a consultant for the United Nations Office of the High 
Commissioner for Human Rights, advising the office on implementing 
human rights technical cooperation programs in China. These programs 
focus on various legal reform and human rights issues including re-
education through labor (laodong jiaoyang or laojiao) and training of 
prison staff.
    In this testimony, I will examine ``minor crimes'' under Chinese 
law and how they are punished. I will then focus on re-education 
through labor, a mechanism of punishing ``minor crimes,'' by discussing 
its legal background, the legal and human rights problems it presents, 
the current debate in China about its future, and my reasons for 
recommending its abolition. I will, wherever appropriate, draw on 
discussion in my doctoral thesis titled Administrative Litigation and 
Court Reform in China, which is largely based on empirical research 
that includes observation of eight administrative trials and interviews 
with over 140 judges, law professors, lawyers, administrative 
officials, and litigants in Guangdong province, Chongqing, Wuhan, and 


    Re-education through labor (``RETL''), one of the most prominent 
administrative sanctions in China, is imposed on people whose act is 
not serious enough to warrant criminal punishment but too serious to be 
subjected to lenient administrative sanctions prescribed by the 
Security Administration Punishment Regulations (``SAPR''). Yet, neither 
the Chinese Criminal Law nor judicial interpretations clearly define 
serious and minor crimes.
    RETL presents four legal and human rights problems:

     Extensive Use. The expansion of the scope of RETL, as 
manifested in the principal legislative documents governing the system, 
has drawn criticisms that these documents are conflicting and that 
public security organs have turned RETL into a crime control mechanism. 
The extensive use of the system has also led to widespread human rights 
     Severe Punishment. Anyone who is subjected to RETL may be 
detained in a labor camp for up to 4 years. This punishment is more 
severe than some criminal punishments such as fines, surveillance, and 
criminal detention.
     Inconsistent with Administrative Punishment Law. The 
Administrative Punishment Law requires all administrative punishments 
that restrict personal freedom to be prescribed by ``laws,'' which, 
under Chinese law, must be promulgated by the National People's 
Congress and its Standing Committee. Although RETL is such type of 
administrative punishment, it is only prescribed by three decisions 
either made by the State Council or the Ministry of Public Security. 
The Standing Committee of the National People's Congress's approval of 
two of these decisions has not transformed them into ``laws.''
     Lack of Effective Supervision. RETL is not a type of 
criminal punishment and is thus not subject to any human rights 
safeguards embodied in the Criminal Law and Criminal Procedure Law. 
Aggrieved parties facing RETL may resort to protections granted under 
the Administrative Litigation Law. Unfortunately, the courts' role in 
reviewing the legality of administrative sanctions such as RETL has 
been limited by aggrieved parties' fear of suing administrative organs 
and limited access to lawyers as well as administrative organs' 
interference with the process.

    In light of these problems, many Chinese scholars call for 
abolishing RETL. Even if it is not abolished, they suggest that it 
should be reformed. The maximum detention period should be reduced from 
four to one or 2 years. Courts, as opposed to public security organs, 
should decide whether the punishment can be imposed and such decisions 
can be challenged on appeal. Further, RETL should be incorporated into 
criminal law.
    These reform measures would not effectively resolve the human 
rights problems presented by RETL. Although Chinese courts are 
undergoing a 5-year reform program, extra-judicial interference will 
not disappear soon. The Criminal Procedure Law only offers limited 
human rights protections and has not yet been fully implemented since 
its revision in 1996. RETL should be abolished.
    The Chinese government is planning to enact a law on RETL to 
improve the system. It appears to have ruled out abolition. While the 
government's intent of not abolishing RETL is disappointing, its 
determination of improving the system is welcome. The government must 
understand that any reforms that fall short of addressing the problems 
discussed here will negate its efforts in establishing a rule-of-law-
based criminal system.

                   I. Punishment of ``Minor Crimes''

                          a. ``minor crimes''
    In Chinese criminal law, both criminality and punishment of a 
particular act depend on whether the ``circumstances'' of the act are 
``serious'' or ``minor.'' \1\ The Criminal Law, however, does not 
clearly define the term ``minor crimes'' even though the distinction 
between the ``serious'' and the ``minor'' pervades the legislation.
    \1\ See Criminal Law of the People's Republic of China, promulgated 
on July 1, 1979, revised on Mar. 14, 1997, Dec. 25 1999, Aug. 31, 2001, 
and Dec. 29, 2001 [hereinafter Criminal Law].
    Article 13 of the Criminal Law defines crimes as all acts that 
``endanger the sovereignty, territorial integrity and security of the 
state; split the state, subvert the political power of the people's 
democratic dictatorship and overthrow the socialist system; undermine 
the social and economic orders; encroach upon property owned by the 
State or collectively owned by the laboring masses; infringe upon 
citizens' privately owned property; infringe upon citizens' rights of 
the person, democratic rights, and other rights; and other acts that 
endanger society and should, according to law, be criminally 
punished.'' The provision, however, states that these acts are not 
deemed crimes ``if the circumstances are clearly minor and the harm is 
not great.''
    Even if an act is deemed a crime, Article 37 provides that 
``[w]here the circumstances of a person's crime are minor and do not 
require criminal punishment, the person may be exempted from criminal 
sanctions, but he may, according to the different circumstances of each 
case, be reprimanded or ordered to make a statement of repentance or 
formal apology or make compensation for losses, or be subjected to 
administrative sanctions by the competent department.''
    The word ``circumstances'' is not defined in the law but scholars 
have generally agreed that it has a very broad meaning. It includes 
``all the aspects of a specified act that are thought relevant but are 
not expressly provided for in the written law governing that act.'' \2\ 
In particular, it can refer to ``the subjective blameworthiness of a 
particular actor'' or ``external social and political effects of a 
crime.'' \3\
    \2\ Note: Concepts of Law in the Chinese Anti-Crime Campaign, 98 
HARV. L. REV. 1890, 1901 n.52 (1985). See also Fang Huicheng, [Do Not 
Punish Multiple Crimes as a Single Crime Committed Under ``Serious 
Circumstances''], FAXUE [JURISPRUDENCE], No. 3, 1984, 24; Wen Jing, [My 
Humble Opinion on the Circumstances of a Crime], FAXUE JIKAN 
    \3\ Id.
    A scholar points out that ``the `circumstances' need common 
knowledge to be understood'' \4\ but acknowledges that ``it does not 
usually work well'' and, therefore, it is necessary for the Supreme 
People's Court and the Supreme People's Procuratorate to issue judicial 
interpretations to provide clarifications.\5\ The Supreme People's 
Court is authorized to interpret ``any problems of the concrete 
application of laws or regulations in the course of litigation'' 
whereas the Supreme People's Procuratorate has the power to interpret 
only ``questions involving the specific application of laws and decrees 
in the procuratorial work of the procuratorates.'' \6\
    \4\ Shizhou Wang, The Judicial Explanation In Chinese Criminal Law, 
43 AM. J. COMP. L. 569, 575 (1995).
    \5\ Id.
    \6\ Resolution of the National People's Congress Standing Committee 
on Strengthening Legal Interpretation Work, adopted on June 10, 1981.
    Numerous judicial interpretations have been issued to provide 
guidance as to whether or not the circumstances of a particular crime 
are minor. Two examples are illustrative. Article 294 of the Criminal 
Law states, inter alia, that

          Whoever organizes, leads, or actively participates in an 
        organization with characteristics of a criminal syndicate, 
        which carries out lawless and criminal activities in an 
        organized manner through violence, threat, or other means, with 
        the aim of playing the tyrant in a locality, committing all 
        evil things, bullying and harming the masses, and seriously 
        undermining economic and social orders shall be sentenced to 
        fixed-term imprisonment of not less than 3 years nor more than 
        10 years. Other participants shall be sentenced to fixed-term 
        imprisonment of not more than 3 years, criminal detention, 
        surveillance, or deprivation of political rights.

    The Supreme People's Court's Interpretation on Several Questions 
Concerning the Concrete Application of Laws in Adjudicating Criminal 
Syndicate Cases\7\ clarifies that participating in a criminal syndicate 
is not deemed a crime if the circumstances are minor, such as the 
participant did not carry out any criminal activity or was deceived or 
coerced to join the syndicate.\8\
    \7\ Supreme People's Court's Interpretation on Several Questions 
Concerning the Concrete Application of Laws in Adjudicating Criminal 
Syndicate Cases, adopted on Dec. 4, 2000 and effective on Dec. 10, 
    \8\ Id. art. 3(2).
    Article 264 of the Criminal Law provides, inter alia, that 
``[t]hose who steal relatively large amounts of public or private money 
and property . . . shall be sentenced to fixed-term imprisonment of not 
more than 3 years, criminal detention, or surveillance, and may in 
addition or exclusively be subject to fines.'' The Supreme People's 
Court's Interpretation on Several Questions Concerning the Concrete 
Application of Laws in Adjudicating Theft Cases\9\ defines ``relatively 
large amounts'' as amounts of 500-2,000 yuan (US$60-250) and above. The 
Higher Level People's Court of each province, autonomous region, or 
municipality directly under the Central Government adopts, after 
considering the economic development and social order of its locality, 
an appropriate figure within this range as the standard to be applied 
in the locality.\10\ Stealing of this amount of money and property is, 
however, not deemed a crime if the circumstances are minor.\11\ The 
Interpretation does not provide an exhaustive list of minor 
circumstances but refers to several situations as examples: the 
stealing was committed by a person who has reached the age of 16 but 
not the age of 18, the stolen property and money have been completely 
returned, the person surrendered himself or herself to the police, or 
the person was coerced to steal and shared none or a relatively small 
amount of the stolen property.\12\
    \9\ Supreme People's Court's Interpretation on Several Questions 
Concerning the Concrete Application of Laws in Adjudicating Theft 
Cases, adopted on Nov. 4, 1997 and effective on Mar. 17, 1998.
    \10\ Id. art. 3.
    \11\ Id. art. 6(2).
    \12\ Id.
    Although judicial interpretations help clarify the Criminal Law and 
are thus hailed as an ``indispensable'' source for understanding 
Chinese law,\13\ the broad and indeterminate language found in these 
interpretations, as illustrated in the above two examples, create wide 
scope of discretion in interpretation.\14\ Each of the cited 
interpretations defines ``minor'' as ``minor,'' and the resulting 
tautology fails to provide genuine clarification and guidance to the 
courts and administrative agencies.
    \13\ See Wang, supra note 4, at 569. Wang writes that judicial 
interpretations play an important role in the Chinese criminal justice 
system because they have six functions: (1) ``indicating how to 
correctly understand the meaning of the law;'' (2) ``explaining the 
issues of the law;'' (3) ``indicating the concrete standard of 
sentencing within the statutory punishments;'' (4) ``clarifying the 
guilty line and line for giving a heavier punishment when the law 
requires `serious circumstances' or `especially serious 
circumstances';'' (5) ``clarifying the limitation of time for a 
particular law;'' and (6) ``explaining how to implement laws.'' Id. at 
    \14\ For detailed discussion of Chinese legislative drafting, see 
Perry Keller, Legislation in the People's Republic of China, 23 U. 
& Lester Ross, Language and Law: Sources of Systemic Vagueness and 
Ambiguous Authority in Chinese Statutory Language, in THE LIMITS OF THE 
eds. 2000).
B. Punishment
    When the circumstances of a person's act are so minor that the act 
is not deemed a crime, or when the circumstances of a person's crime 
are so minor that the crime does not require criminal punishment, the 
person may still be subjected to administrative sanctions. The re-
education through labor, which is to be discussed in Part II, and those 
prescribed by the Security Administration Punishment Regulations 
(``SAPR'')\15\ are the most prominent administrative sanctions.
    \15\ Security Administration Punishment Regulations, adopted on 
Sept. 5, 1986, effective on Jan. 1, 1987, revised on May 12, 1994 
[hereinafter SAPR].
    Article 2 of the SAPR provides that ``[w]hoever disturbs social 
order, endangers public safety, infringes upon a citizen's rights of 
the person or encroaches upon public or private property'' shall be 
punished in accordance with the SAPR ``if such an act is not serious 
enough for criminal punishment'' and ``security administration 
punishment should be imposed.'' \16\ Penalties under the regulations 
include a warning, a maximum fine of 5,000 yuan (US$625), and 
administrative detention of not more than 15 days.\17\ The public 
security organs have exclusive responsibility for imposing these 
    \16\ Articles 19-32 of the SAPR specify the circumstances under 
which the SAPR is violated and the corresponding punishments.
    \17\ SAPR, supra note 15, art. 6.

                     II. Re-Education Through Labor

                          a. legal background
    Re-education through labor (``RETL'') is imposed on people whose 
act is not serious enough to warrant criminal punishment but too 
serious to be dealt with under the SAPR. RETL is mainly governed by 
three legislative documents. According to the 1957 Decision of the 
State Council Regarding the Question of Re-education Through Labor 
(``1957 Decision''),\18\ the purposes of establishing RETL are ``to 
reform into self-supporting new persons those persons who are able to 
work but insist on leading an idle life, violate law and discipline, or 
do not engage in honest pursuits'' and ``to further maintain public 
order, thus facilitating socialist construction.'' \19\ The sanctions 
should be imposed on the following four categories of people:
    \18\ Decision of the State Council Regarding the Question of Re-
education Through Labor, approved by the Standing Committee of the 
National People's Congress on Aug. 1, 1957, promulgated and effective 
on Aug. 3, 1957 [hereinafter 1957 Decision].
    \19\ Id. preamble.

    (1) ``those who do not engage in honest pursuits, involve 
themselves in hooliganism, commit larceny, fraud or other acts for 
which they are not criminally liable, or violate public security rules 
and refuse to mend their ways despite repeated admonition;'' \20\
    \20\ Id. para. 1(1).
    (2) ``counterrevolutionaries and anti-socialist reactionaries who 
commit minor crimes and are not criminally liable and who have been 
given sanctions of expulsion by government organs, organizations, 
enterprises or schools, and as a result have difficulty in making a 
living;'' \21\
    \21\ Id. para. 1(2). When the Criminal Law was revised in 1997, the 
term ``counterrevolutionary'' was replaced with the term ``crimes 
against state security.'' The term ``counterrevolutionary'' found in 
the 1957 Decision has not been amended accordingly.
    (3) ``employees of government organs, organizations, enterprises 
and schools who are able-bodied, but have refused to work for a long 
period, violated discipline or jeopardized public order, and have been 
given sanctions of expulsion, and as a result have difficulty in making 
a living;'' \22\ or
    \22\ Id. para. 1(3).
    (4) ``those who refuse to accept the work assigned to them or the 
arrangement made for their employment or who decline to take part in 
manual labor and production despite persuasion, keep behaving 
disruptively on purpose, obstruct public officials from performing 
their duties and refuse to mend their ways despite repeated 
admonition.'' \23\
    \23\ Id. para. 1(4).

    Various bodies may apply for imposition of RETL on anyone who falls 
into one of the above four categories. These include ``civil affairs 
and public security departments or the government organ, organization, 
enterprise, school or other units to which the person belongs; or his 
or her parents or guardians.'' \24\ The applications have to be 
approved by the ``people's committees of provinces, autonomous regions, 
and municipalities directly under the Central Government or by organs 
authorized by these people's committees.'' \25\ The 1957 Decision 
stipulates that agencies in charge of RETL will be established ``at the 
level of provinces, autonomous regions, municipalities directly under 
the Central Government'' or established ``with the approval of the 
people's committees of provinces, autonomous regions, and 
municipalities directly under the Central Government.'' \26\ It also 
states that the work of these agencies will be jointly directed and 
managed by the departments of civil affairs and public security.\27\
    \24\ Id. para. 3.
    \25\ Id. para. 3.
    \26\ Id. para. 5.
    \27\ Id.
    In 1979, the State Council issued the Supplementary Decision Of The 
State Council For Re-education Through Labor (``1979 Decision'') to 
provide more details about RETL.\28\ Under the 1957 Decision, a person 
can be subject to RETL for indefinite periods but the 1979 Decision 
confines these periods to one to 3 years, with 1-year extension 
``whenever it is necessary.'' \29\ The 1979 Decision clarifies that 
RETL Administrative Committees shall be established by ``the people's 
governments of the provinces, autonomous regions, and municipalities 
directly under the Central Government, and of large and medium-sized 
cities.'' \30\ These committees shall be composed of ``persons who are 
in charge of civil affairs, public security and labor departments'' and 
these persons shall be responsible for directing and managing the work 
of RETL.\31\ Further, the 1979 Decision states that RETL can only be 
imposed on ``those people in large and medium-sized cities who need to 
be re-educated through labor.'' \32\ The RETL Administrative Committees 
of provinces, autonomous regions, and municipalities directly under the 
Central Government, and of large and medium-sized cities, are 
responsible for examining and approving those who need such re-
education.\33\ In other words, RETL is not applicable to the rural 
    \28\ Supplementary Decision of the State Council for Re-education 
Through Labor, approved by the Standing Committee of the National 
People's Congress on Nov. 29, 1979, promulgated and effective on Nov. 
29, 1979.
    \29\ Id. para. 3.
    \30\ Id. para 1.
    \31\ Id.
    \32\ Id. para 2.
    \33\ Id.
    In 1982, the Ministry of Public Security passed, with the approval 
of the State Council, the Trial Methods for the Implementation of Re-
education Through Labor (``1982 Trial Methods'').\34\ Under this 
document, RETL can be imposed not only on the four categories of 
persons listed under the 1957 Decision, but also on anyone who ``joined 
others to commit a crime such as murder, robbery, rape, and arson'' or 
who ``abetted others to commit a crime'' and the circumstances 
surrounding these crimes are not serious enough for criminal 
punishments.\35\ Moreover, RETL is also applicable to the rural 
populace if the person committed crimes ``in cities, along railways, 
and in large-scale factories and mines.'' \36\
    \34\ Notice of the State Council on Re-Issuing the Ministry of 
Public Security's Trial Methods for the Implementation of Re-Education 
Through Labor, promulgated and effective on Jan. 21, 1982.
    \35\ Id. art. 10(2) and (6).
    \36\ Id. art. 9.
    b. legal and human rights problems of re-education through labor
1. Extensive use
    The expansion of the scope of RETL, as shown in the 1957 Decision, 
the 1979 Decision, and the 1982 Trial Methods, has drawn criticisms 
from Chinese legal scholars that these documents are conflicting\37\ 
and that RETL has been turned by the public security organs into a 
``crime control mechanism,'' \38\ which is different from the 
legislative intent stipulated in the 1957 Decision.
    \37\ See Shen Fujun, [Some Thoughts about the Abolition of Re-
education Through Labor System], FAXUE [JURISPRUDENCE], No.7, 1999, 18, 
at 18; Chen Ruihua, [Historical Examination of Re-education Through 
Vol. 13. No. 6 (2001), 657; Chen Xingliang, Research on China's Re-
education Through Labor System: From the Perspective of Criminal Rule 
6(2001), 689, 693-94.
    \38\ Hualing Fu, Criminal Procedure Law, in INTRODUCTION TO CHINESE 
LAW 129, 134 (Chenguang Wang and Xianchu Zhang eds., 1997). See also 
Chen Xingliang, supra note 37, at 694.
    Numerous reports about the extensive use of the system have also 
led to widespread human rights concerns. RETL is imposed by RETL 
Administrative Committees that are dominated by public security 
organs,\39\ and these organs have reportedly abused the system to take 
actions against suspected offenders so as to avoid the procedural 
requirements or supervisory mechanisms presented under the Criminal 
Procedure Law.\40\ In particular, it has been reported that public 
security organs have imposed RETL on offenders against whom they lack 
sufficient evidence to support a charge even though the circumstances 
of the crime committed are not minor.\41\
    \39\ See Tao Jigang, [Some Thoughts on Laws Relating to Re-
Kechang, Strengthen the Reform Efforts, Revise and Perfect the Criminal 
Law], FAXUE PINGLUN [LAW REVIEW], No. 5, 1996, 1, at 7-8; Chen 
Xingliang, Re-education Through Labor: Analysis Based on International 
Bill of Human Rights, FAXUE JURISPRUDENCE], No. 10 (2001), 49, 51-52; 
Chen Ruihua, supra note 37, at 668.
    \40\ Criminal Procedure Law of the People's Republic of China, 
promulgated on July 1, 1979, revised on Mar. 17, 1996 [hereinafter 
AND VIOLATIONS OF HUMAN RIGHTS, 69-79 (1993); Amnesty International, 
Open Letter To The President Of The People's Republic Of China, M2 
PRESSWIRE, Sept. 28, 1999, available in LEXIS, News Library, News Group 
    \41\ See Fu, supra note 38, at 134; Chen Xingliang, supra note 39, 
at 52.
    Official sources reveal that about 3.5 million people have been re-
educated since its establishment in the 1950's.\42\ At present, 300,000 
people are being held in the country's nearly 300 RETL camps,\43\ at 
least 1000 of whom are there because they are Falun Gong followers.\44\ 
Torture\45\ and maltreatment such as banning family visits and 
censoring inmates' personal correspondence\46\ are alleged to be 
commonly practiced in RETL camps. Of all the current inmates, a third 
are punished by RETL because they were drug addicts, prostitutes, 
brothel visitors; another third are offenders of minor crimes such as 
larceny, fraud, and assault. The rest comprises of other types of 
    \42\ See China--Government Re-education System on Legal Basis, 
CHINA DAILY, Nov. 2, 1998; Beijing to Introduce Re-education Through 
WORLD BROADCASTS, Feb. 19, 2001, available in LEXIS, News Library, News 
Group File.
    \43\ See Minister Says 1.7 Million Held In Prisons, Labour Camps, 
available in LEXIS, News Library, News Group File; John Leicester, 
China Gives Reporters Glimpse of Labor Camp Dubbed `Living Hell' by 
Critics, THE ASSOCIATED PRESS, May 23, 2001, available in LEXIS, News 
Library, News Group File.
    \44\ China has not disclosed the exact number of Falun Gong 
followers held in re-education through labor camps. But it confirmed in 
January 2001 that at least 470 followers were held at the Masanjia 
Education-Through-Labour Education Institution in Liaoning Province and 
the official media reported in August 2001 that ``th[is] camp has also 
succeeded in `re-educating' more than 90 per cent of the 1,000 female 
Falun Gong members housed there.'' See Forty-Seven Former Female Falun 
Gong Followers Released After Reform, XINHUA NEWS AGENCY, BBC SUMMARY 
OF WORLD BROADCASTS, Jan. 27, 2001, available in LEXIS, News Library, 
News Group File; China Rejects Report of Hunger Strike by Jailed Falun 
Gong Members, AGENCE FRANCE PRESSE, Aug. 30, 2001, available in LEXIS, 
News Library, News Group File. The Hong Kong-based Information Center 
for Human Rights and Democracy estimated that about 10,000 Falun Gong 
followers have been sent to these camps since the Falun Gong movement 
was banned in July 1999. See Nearly 500 Falun Gong Were Held At Just 
One Labour Camp: China, AGENCE FRANCE PRESSE, Jan. 18, 2001, available 
in LEXIS, News Library, News Group File.
    \45\ See Amnesty International: China--Torture In China Under The 
Spotlight At The United Nations, M2 PRESSWIRE, May 5, 2000, available 
in LEXIS, News Library, News Group File; Released Chinese Dissident 
Speaks of Horrors of Labor Camp Life, AGENCE FRANCE PRESSE, Feb. 15, 
2002, available in LEXIS, News Library, News Group File.
    \46\ See Fong Tak-Ho, Dissident Threatens Legal Action, HONG KONG 
STANDARD, July 10, 1997, available in LEXIS, News Library, News Group 
    \47\ See Chen Xingliang, supra note 37, at 694, 697.
2. Severe punishment
    Although couched in terms of leniency, the 1979 Decision and the 
1982 Trial Methods allow a person to be detained in a labor camp for up 
to 4 years. This punishment is far more severe than some criminal 
punishments, which include five types of ``principal punishments'' 
(zhuxing)\48\ and three types of ``supplementary punishments'' (fujia 
xing).\49\ The five types of principal punishments are:
    \48\ Criminal Law, supra note 1, art. 33.
    \49\ Id. art. 34.

    (1) Surveillance (guanzhi) (from 3 months to 2 years)\50\
    \50\ Id. art. 38.
    (2) Criminal detention (juyi) (from 1 month to 6 months)\51\
    \51\ Id. art. 42.
    (3) Fixed-term imprisonment (from 6 months to 15 years and up to 20 
years when the death penalty is commuted to fixed-term imprisonment or 
in cases of combined punishment for more than one crime)\52\
    \52\ Id. arts. 45, 50, and 69.
    (4) Life imprisonment
    (5) Death penalty

    Supplementary punishments, regardless of the opposite meaning 
conveyed by its name, may be imposed independently.\53\ They include:
    \53\ Id. art. 34.

    (1) Fines (the amount of the fine imposed depends on the 
circumstances of the crime)\54\
    \54\ Id. art. 52.
    (2) Deprivation of political rights\55\
    \55\ Deprivation of political rights refers to deprivation of the 
following rights: (1) the right to elect and the right to be elected; 
(2) the right to freedom of speech, of the press, of assembly, of 
association, of procession, and of demonstration; (3) the right to hold 
a position in state organs; and (4) the right to hold a leading 
position in a state-owned company, enterprise, or institution or 
people's organization. Id. art. 54.
    (3) Confiscation of property Critics argue that because RETL is 
more severe than criminal punishments such as fines, surveillance, and 
criminal detention, application of the sanction violates the rationale 
behind RETL: the system should be applied to cases whose level of 
severity does not merit any criminal punishment.\56\
    \56\ See Chen Zexian, [Re-education Through Labor System and 
Educational Reform of Prisoners in China], in [HUMAN RIGHTS AND 
ADMINISTRATION OF JUSTICE] 30, 33-4 (Liu, Li and Kjaerum. eds., 1999); 
Chen Ruihua, supra note 37, at 669; Chen Xingliang, supra note 37, at 
3. Inconsistent with administrative punishment law
    The RETL system has also been challenged as inconsistent with the 
Administrative Punishment Law.\57\ The statute specifically requires 
all administrative punishments that restrict personal freedom to be 
prescribed by ``laws.'' \58\ Administrative regulations and rules can 
only prescribe other punishments such as warning, fines, confiscation 
of illegally gained income and property, and provisional suspension or 
revocation of permits or licenses.\59\ According to the hierarchy of 
Chinese legislative authorities, only the National People's Congress 
and its Standing Committee can promulgate ``laws.'' \60\ RETL, which is 
a type of administrative punishment that restricts personal 
freedom,\61\ is prescribed not by a ``law'' but by decisions made by 
the State Council or the Ministry of Public Security, and the legality 
of this system is therefore questionable.\62\
    \57\ Administrative Punishment Law of the People's Republic of 
China, promulgated on Mar. 17, 1996 and effective on Oct. 1, 1996.
    \58\ Id. art. 9
    \59\ Id. arts. 8, 10 and 11.
JURISPRUDENCE] 205 (Ying Songnian, ed., 1988).
    \61\ This point was in dispute in the past. See Chen Xingliang, 
supra note 39; Chen Ruihua, supra note 37, at 669; Jiang Jinfang, 
[Legal Developments of Re-education Through Labor System and Practical 
6(2001) 674, 682.
    \62\ See Shen Fujun, supra note 37, at 19; Chen Zexian, supra note 
    Those who disagree with the above view may argue that the Standing 
Committee of the National People's Congress's approval of the 1957 and 
1979 Decisions has effectively transformed them into ``laws.'' \63\ 
This view is debatable. But even if it is correct, the same argument 
cannot be applied to the 1982 Trial Methods because the Standing 
Committee of the National People's Congress has never approved the 
document. Among the three documents, the 1982 Trial Methods has the 
most extensive and controversial coverage.
    \63\ See supra notes 18 and 28. Chen Xingliang argues that they are 
not ``laws;'' they are ``pre-laws'' (zhun falu), at the very most, see 
Chen Xingliang, supra note 37, at 689, 692.
4. Lack of effective supervision
    As an administrative, rather than criminal, sanction, RETL is not 
subject to any human rights safeguards, however limited they are, 
contained in the Criminal Law and Criminal Procedure Law.
    The Chinese Criminal Law was promulgated in 1979 and amended four 
times from 1997 to 2001. The 1997 amendment was particularly 
remarkable. It abolished the provision on analogy\64\ and adopted 
certain fundamental principles of justice such as equality before the 
law\65\ and proportionality (zuixing xiang shiying yuanze).\66\ But it 
did not adopt the principle of double jeopardy as far as crimes 
committed outside China are concerned.\67\
    \64\ Article 79 of the 1979 Criminal Law provided that ``[a] person 
who commits crimes not explicitly defined in the Specific Provisions of 
this Law may be convicted and sentenced, after obtaining the approval 
of the Supreme People's Court, according to the most similar article in 
this Law.'' After the 1997 amendment, the Criminal Law provides that 
``[a]ny act deemed by explicit stipulations of law as a crime shall be 
convicted and given punishment by law and any act that no explicit 
stipulations of law deem a crime shall not be convicted or given 
punishment.'' Criminal Law, supra note 1, art. 3.
    \65\ ``Anyone committing crimes shall be treated equally in 
applying the law. No one shall have any privileges outside the law.'' 
Id. art. 4.
    \66\ ``The punishment shall be proportional to the criminal acts 
committed by the offenders and the criminal responsibilities that the 
offenders shall bear.'' Id. art. 5.
    \67\ For detailed discussion of the amendment to the Criminal Law, 
supra note 62, at 174-183.
    The revision of the Criminal Procedure Law in 1996 brought the 
legislation closer to international human rights standards by adopting 
the presumption of innocence, expanding the right to counsel, and 
increasing the role of the courts so as to eliminate the prior practice 
of pre-trial determination of guilt. Despite these improvements, the 
revised Criminal Procedure Law still has various deficiencies.\68\ For 
example, it allows long period of pre-arrest detention. The public 
security organs can detain for a period of 30 days those ``strongly 
suspected of wandering around committing crimes, of committing multiple 
crimes, or of forming gangs to commit crimes.'' \69\ The requirement 
for the public security organs to inform detainees' families of the 
reasons for detention and the place of custody within 24 hours after 
the detention may be waived if this ``may hinder the investigation or 
there is no way of notifying them.'' \70\
    \68\ For detailed discussion of the amendment to the Criminal 
Procedure Law, see Fu, supra note 38; LAWYERS COMMITTEE FOR HUMAN 
PROCEDURE LAW (1996); JIANFU CHEN, supra note 62, at 200-16; Daphne 
Huang, The Right to a Fair Trial in China, 7 PAC. RIM. L. & POL'Y 171 
    \69\ Criminal Procedure Law, supra note 40, arts. 61(7), 69(2).
    \70\ Id. art. 64.
    As these limited human rights protections are beyond the reach of 
those who are punished by RETL, aggrieved parties may only resort to 
protections granted under the Administrative Litigation Law.\71\ The 
statute stipulates that anyone who believes that his or her legitimate 
rights and interests have been infringed by administrative acts such as 
administrative sanctions may bring lawsuits to courts.\72\ Should the 
court find the challenged administrative act illegal, it may revoke 
(chexiao) the act.\73\
    \71\ Administrative Litigation Law of the People's Republic of 
China, promulgated on Apr. 4, 1989 and effective on Oct. 1, 1990.
    \72\ Id. arts. 1-2.
    \73\ Id. art. 54.
    Based on documentary sources and empirical research, I have noticed 
some improvements in administrative litigation such as growing respect 
for procedural requirements. However, the existing problems as 
discussed below appear to have limited the courts' role in reviewing 
the legality of administrative sanctions such as RETL.\74\
    \74\ See also Chen Ruihua, supra note 37, at 671; Chen Xingliang, 
supra note 37, at 695-96.
    a. Fear.--According to interviewees, aggrieved parties dare not sue 
administrative organs, especially public security organs, which have 
wielded extensive power over the populace for decades in China. They 
fear reprisals resulted from direct confrontation with these organs. 
Nevertheless, official statistics show that during the years from 1991 
to 2000, a significant portion (ranging from 15 to 30 per cent) of 
administrative cases accepted by first-instance courts were ``public 
security'' (gongan) cases, which cover ``social order'' (zhian) cases, 
RETL (laojiao) cases, and ``others'' (qita).\75\ (See Table One). If 
this fear exists, why do public security cases account for such 
significant portion?
    \75\ In China, administrative cases are classified into about 30 
categories including public security (gongan), industry and commerce 
(gongshang), land use (tudi), forestry (linye), city construction 
(chengjian), customs (haiguan), environmental protection (huanbao), 
patent (zhuanli), and tax (shuiwu) cases. Public security cases are 
further categorized as social order (zhian), re-education through labor 
(laojiao), or others (qita). Interviews with judges in Guangdong, Dec. 
1998-Jan. 1999.

  Table One.--Number of First-Instance Administrative Cases Accepted in
                          China, 1991-2000\76\
                     Administrative    Public Security     Percentage
       Year               Cases             Cases         (percent)\77\
1991                          25,667              \78\
1992                          27,125             7,863             28.99
1993                          27,911             7,018             25.14
1994                          35,083             8,624             24.58
1995                          52,596            11,633             22.12
1996                          79,966            15,090             18.87
1997                          90,557            14,171             15.65
1998                          98,350            14,288             14.53
1999                          97,569            14,611             14.98
2000                          85,760            13,173             15.36
\76\ CHINA LAW YEARBOOK 1992-2001.
\77\ This column lists the percentage of the total number of
  administrative cases that public security cases account for.
\78\ No data could be found to indicate the number of ``public
  security'' cases accepted in 1991. However, it was reported in CHINA
  LAW YEARBOOK 1992 that 7,720 ``social order'' (zhian) cases were
  accepted, accounting for 30.08 per cent of all first-instance
  administrative cases accepted in 1991.

    Interviewees explained that the relatively high percentage of 
``public security'' administrative cases simply reflected public 
security organs' possession of enormous power affecting a wide range of 
citizens' daily activities. Regardless of their fear, some aggrieved 
parties finally resorted to administrative litigation because they 
considered their grievances too grave to endure.
    Some other evidence corroborates this explanation. According to a 
survey conducted in 1992, 51 of 90 plaintiffs interviewed said that 
they filed suits under the Administrative Litigation Law because they 
felt this was their last resort.\79\ In 1993, an abstract painter 
reportedly sued Beijing's Haidian District Police after three officers 
beat him for arguing with a bus conductor. The painter won his case. 
However, the police arrested him two weeks later and charged him with a 
trumped-up bicycle theft. He was then sent, without trial, to 2 years 
in a labor camp. When interviewed in 1997, the painter recalled, ``My 
vision was too optimistic. From now on, I will express myself through 
my art.'' \80\ In fact, police misconduct was considered a ``grave'' 
problem by then--Supreme People's Court president Ren Jianxin in 
December 1996 and he criticized some law-enforcement officials ``[who] 
have taken advantage of legal loop-holes, intentionally misinterpreted 
the law, distorted evidence and broken the law they enforce.'' \81\
OF LAW] 322 (Gong Xiangrui et al. eds., 1993).
    \80\ George Wehrfritz and Michael Laris, Rules Are the Law, 
NEWSWEEK (ATLANTIC EDITION), Sept. 29, 1997, available in LEXIS, News 
Library, News Group File.
    \81\ Id.
    b. Limited Access to Lawyers.--The fee for retaining a lawyer 
varies in accordance with individual lawyer's experience and 
competence. On average, the fee can amount to at least 2,000-3,000 yuan 
(US$250-$375) for a case tried by a basic level court and 5,000 yuan 
(US$625) for one by an intermediate level court.\82\ The average 
monthly income of an ordinary worker is below 1,000 yuan (US$125).\83\
    \82\ Interviews in Guangdong, Dec. 1998-Jan. 1999 and Chongqing, 
Dec. 1999-Jan. 2000.
    \83\ Id.
    Free legal service is available but its effectiveness in 
administrative litigation is doubtful.\84\ Legal aid rules generally 
require eligible applicants' monthly income to be less than a fixed 
amount ranging from 200-400 yuan (US$25-$50).\85\ Few people except 
those living below the poverty line or those who are unemployed can 
meet this requirement.\86\ Besides, priorities of legal aid are given 
to criminal defendants facing the death penalty as well as the blind, 
deaf, dumb, aged, and minors to assist their claim for compensation in 
personal injury cases.\87\ Administrative cases do not seem to have 
attracted legal aid providers' attention. From its opening in 1995 to 
January 1999, the Guangzhou Legal Aid Center has only handled two 
administrative cases.\88\ By contrast, within the year of 1998, 700 
criminal and economic cases were handled.\89\ Legal aid centers in the 
entire Chongqing handled about 2,400 criminal cases and 3,500 civil 
cases in 1999. Only about ten cases were administrative cases.\90\
    \84\ For discussion of legal aid practices in China, see generally 
David Lee, Legal Reform in China: A Role for Nongovernmental 
Organizations, 25 YALE J. INT'L L. 363 (2000); Benjamin L. Liebman, 
Legal Aid and Public Interest Law in China, 34 TEX. INT'L L. J. 211 
    \85\ Guangzhou Legal Aid Center adopted ``340-380 yuan'' as the 
standard. See Pamphlet issued by Guangzhou Legal Aid Center, Jan. 1999 
(on file with author).
    \86\ Interview with Director, Guangzhou Legal Aid Center, Jan. 
1999; Interview with Directors, Chongqing Legal Aid Center, Jan. 2000.
    \87\ See Backgrounder: Qualifications for Chinese Citizens to 
Receive Legal Aid, XINHUA GENERAL NEWS SERVICE, JUNE 16, 2000, 
available in LEXIS, News Library, News Group File.
    \88\ Interview with Director, Legal Aid Center in Guangzhou, Jan. 
    \89\ Id.
    \90\ Interview with Directors, Legal Aid Center in Chongqing, Jan. 
    Even if aggrieved parties can afford to retain lawyers, they may 
encounter difficulties because lawyers are not enthusiastic about 
handling administrative cases. Unlike economic and civil cases, the 
amount in dispute in an administrative case is low and thus lawyers 
cannot charge high fees. Moreover, most lawyers are reluctant to stand 
up to the government, which has power to decide whether or not a 
lawyer's license should be renewed.\91\
    \91\ Interviews in Guangdong, Dec. 1998-Jan. 1999 and Chongqing, 
Dec. 1999-Jan. 2000.
    c. Interference.--The majority of interviewees identified 
interference by administrative organs and the Chinese Communist Party 
as the greatest difficulty encountered in administrative litigation. 
Such interference may occur during the entire course of handling an 
administrative case, but is especially common before the case is 
accepted. At subsequent stages, judges may be pressured to uphold the 
administrative act and aggrieved parties and/or courts pressured to 
have the case withdrawn.
    In some administrative cases where public security organs are 
defendants, the organs have reportedly manipulated the blurred 
distinction between their dual roles of conducting criminal 
investigations and imposing administrative sanctions. When these organs 
intend to bypass the human rights protections provided under the 
criminal justice system, they often claim that whatever sanctions 
imposed on suspects are administrative sanctions. When these sanctions 
are challenged in court through administrative litigation, the public 
security organs often influence judges to reject the cases on the 
ground that the court lacks jurisdiction because the sanctions are not 
administrative acts but acts of criminal investigation.\92\
    \92\ Dong Hao, [Some Thoughts about Reforming Multiple 
Responsibilities System of Our Country's Judicial Organs, ZHONGGUO 
FAXUE CHINA'S LEGAL STUDIES], No. 4, 1997, 24, at 26.
    Chinese judges are susceptible to pressure exerted by 
administrative organs and the Chinese Communist Party because courts' 
financial arrangements including courts' budgets, judges' salaries and 
welfare benefits as well as appointment and dismissal of judges are 
determined by people's governments at corresponding levels, which are 
ultimately controlled by the local party committees.\93\
    \93\ For discussion of constraints on judicial autonomy, see 
Stanley Lubman, Bird in a Cage: Chinese Law Reform After Twenty Years, 
20 J. INTL. L. BUS. 383, 394-98 (2000); He Weifang, [The Realization of 
Social Justice Through Judicature: A Look at the Current Situation of 

             III. The Future of RETL and Concluding Remarks

    In light of the legal and human rights problems of RETL, many 
scholars call for abolition or fundamental reform of RETL.\94\ Some of 
those who support abolition of RETL suggest amending the SAPR to 
increase the maximum period of administrative detention from 15 days to 
a month.\95\ Offenders of ``minor crimes'' may be detained for up to a 
month under the SAPR whereas other offenders may be punished under the 
Criminal Law, which provides that criminal detention should last from 1 
month to 6 months.\96\ As there is no gap between these two types of 
detention, there is no need to have RETL.\97\
    \94\ See e.g. Shen Fujun, supra note 37; Tao Jigang, supra note 39, 
at 12; Ma Kechang, supra note 39, at 7-8; Chen Zexian, supra note 56; 
Chen Xingliang, [Dual Tasks for Criminal Revision: Change of Value and 
JOURNAL], No.1, 1997, 55, at 56-60; Chen Guangzhong and Zhang Jianwei, 
[The UN's International Covenant on Civil and Political Rights and Our 
Country's Criminal Litigation], ZHONGGUO FAXUE [CHINA'S LEGAL STUDIES], 
No. 6, 1998, 98, at 108; Chen Ruihua, supra note 37, at 669-73.
    \95\ See supra Part I.B.
    \96\ Criminal Law, supra note 1, art. 42.
    \97\ See Shen Fujun, supra note 37, at 19; Chen Zexian, supra note 
56, at 36; Chen and Zhang, supra note 94, at 108. See also Chen 
Xingliang, supra note 37, at 700.
    If the RETL is not abolished, the system should be fundamentally 
reformed. The maximum detention period should be reduced from 4 years 
to one\98\ or 2 years.\99\ Imposition of these punishments should not 
be decided by public security organs but by courts whose decisions are 
subject to appeal.\100\ If possible, the system should be incorporated 
into the Criminal Law by establishing a new type of punishment called 
``police orders'' or ``public safety orders'' which are similar to 
community-based orders in western countries.\101\
    \98\ See Chen and Zhang, supra note 94, at 108.
    \99\ See Chen Zexian, supra note 56, at 35.
    \100\ See Chen and Zhang, supra note 94, at 108
    \101\ See Ma Kechang, supra note 39, at 7-8; JIANFU CHEN, supra 
note 62, at 193; Chen Xingliang, supra note 94, at 56-60; and Chen and 
Zhang, supra note 94, at 108.
    The reform measures stated in the preceding paragraph, although 
they would alleviate some of the problems in the current system, would 
not effectively resolve the human rights problems presented by RETL. 
Designating courts as the authorities to decide whether or not RETL 
should be imposed will be an effective reform measure if and only if 
the courts can make these decisions independently. Although the Chinese 
courts are undergoing a 5-year reform program, the problem of extra-
judicial interference will not be resolved in the near future, because 
the solution is necessarily linked to both political reform and changes 
in Chinese legal culture.\102\
    \102\ The Supreme People's Court launched a Five-Year Court Reform 
Plan in October 1999. See China's Supreme Court Plans Greater Autonomy 
For Judges, CHINAONLINE, Oct. 26, 1999, available in LEXIS, News 
Library, News Group File.
    The revisions of the Criminal Law and the Criminal Procedure Law 
marked the continued maturing of Chinese legality to reflect changed 
social and economic conditions. Yet the current Criminal Procedure Law 
only offers limited human rights protections, and it remains unknown 
when the legislation will be completely brought in line with 
international norms. The recognition of criminal suspects' right to 
keep silence, expressed in a regulation issued in Liaoning Province, 
gives hope of a trend toward greater incorporation of international 
human rights norms into the Chinese criminal justice system.\103\ 
Integration of RETL into the Criminal Law would at least have the 
advantage of subjecting RETL to human rights protections already 
provided in the Criminal Procedure Law.
    \103\ See China: New Regulation Sees Introduction of Criminal 
Suspects' Right to Silence, XINHUA NEWS AGENCY, BBC WORLDWIDE 
MONITORING, Nov. 22, 2000, available in LEXIS, News Library, News Group 
    The incorporation of RETL into the Criminal Law ought not obscure 
the problems that it would continue to present, especially in light of 
the need to implement even the existing safeguards against official 
arbitrariness that are contained in the Criminal Procedure Law. After 
extensive investigations in six selected provinces, autonomous regions 
and cities, namely, Tianjin, Inner Mongolia, Heilongjiang, Zhejiang, 
Shaanxi and Hubei, the National People's Congress Standing Committee 
concluded that the Criminal Procedure Law has not been fully 
implemented since its revision in 1996. Over-extended detention of 
criminal suspects and forced confession are still ``salient problems'' 
in many parts of the country. Judges, procuratorates, and public 
security organs restrict defense lawyers' activities by obstructing the 
lawyers to meet with their clients and to access court files relating 
to their cases. The National People's Congress Standing Committee 
attributed this unsatisfactory implementation to law enforcers' 
``erroneous understanding'' of the law. These enforcers regard the law 
as ``too advanced'' for China.\104\ Against this backdrop, 
incorporating RETL into the Criminal Law would only subject the system 
to minimal human rights protections that are only available at the 
discretion of law enforcers. RETL is such a major anomaly in a legal 
system that is supposed to be ruled by law, that, the mechanism should 
be abolished.
    \104\ See Official Admits Detention, Forced Confessions A Major 
2000, available in LEXIS, News Library, News Group File.
    I expressed the above views at the Seminar on Punishment of Minor 
Crimes, which was jointly organized by the Chinese government and the 
United Nations Office of the High Commissioner for Human Rights in 
February 2001. Since then, the Chinese government has announced its 
plan of drafting a law on RETL to improve the name, targets, and 
implementation mechanisms of RETL.\105\ But it appears to have ruled 
out abolition. Wang Yunsheng, Director of the Ministry of Justice's 
Bureau of Re-education Through Labor, explained, ``For such a populous 
Nation as China, the [RETL], which aims at stopping those on the verge 
of committing serious crimes, is an effective one for reducing crime.'' 
    \105\ See Speed Urged for Judicial System Laws, CHINA DAILY, Dec. 
24, 2001; Beijing to Introduce Re-education Through Labor Law This 
Year, supra note 42.
    \106\ See China Reviews ``Re-education Through Labor'' System, 
DEUTSCHE PRESSE-AGENTUR, Feb. 5, 2001, available in LEXIS, News 
Library, News Group File.
    While the Chinese government's intent of not abolishing the RETL 
system is disappointing, its determination of improving the system is 
welcome. But the government must understand that any reforms that fall 
short of addressing the problems discussed here will negate its efforts 
in establishing a rule-of-law-based criminal system.
    I thank you again for inviting me to speak today and I look forward 
to answering any questions you may have.