[Joint House and Senate Hearing, 108 Congress]
[From the U.S. Government Publishing Office]
CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
ANNUAL REPORT
2004
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ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
__________
OCTOBER 5, 2004
__________
Printed for the use of the Congressional-Executive Commission on China
Available via the World Wide Web: http://www.cecc.gov
______
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CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
LEGISLATIVE BRANCH COMMISSIONERS
House
Senate
JIM LEACH, Iowa, Chairman CHUCK HAGEL, Nebraska, Co-Chairman
DOUG BEREUTER, Nebraska CRAIG THOMAS, Wyoming
DAVID DREIER, California SAM BROWNBACK, Kansas
FRANK WOLF, Virginia PAT ROBERTS, Kansas
JOE PITTS, Pennsylvania GORDON SMITH, Oregon
SANDER LEVIN, Michigan MAX BAUCUS, Montana
MARCY KAPTUR, Ohio CARL LEVIN, Michigan
SHERROD BROWN, Ohio DIANNE FEINSTEIN, California
DAVID WU, Oregon BYRON DORGAN, North Dakota
EXECUTIVE BRANCH COMMISSIONERS
STEPHEN J. LAW, Department of Labor
PAULA DOBRIANSKY, Department of State
GRANT ALDONAS, Department of Commerce
LORNE CRANER, Department of State
JAMES KELLY, Department of State
John Foarde, Staff Director
David Dorman, Deputy Staff Director
(ii)
C O N T E N T S
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Page
I. Executive Summary and List of Recommendations................. 1
II. Introduction: Corruption--The Current Crisis in China........ 6
III. Monitoring Compliance With Human Rights..................... 12
(a) Rights of Criminal Suspects and Defendants............... 12
(b) Protection of Internationally Recognized Labor Rights.... 27
(c) Freedom of Religion...................................... 34
(d) Freedom of Expression.................................... 45
(e) Economic, Social, and Cultural Rights.................... 55
(f) Freedom of Residence and Travel.......................... 62
IV. Maintaining Lists of Victims of Human Rights Abuses.......... 65
V. Development of Rule of Law and the Institutions of Democratic
Governance..................................................... 66
(a) Constitutional Reform.................................... 66
(b) Nongovernmental Organizations and the Development of
Civil Society.............................................. 70
(c) Access to Justice........................................ 72
(d) China's Judicial System.................................. 78
(e) Commercial Rule of Law and the Impact of the WTO......... 83
(f) Forced Evictions and Land Requisitions................... 91
VI. Tibet........................................................ 95
VII. North Korean Refugees in China.............................. 102
VIII. Developments During 2004 in Hong Kong...................... 104
IX. Appendix: Commission Activities in 2003 and 2004............. 107
X. Endnotes...................................................... 110
CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
2004 ANNUAL REPORT
I. Executive Summary and List of Recommendations
The Commission finds limited progress over the past year in
some areas of human rights and rule of law in China, but also
finds severe and continuing problems on many of the issues
critical to ensuring that its citizens enjoy internationally
recognized human rights. Chinese government repression of free
religious belief and practice has grown more severe over the
past year. The Chinese government has continued its record of
violating workers' rights and punishing workers who advocate
for change. Chinese authorities continue to expend significant
resources to silence their critics and censor information from
sources the government cannot control or influence. The
Commission notes that China continues to enact legal reforms
that may provide the foundation for stronger protection of
rights in the future. However, the monopolization of power
under a one-party system and the resulting absence of
democratic accountability have led to widespread corruption and
a loss of faith in government. Together these cascading
problems frustrate the efforts of ordinary Chinese citizens to
claim their rights under the Constitution and law, and hinder
the implementation of legal reforms adopted since 1979.
In March 2004, the National People's Congress amended
China's Constitution to guarantee human rights for China's
citizens. This step is a positive development, but the Chinese
Communist Party will now have to deliver some measurable
improvements in human rights to maintain its own legitimacy.
The government and Party must also create the legal mechanisms
necessary to enforce this and other constitutional guarantees.
Without these mechanisms, the Chinese leadership demonstrates
its continued unwillingness to allow the Chinese people to
exercise their constitutional rights, freely voice their
beliefs, desires, and complaints, or take a meaningful role in
their government. This reluctance was particularly evident in
recent backward-stepping policies designed to move Hong Kong
away from the promised ``high degree of autonomy'' and to delay
developing the democratic institutions that most Hong Kong
people support.
Since taking office in 2003, China's new leadership has
gradually moved away from the ``economic growth at any price''
strategy of the past and toward a new ``populism.'' This shift
has been accompanied by substantial efforts to grapple with
HIV/AIDS and a failing public health infrastructure, alleviate
poverty, and address
serious fiscal and governance issues burdening China's rural
poor. Chinese women are benefiting from new economic
opportunities, but poverty in rural areas disproportionately
harms women. Chinese law has begun to recognize and offer
redress for problems like domestic violence, marital rape, and
sexual harassment.
The Chinese government continues to detain and imprison
Chinese citizens for peacefully exercising their rights to
freedom of expression, association, and belief. Coerced
confessions, lack of access to defense counsel, law enforcement
manipulation of procedural protections, pervasive presumption
of guilt by law enforcement officials, judges, and the public,
and extra-judicial pressures on courts continue to undermine
the fairness of the criminal process in China. In the wake of
several abuse scandals, Chinese criminal justice organs
launched a coordinated campaign in 2003 and 2004 to improve
public relations and assuage public anger over some law
enforcement abuses. The campaign has set a more positive tone
for discussion of defendant rights and produced some limited
results. However, lack of professionalism in many law
enforcement agencies and courts, public pressure on the
government to address rising crime rates, and leadership
efforts to maintain Party power and social stability are likely
to limit the impact of these initiatives in the short term. As
they debate key reforms to China's criminal justice system,
Chinese scholars, judges, and officials continue to look to
foreign models and are actively seeking exchange with foreign
counterparts on criminal justice issues.
Working conditions in China and the government's lack of
respect for internationally recognized worker rights remained
largely unchanged over the past year. Government implementation
of labor laws, regulations, and policies continues to fall well
below international norms in a number of areas. The Chinese
government denies Chinese citizens the right to organize freely
and to bargain collectively; it continues to imprison labor
leaders and suppress worker efforts to represent their own
interests; it continues to discriminate against migrant
workers; and it has developed a system that encourages forced
labor. Child labor remains a significant problem in China. In
addition, unhealthy and unsafe conditions are pervasive in
Chinese workplaces.
The Party intensified its crackdown against free religious
belief and practice during 2003 and expanded the campaign
during 2004. The Commission has welcomed China's progress
toward developing a system based on the rule of law, but in the
case of religion, the Chinese government uses law as a weapon
against believers. Hundreds of unregistered believers, and
members of spiritual groups such as Falun Gong, have endured
severe government repression in the past year. Many
unauthorized places of worship have been demolished. The
Chinese government has tightened its repression of unregistered
Catholic religious practice and believers. Protestant house
church congregations have suffered continued government
intimidation and harassment, with reports of beatings and
killings. The Party continues its ongoing campaign to transform
Tibetan Buddhism into a doctrine that promotes patriotism
toward China, and repudiates the religion's spiritual leader,
the Dalai Lama. The Chinese government continues to strictly
regulate Islamic education and practice, particularly in
Xinjiang, where authorities prevent Uighur Muslim children from
developing a strong Islamic identity and punish adult Muslims
for engaging in unauthorized religious activity.
Chinese authorities continue to impose strict licensing
requirements on publishing and news reporting. Authorized
publishers are subject to censorship; unauthorized publishers
are subject to punishment. China's government continues to
harass, intimidate,
detain, and imprison those who express opinions that the Party
deems objectionable. Although the number and variety of
government-controlled information sources continue to increase,
the Chinese government attempts to prevent Chinese citizens
from accessing news from foreign sources, often with help from
foreign and Chinese companies that must either impose political
self-censorship or be shut down. Chinese citizens must rely on
resources and technology that organizations outside of China
provide to circumvent government Internet censorship.
Forced evictions in urban areas and the requisition of
farmland in rural areas are fueling anger at government
officials and developers and generating a growing stream of
citizen petitions, legal disputes, and protests across China.
Despite central government efforts to curb illegal land
transactions and abuses, corruption remains rampant. Procedures
and compensation standards are weighted heavily in favor of the
government and developers and do not adequately protect the
rights and interests of those whose land is requisitioned.
The hukou (household registration) system remains a key
component of the caste-like divide in Chinese society between
urban and rural residents. The Chinese government continues to
liberalize the hukou regime, but some of these reforms are
slowly shifting the existing system into a set of officially-
recognized class divisions based on wealth.
Access to justice remains a serious problem in China.
Although the government is making strides to enhance the
professional quality of the Chinese judiciary, scarce legal
resources and the intermingled nature of government and private
legal services in rural areas limit equitable access to the
legal system. The Chinese judicial system continues to be
plagued by both extra-judicial interference and internal
administrative practices that constrain the independence of
judges and undermine court effectiveness. A closed, non-
transparent, and inefficient network of thousands of ``letters
and visits'' offices, where citizens can petition their
government, serves as a dysfunctional alternative to the legal
system for most Chinese citizens. The Chinese government's
progress in establishing a nationwide legal aid system over
recent years is a positive step toward developing the rule of
law, but government efforts are limited by the failure to fund
local institutions properly.
The visit to China by the Dalai Lama's envoys that began on
September 12 creates an important opportunity to address
obstacles and achieve progress through dialogue. Chinese
leaders misrepresent the Dalai Lama's offer to accept bona fide
autonomy as an attempt to gain independence in a ``disguised
form,'' even though he has stated that a solution can be based
on China's Constitution. Politically, Tibetan rights to
constitutionally guaranteed freedoms of speech, religion, and
association are subject to strict constraints, but emerging
patterns suggest that local governments in some Tibetan areas
are relatively less repressive than others. Economically, most
Tibetans live in rural areas where they are marginalized by low
incomes, poor health care, and lack of economic opportunities.
Culturally, the increasing Han population in Tibetan areas
poses a significant challenge to Tibetan culture and heritage.
Recommendations
The Commission is working to implement the recommendations
made in the 2002 and 2003 Annual Reports until they are
achieved. The Commission makes the following additional
recommendations for 2004:
Human Rights for China's Citizens
The new CECC Political Prisoner Database is a
unique
resource for promoting human rights in China. Members
of Congress should make full use of the Database by
asking delegations from their states and districts that
may be traveling to China to present to Chinese
officials lists of political and religious prisoners
derived from the Database. They should also urge local
officials and private citizens involved in sister-state
and sister-city relationships with China to use
Database information to advocate vigorously for the
release of political and religious prisoners.
The Chinese government made efforts to combat
the practice of torture in the past year, but China
lacks the public institutions necessary to monitor and
expose law enforcement abuses. The President and the
Congress should continue to encourage public debate and
criticism of torture in China by pressing the Chinese
government to fulfill, without further delay, its
longstanding commitment to allow an unconditional visit
by the U.N. Special Rapporteur on Torture.
China's xinfang (``letters and visits'' )
system is at the center of severe miscarriages of
justice, but foreign governments and observers
understand it poorly. The President and the Congress
should encourage exchanges between Chinese xinfang
officials and U.S. academics, lawyers, and NGOs
directed at regularizing procedures and moving disputes
into the legal system.
Chinese scholars, judges, and officials are
debating reforms to China's criminal justice system and
actively seeking exchanges with the United States and
other countries on criminal justice issues. The
President and the Congress should continue to encourage
reform of China's criminal justice system by sponsoring
more exchanges that focus on the role of defense
lawyers and discuss internationally recognized criminal
justice standards such as the presumption of innocence
and the right to remain silent.
The future of Tibetans and their religion,
language, and culture depends on fair and equitable
decisions about future policies that can only be
achieved through dialogue. The Dalai Lama is essential
to such a dialogue. The President and the Congress
should continue to urge the Chinese government to
engage in substantive discussions with the Dalai Lama
or his representatives.
Religious Freedom for China's Faithful
The freedom to believe and to practice one's
religious faith is a universal and essential right. The
Chinese leadership must open itself to dialogue on
establishing true freedom of religion for all its
citizens. The President and the Congress should foster
and support such a dialogue by urging Chinese leaders
at all levels to meet with religious figures from
around the world to discuss the positive impact on
national development of free religious belief and
religious tolerance, and to urge the release of
religious prisoners.
The Chinese government continues to use anti-
cult regulations to oppress believers who choose not to
worship within the confines of government-authorized
religion, and prohibits the free publication and
importation of the Bible, the Koran, and the sacred
texts or teachings of other religious and spiritual
groups, including those of the Falun Gong. The
President and the Congress should continue to urge
China's leaders to eliminate all laws and regulations
that allow the arbitrary labeling of unregistered
religious and spiritual groups as cults, and to
eliminate all restrictions and controls on the freedom
to produce, read, and distribute the religious or
spiritual texts of one's choosing.
Labor Rights for China's Workers
The involvement of Chinese workers is
essential to efforts to improve workplace health and
safety programs in China. In addition, bringing Chinese
workplaces into compliance with international labor
standards requires cooperation among governments, the
private sector, and NGOs. The President and the
Congress should expand U.S. programs to improve worker
involvement in workplace health and safety; conduct
rule of law training and technical assistance in China
to help workers assert their rights under Chinese law;
and facilitate cooperation between and among private
industry, the NGO sector, and the Chinese and U.S.
governments with a view toward bringing Chinese labor
standards into compliance with international standards.
Forced prison labor violates both
international labor standards and U.S. laws when the
products of forced labor are exported to the U.S.
market. The President and the Congress should sponsor
and facilitate meetings of U.S. and Chinese officials
and NGOs to develop policy recommendations on
eliminating the use of forced labor in Chinese prisons
and detention facilities and to ensure the full
implementation of the 1992 Memorandum of Understanding
on Prohibiting Trade in Prison Labor Products with
China.
Free Flow of Information for China's Citizens
The rights to freedom of speech and freedom of
the press are internationally recognized and
constitutionally guaranteed, but Chinese citizens
generally remain unaware of the nature of these rights
and their government's violation of them. The President
and the Congress should fund programs to develop
technologies to enable Chinese citizens to access
Internet-based information that the Chinese government
currently blocks, as well as educational materials
regarding the rights conferred under international
human rights law with respect to freedom of speech and
freedom of the press.
The Chinese government uses technology, prior
restraints, intimidation, detention, and imprisonment
to chill free expression and control China's media. The
President and the Congress should urge the Chinese
government to eliminate prior restraints on publishing,
cease detaining journalists and writers, and stop
blocking foreign news broadcasts and Web sites.
Rule of Law and Civil Society
The Chinese leadership has publicly committed
itself to moving toward a market economy based on
internationally accepted principles of transparency,
accountability, and the rule of law. The President and
the Congress should support this goal by approving and
funding a commercial rule of law technical assistance
program for China through the Commercial Law
Development Program at the U.S. Department of Commerce.
Such a program should emphasize specific WTO
commitments, including transparency, deterrent criminal
enforcement of intellectual property rights, and
national treatment for goods and services.
Access to justice remains a serious problem,
particularly in rural China. The President and the
Congress should continue to fund programs directed at
improving the capacity of Chinese NGOs to train and
support rural legal workers and legal aid
organizations.
Chinese courts evaluate judicial performance
by using rote statistics on decided and reversed cases.
This has resulted in a passive judiciary dependent on
advisory opinions to decide cases. The President and
the Congress should encourage exchanges and cooperation
between U.S. and Chinese judges and court
administrators with a view toward fostering
administrative reform in the Chinese judiciary.
The Commission's Executive Branch members have participated
in and supported the work of the Commission, including the
preparation of this report. The views and recommendations
expressed in this report, however, do not necessarily reflect
the views of individual Executive Branch members or the
Administration.
This report was approved by a vote of 20 to 1.
II. Introduction: Corruption--The Current Crisis in China
Corruption in China is rampant. Large numbers of top-level
provincial and ministerial leaders have been driven from office
on
corruption grounds in recent years. In some cases, the
corruption of top leaders has encouraged and sheltered wide-
ranging networks of local officials who protect each other
against discovery and prosecution.\1\ This has led to a loss of
confidence on the part of many Chinese citizens in the honesty
of government and Party officials, despite the Party's effort
to respond to notorious corruption cases with repeated
campaigns for clean government.
The one-party system remains the key obstacle to rooting
out corruption. China needs broader forms of democratic
accountability and free access to information to eliminate
official corruption and restore confidence in government. Some
leaders within China comprehend the necessity for change and
understand that inflexibility, secrecy, and a lack of
democratic oversight pose the greatest challenges to rooting
out the corruption that threatens China's continued
development. While the interim steps taken by the Communist
Party to date may generate some improvements at the margins,
solving the problem of corruption requires narrowing the gap
between China's forward-looking economic reforms and its
backward-looking political system.
Corruption in China is growing at all levels and
increasingly
involves senior officials as well as collusion among officials,
or between officials and private entrepreneurs or collaborators
overseas.\2\ High-level leaders tried and convicted on major
corruption charges in the last 12 months include: Wang Xuebing,
former president and party secretary of the Chinese
Construction Bank;\3\ Mai Chongkai, former Chief Justice of the
High People's Court in Guangdong;\4\ and Wang Huaizhong, former
deputy governor of Anhui province.\5\ In all, 13 top officials
were convicted of corruption in 2003.\6\ Such developments have
created significant public concern. Before the National
People's Congress (NPC) annual meeting in March 2004, Xinhua
polled its readers to find out which issue should take priority
on the legislative agenda. More than 80 percent of respondents
chose corruption.\7\ Transparency International ranks China
among the worst countries in terms of domestic public
corruption.\8\ Economists estimate that the annual cost of
corruption to China may exceed 14 percent of gross domestic
product.\9\ A 2004 report by China's Auditor General shows
that, far from being limited to provincial officialdom,
embezzlement and misuse of public funds affects 41 of the 55
ministries and commissions under the State Council, amounting
to at least 1.4 billion yuan ($169.4 million) missing from the
total 2003 budget.\10\
Political protection of corrupt officials is a serious
problem in China. Chinese journalists have noted the phenomenon
of the local ``boss'' (yibashou) who personally controls
positions, wages, and lucrative opportunities for enrichment
within his region. Officials operating under the boss's
umbrella of influence are often protected from prosecution
because the boss controls the anti-corruption institutions
themselves. An apparent example of political influence
exercised to defeat investigation and prosecution is the Zhou
Zhengyi case, discussed below.
Procurator General Jia Chunwang reported to the NPC in
March 2004 that his office opened investigations during 2003
into 39,562 cases of abuse of official power involving 43,490
individuals and prosecuted 22,761 cases involving 26,124
individuals.\11\ Over the same period, the office opened
investigations into 18,515 cases of embezzlement, bribery, and
misappropriation of public funds.\12\ Procuratorates opened
investigations into 2,728 senior officials at or above the
county level, as well as 167 cadres in charge of regional
bureaus and four cadres of provincial rank.\13\ Furthermore, in
a report to the NPC in March 2004, Xiao Yang, Chief Justice of
the Supreme People's Court, reported that 794 judges were
investigated for corruption in 2003, with 52 cases referred for
criminal prosecution.\14\
Corruption in the 2008 Olympics
The Chinese government has made the 2008 Olympics a
centerpiece of its international political program--a symbol of
joining the most modern and civilized nations on equal terms.
China fought hard to get the Olympics and therefore has a
strong incentive to meet the challenge of hosting them.
However, early indications of serious graft show that even the
Olympics have not been safe from China's corruption crisis.\15\
China's Auditor General reported to the NPC Standing Committee
in June 2004 that of the 131 million yuan ($15.8 million)
appropriated since 1999 for the work of the Beijing 2008
Olympics organizing committee, 109 million yuan had been
improperly diverted to building homes for the committee's
staff.\16\ According to an official in China's Olympics
organizing committee, an earlier review by the special audit
department established to monitor Olympic spending failed to
disclose the misdeeds, probably because that department's
powers do not extend to investigating the Beijing City Sports
Bureau, where the fraud occurred.\17\ This jurisdictional
anomaly in the Olympics auditing process demonstrates the way
in which tangles of overlapping laws and supervisory
organizations guarantee the opacity that allows corruption to
thrive.\18\
The National Audit process that uncovered this fraud in the
Olympics may ultimately grow into a corruption-fighting tool.
The Chinese Constitution requires that the State Council
establish an auditing body to supervise revenues and
expenditures of the Council itself and all of its subordinate
entities. It further requires that the auditing entity
``independently exercise its power to supervise through
auditing in accordance with law, subject to no interference by
any other administrative organ or any public organization or
individual.'' \19\ The National Audit Administration, led by Li
Jinhua, the current Auditor General, performs this
constitutional supervisory function, and its report this year
attracted significant media attention.\20\ Although the unitary
nature of the Chinese state precludes separation of powers and
thus real independence, Deputy Auditor General An Linghu
recently said that the last two premiers have never tried to
change anything in the reports. While lack of transparency
precludes revealing whether audits are adjusted to protect
political figures, announced plans to make all audit reports
public in the future may help limit such manipulation.\21\
According to a Xinhua report attributed to Zhang Qiuxia, a
National Audit Administration director, the office plans to
include the Central Committee of the Party in future
audits.\22\
Corruption in the Countryside
Corruption in rural areas harms China's poorest citizens. A
vivid account of the toll taken by corrupt officials who
manipulate taxes and impose random fees on farmers appeared in
a recent book, An Investigation of China's Peasantry.\23\
Officials profiting from their official power to allocate land
use have displaced thousands. An example of this kind of abuse
is the plight of 20,000 farmers from a minority area in Hebei
province who were relocated to make way for the construction of
a reservoir.\24\ The municipal Party secretary failed to pay
compensation to the displaced farmers and instead used the
funds to build luxurious local offices. When a group of farmers
traveled to Beijing to petition the central government for
redress, they were beaten by police, and some were sentenced to
re-education through labor (laojiao).
In this and other cases, local officials have used police
like a personal militia to suppress questions about their
financial dealings, and have used re-education through labor
and other forms of administrative detention to silence
inconvenient protestors. Such tactics directly undermine the
central government's fight against corruption nationwide.
Dispatching local police to Beijing to silence petitioners
extends local cover-ups to the capital itself. The problem
extends well beyond land-taking. Funds transferred to local
governments for disaster relief or education subsidies have
also been targets for corrupt officials.\25\ From 2002 to 2003,
disaster funds misused in poverty-stricken Shaanxi province
amounted to 5,686,000 yuan ($688,000).\26\ In Guangdong
province, altogether 35 officials have been accused this summer
of misappropriating educational funds.\27\ According to the
Guangdong Province Disciplinary Inspection Commission, local
education departments used the money for banquets and received
kickbacks on the purchase of items like textbooks.
Corruption in the Cities
Corruption in China's cities distorts the urban plan, often
harming poorer residents and discarding historical districts in
favor of upscale housing and shopping areas. As in rural areas,
local officials control the allocation of land use rights and
use that control to benefit themselves and their families. In
one example, tycoon Zhou Zhengyi obtained low-cost development
rights to a project in Shanghai by manipulating the law with
the help of local officials, then mortgaged his rights in the
property to major banks and used the money to buy Hong Kong
listed companies, which would buy the project back.\28\ The
local officials who had approved Zhou's
application for the land ultimately received shares in the
listed company that owned the development.\29\ When a bank
investigation of some of the underlying loans brought the
scheme to light, Zhou was arrested and tried in secret in May
2004. He received a relatively mild three-year sentence for
falsifying registered capital
reports and manipulating share prices. Many Shanghai citizens
evicted because of Zhou's development scheme were not satisfied
with the small compensation offers he made for their property
or the replacement housing in distant suburbs, and some have
filed suits against the Shanghai government.\30\
The power to allocate valuable city land for development
has been a source of wealth for the Shanghai elite over the
past decade. Those who have profited from this power naturally
resist any interference with its use. It is therefore not
surprising that displaced residents in Shanghai, who are
contesting politically connected land developments, have
generally been unable to find lawyers to represent them. But
former lawyer Zheng Enchong, who had made a practice of
advising evicted residents in urban renewal cases, worked with
some of the residents evicted from the land in the Zhou Zhengyi
case. His work on eviction cases had earlier resulted in the
Shanghai Bureau of Justice refusing to renew his license to
practice law.\31\ In June 2003, Zheng was arrested and charged
with disclosing state secrets. According to an unofficial copy
of the judgment in that case, the charge was based on a fax
Zheng sent to a New York-based human rights NGO concerning a
small demonstration in Shanghai.\32\ Zheng's appeal of his
three-year sentence was denied in December. In reporting his
conviction, Xinhua portrayed Zheng Enchong as a professional
outlaw who had been refused his license renewal for cause and
not as an ``anti-corruption'' hero as described in the foreign
media.
Fighting Corruption in a One-Party State: Formal Institutions and
Political Controls
Two separate, but parallel, systems have evolved in China
since 1979 for the supervision of state administration and
evaluation of cadres for their political integrity: a system of
``administrative supervision'' within the government and a
system of ``discipline and inspection'' within the Party. In
1993, these two vertical systems were merged at the top, but
each continued to operate under separate regulations.\33\ Party
officials who violate standards of behavior are punished
according to the Party charter. Non-Party officials who violate
standards of behavior, including those working in Party
offices, are punished according to state civil service
regulations. This dual-track system is rooted in Leninist
theory and tracks a slogan based on the preamble of the Party
charter and included in Article 2: ``The Party Must Manage the
Party (dang yao guan dang).'' In clinging to this concept, the
Party may have fostered a sense of impunity among corrupt
cadres.
Administrative supervision
The Law on Administrative Supervision, promulgated in 1997,
formalized the ``administrative supervision'' system within
government. This law calls for supervising entities to set up
``informing and reporting systems'' and to hear citizen
accusations against public employees. Regulations issued under
this law detail procedures for the investigation of tips and
handling of evidence, and protection of the investigators and
the investigated.\34\ The law itself gives supervising entities
the jurisdiction to issue the dreaded ``dual summons'' to
public officials under investigation: an order to present
themselves at a designated time and place to explain and
clarify the matters under investigation.\35\ When such an order
comes down, the target official knows that much of the
investigation of his or her activities has been completed and
enough evidence has been found to make sanction or prosecution
likely.\36\
While the law seeks to protect state investigators from
political revenge, it makes supervisors responsible not only to
a higher supervisory entity, but also to the local government--
an entity likely to have interests adverse to the project of
supervision.\37\ The legal authority of the administrative
supervisory system is limited to collecting information,
issuing cease and desist orders to offenders, and recommending
administrative sanctions in certain cases.
Discipline and inspection
The Party's new ``Inner-Party Supervision Regulations,''
drafted over the course of 13 years and finally issued in
February 2004, are an attempt to systematize constraints on the
authority of Party leaders. The linchpin of the regulations is
replacement of strict hierarchical controls with ``inner-Party
democracy,'' an elaborate system under which Party leaders at
all levels accept the supervision of the larger pool of Party
members that they represent. For example, Article 13 requires
that important decisions, including hiring and firing, be
debated by the entire group and put to a vote. This voting
exercise is designed to reduce the unilateral power of Party
``bosses,'' who have been able in several notorious cases to
use their powers to both enrich themselves and create broad
umbrellas of influence. Hu Jintao's highly publicized
presentation of the Politburo's work report to the Central
Committee for approval in October 2003 was designed to show
Party cadres and the public that ``inner-Party democracy''
applies to all levels. While China's leaders may expect the new
regulations to solve the Party's internal problems, given the
time required to break down internal
resistance to the new constraints on power, and the lack of an
independent authority to ensure enforcement, it is unlikely
that the Party has found a real solution to the problem of
corruption among its leaders.
Two of the most powerful anti-corruption tools in other
countries, public disclosure of assets and an independent
press, have no real role in the new Supervision Regulations.
Article 33 of the regulations lends token support to
``supervision by public opinion'' by encouraging Party
organizations and leading cadres to leverage the news media to
fight corruption. However, the next article requires that media
engaging in such supervision ``uphold the party spirit, observe
media discipline and professional ethics and grasp the correct
orientation in guiding public opinion''--all phrases long used
to limit the free expression of criticism in the press.\38\
The Party also recently updated disciplinary procedures and
punishments for cadres at all levels. In February 2004, the
Party Central Committee promulgated ``Chinese Communist Party
Regulations on Disciplinary Punishment,'' updating temporary
regulations issued in 1997. Chapter VI, ``Acts in Breach of
Political Discipline,'' lists infractions that may lead to expulsion
from the Party. These include such corrupt behaviors as: hiring the
children of friends; taking gifts, stealing state property,
driving luxury cars, or accepting gambling trips; taking a cut
of funds donated for charitable causes or allocated to
compensate residents for land requisition; smuggling; and
illegally transferring land use rights. The
organization of offenses related to corruption is apparently
designed to harmonize with the PRC Criminal Law on the same
subjects. This parallel list of offenses reminds Party members
that the Criminal Law looms beyond a possible expulsion; the
Criminal Law provides for capital punishment for the most
serious crimes related to corruption.
The current leadership's plans for solving China's
corruption crisis lack the crucial element of an independent
authority to take final jurisdiction of corruption crimes out
of the hands of the Party. Despite continuing efforts at
building a control system of ``democratic supervision'' within
the Party, without transparency and true democratic oversight,
it is unlikely that even the most elaborate self-inspection
system can be effective.
III. Monitoring Compliance With Human Rights
III(a) Rights of Criminal Suspects and Defendants
FINDINGS
The Chinese government continues to detain and
imprison Chinese citizens arbitrarily for exercising
their rights to freedom of expression, association, and
belief.
Coerced confessions, lack of access to defense
counsel, law enforcement manipulation of procedural
rules, pervasive presumption of guilt by law enforcers,
judges, and the public, and extra-judicial influences
on courts continue to undermine the fairness of the
criminal process in China.
Chinese criminal justice organs launched a
coordinated campaign in 2003 and 2004 to improve public
relations and assuage public anger over some common law
enforcement abuses. The campaign has set a more
positive overall tone for defendant rights and produced
some limited practical results. However, lack of
professionalism in many law enforcement agencies and
courts, public pressure on the government to address
rising crime rates, and leadership efforts to maintain
Party power and social stability are likely to limit
the impact of these initiatives in the short term.
Chinese scholars, judges, and officials are
looking to foreign models as they debate key reforms to
China's criminal justice system and are actively
seeking exchange with foreign counterparts on criminal
justice issues.
China's ``Strike Hard'' Anti-Crime Campaign
Crime rates in China have generally been on the rise in
recent years.\39\ To address this problem, law enforcement and
judicial officials continued China's ``strike hard'' anti-crime
campaign in late 2003 and 2004.\40\ Traditionally, ``strike
hard'' campaigns have been intense national crackdowns of fixed
duration associated with unusually harsh law enforcement
tactics, quick trials, and violations of criminal
procedure.\41\ Officially launched in April 2001, the current
campaign appears to have evolved into a lower-intensity but
permanent feature of the political landscape.\42\ Within this
overall ``strike hard'' framework, prosecutors and public
security agencies launch periodic crackdowns targeting certain
locales or particular crimes.\43\ Chinese scholars and lawyers
have expressed concern that efforts to meet law enforcement
targets during such crackdowns have led to wrongful
convictions.\44\
The Party maintains ``strike hard'' activities in part
because it believes that anti-crime campaigns are popular with
the public and enhance Party legitimacy. Public complaints
about police inefficiency and the handling of several notable
criminal cases in the last year suggest significant popular
dissatisfaction with the performance of law enforcement
agencies and courts.\45\ The public also seems to have a
limited appetite for procedural protections that result in
lenient treatment for criminals.\46\ Numerous polls suggest
that the general public rates security as a major concern and
supports tough measures to address crime.\47\ Thus, while past
experience indicates that ``strike hard'' campaigns have done
little to stem the rising tide of crime and corruption in
China,\48\ the Party perceives them as necessary to maintain
legitimacy and satisfy popular demand for strong action.\49\
National Chinese crime statistics offer a mixed picture of
law enforcement trends in 2003. According to official sources,
Chinese courts handled a total of 735,535 criminal cases in
2003, an increase of 1.2 percent over 2002.\50\ Reflecting the
leadership's stated concern with official crime, law
enforcement agencies and courts highlighted efforts to combat
corruption. Prosecutors claim to have opened investigations of
43,490 individuals for abuse of power and dereliction of duty
in 2003.\51\ People's courts report that they adjudicated
nearly 23,000 cases involving official crime in the same
period.\52\ Officially, the number of violent crimes and
corruption cases decreased slightly in 2003.\53\ Public
security officials recently admitted, however, that only 42
percent of 4.39 million reported crimes were solved last
year,\54\ and many reports suggest that crime is on the rise in
specific regions. As such, official claims that the ``strike
hard'' campaign has reduced crime rates should be evaluated
with caution.
Political Crimes
The Chinese Constitution recognizes the rights to freedom
of assembly, expression, and association.\55\ The Chinese
government, however, routinely exploits vaguely defined crimes
to detain and charge individuals for the non-violent exercise
of these rights.\56\ Victims of this practice include Chinese
citizens who lead peaceful labor protests, attempt to form
political parties, exercise their religious beliefs, post
articles on the Internet relating to political
reform, or petition for redress of their grievances.\57\
Chinese prosecutors often charge these individuals with crimes
such as ``endangering state security,'' \58\ ``subversion,''
\59\ or, in the case of Tibetans and Uighurs, ``inciting
splittism,'' \60\ even if their acts are non-violent and pose
no threat to the state. For example, essayist Luo Yongzhong was
sentenced to three years in prison last year for ``incitement
to subversion'' and ``attacking the socialist system'' after
posting essays on the Internet criticizing Jiang Zemin's
``Three Represents'' theory.\61\
The definition of crime in the PRC Criminal Law conveys the
continued political orientation of the Chinese criminal justice
system:
A crime refers to an act that endangers the
sovereignty, territorial integrity and security of the
State, splits the State, subverts the State power of
the people's democratic dictatorship and overthrows the
socialist system, undermines public and economic order,
violates State-owned property, property collectively
owned by the working people, or property privately
owned by citizens, infringes on the citizens' rights of
the person, their democratic or other rights, and any
other act that endangers society and is subject to
punishment according to law.\62\
A significant number of individuals, including Yao Fuxin,
Xiao Yunliang, Rebiya Kadeer, Tenzin Deleg, Su Zhimin, and
others continue to serve long prison sentences for political
offenses. Chinese authorities released several notable
political prisoners over the past year, including Xu Wenli,
Wang Youcai, Phuntsog Nyidron, and Liu Di,\63\ but authorities
also initiated a new wave of arrests and convictions of
Internet essayists, legal advocates, journalists, religious
adherents, and other political activists. Over the past year,
authorities also held numerous individuals incommunicado, and
without any apparent legal basis, for peacefully expressing
their political views.\64\ For a discussion of new arrests and
convictions for political crimes, see Section III(c)--Freedom
of Religion, Section III(d)--Freedom of Expression, and Section
VI--Tibet. While noting significant difficulties in determining
the number of individuals currently imprisoned for political
crimes, several credible analysts estimate that it is somewhere
in the range of 10,000 to 25,000.\65\
Although the National People's Congress (NPC) removed the
crime of ``counterrevolution'' from the PRC Criminal Code in
1997 and replaced it with the crime of ``endangering state
security,'' \66\ approximately 500 individuals convicted of
``counterrevolution'' before 1997 remain imprisoned in
China.\67\ Under a 1997 Supreme People's Court (SPC) notice
that has been applied in practice to counterrevolutionary
prisoners, individuals convicted of ``endangering state
security'' are much less likely than other prisoners to receive
sentence reductions and parole.\68\ Observers had hoped that
China would make some progress last year on parole and sentence
reductions for prisoners serving time for
``counterrevolutionary crimes,'' arguing that many of these
prisoners were convicted for acts that would no longer be
considered crimes.\69\ However, despite foreign governmental
and non-governmental overtures on this issue, the Chinese
government has refused to re-evaluate its position.\70\
Arbitrary Detention
The United Nations Working Group on Arbitrary Detention
identifies a detention as arbitrary (1) when there is clearly
no legal basis for the deprivation of liberty (for example when
individuals are kept in detention after the completion of their
prison sentences or despite an amnesty law applicable to them,
or in violation of domestic law or relevant international
instruments); (2) when individuals are deprived of their
liberty because they have exercised the rights and freedoms
guaranteed in certain provisions of the United Nations
Declaration on Human Rights (UNDHR) or the International
Covenant on Civil and Political Rights; and (3) when non-
compliance with the standards for a fair trial set out in the
UNDHR and other relevant international instruments is
sufficiently grave as to make a detention arbitrary.\71\ The
International Covenant on Civil and Political Rights provides
that ``[a]nyone arrested or detained on a criminal charge shall
be brought promptly before a judge or other officer authorized
by law to exercise judicial power'' and ``[a]nyone who is
deprived of his liberty by arrest or detention shall be
entitled to take proceedings before a court, in order that that
court may decide without delay on the lawfulness of his
detention and order his release if the detention is not
lawful.'' \72\
Arbitrary detention in China takes a number of forms,
including detention and incarceration for non-violent political
and religious expression, illegal extended detention that
violates China's own procedural laws, and detention that in
practice is not subject to prompt judicial review, including
incommunicado detention, disappearances and detentions during
short-term security sweeps, and forms of administrative
detention such as re-education through labor, forced
psychiatric commitment, and forced commitment for drug
detoxification.
Illegal extended detention in the criminal process
Law enforcement authorities often hold criminal suspects
and defendants in pre-trial detention for periods exceeding
those permitted by Chinese law and international human rights
norms and standards. In some cases, they also detain defendants
for long periods after trial while courts decide on a judgment.
This practice often contravenes provisions in the PRC Criminal
Procedure Law that require judgments to be rendered no more
than two and one-half months after prosecution. The following
cases are selected examples of extended detention in late 2003
and 2004:
Dissident Yang Jianli waited from August 2003
until May 2004 for a court to hand down a judgment
after his trial on charges of illegal entry into China
and espionage. Before his trial, Yang was held for
nearly 15 months in pre-trial detention, much of it
incommunicado. The U.N. Working Group on Arbitrary
Detention ruled that his detention was arbitrary and
violated international law.\73\
The Beijing Intermediate People's Court did
not hand down a judgment in the evidence fabrication
case of defense lawyer Zhang Jianzhong until December
2003, nearly 11 months after his trial. Before his
trial, Zhang was held in detention for nearly ten
months, the first two incommunicado.\74\
In November 2003, authorities released
Internet dissident Liu Di after she spent more than a
year in detention. Liu had written several Internet
articles critical of the government and the Party.
Police held her on suspicion of subversion, but
prosecutors rejected the case after a year for lack of
evidence and never filed formal charges against
her.\75\
In the spring of 2003, Chinese courts and law enforcement
agencies launched a major public campaign to eliminate
``illegal extended detention,'' \76\ which Chinese authorities
have identified as a major source of public discontent with the
criminal justice system.\77\ Frustrated by lack of progress,
law enforcement and court officials intensified the campaign in
the fall of 2003, setting time limits for the resolution of
extended detention cases and issuing a joint notice on
rectifying the problem of extended detention.\78\ The notice
provided tacit acknowledgement of many of the common abuses of
detention limits that outside observers have long
criticized.\79\ Throughout the campaign, domestic media
reported on sometimes shocking instances of extended detention,
including the case of a farmer who had been in custody for 28
years but had never been formally charged with a crime.\80\ The
significant media effort to promote the campaign has given
suspects and their families some official basis to protest
extended detention in individual cases.
In March 2004, the Supreme People's Procuratorate (SPP) and
the SPC reported that they had handled nearly 30,000 cases of
extended detention at all stages of the criminal process and
cleared nearly all outstanding cases.\81\ Both also announced
new reporting and control systems designed to prevent future
extended detention cases.\82\ Statistics on the number of
extended detention cases that have been cleared are impossible
to verify, and at least one credible Chinese observer told
Commission staff that contrary to media reports, there are
still many outstanding cases.\83\ Nevertheless, the observer
noted a belief that government efforts are sincere. Authorities
appear to have made some genuine progress in addressing the
procedural issue, although not always with favorable
substantive results. For example, two of the most well-known
cases of extended detention, those of Yang Jianli and Zhang
Jianzhong, were brought to a conclusion in 2003 with guilty
verdicts. Despite these developments, extended detention
problems continued in sensitive criminal cases throughout last
year, and arbitrary administrative detentions and security
sweeps continued as they have in previous years.
Disappearances, security sweeps, and house arrests
Public security has continued to arbitrarily detain or
restrict the personal freedom of activists, petitioners, and
other perceived security threats in the past year, particularly
during important public functions or sensitive anniversaries.
For example, during the NPC meetings in March 2004, security
authorities reportedly rounded up vagrants and petitioners and
held them in a Beijing stadium without any apparent legal
basis.\84\ In other cases, local police met petitioners who
traveled to Beijing for the NPC meetings at train and bus
stations and forcibly repatriated them to their home
provinces.\85\ Similar detentions were reported before the
meeting of the Party Central Committee in September 2004.\86\
The NPC meetings, the 15th anniversary of the 1989 Tiananmen
Square demonstrations, and the Central Committee meeting also
brought a disturbing series of arbitrary detentions of
dissidents and activists. For example, Dr. Jiang Yanyong, who
last year helped to expose the SARS crisis and who wrote a
letter in February 2004 calling on authorities to reassess the
official verdict on Tiananmen, was detained for nearly seven
weeks beginning on June 4.\87\ During the Tiananmen
anniversary, authorities also placed other activists and
dissidents, including Ding Zilin, Zhang Xianling, Yin Min,
Huang Jinping, Hu Jia, and Liu Xiaobo, under house arrest or
otherwise restricted their freedom of movement.\88\ None of
these individuals were charged with a crime or brought before a
judge for review of the lawfulness of their detention or the
restrictions imposed on them.
Re-education through labor
Under China's administrative detention system, public
security officials have the power to send individuals for ``re-
education through labor'' (laojiao, or RETL) for terms of up to
three years, with the possibility of a one-year extension. This
system violates internationally recognized human rights norms
for numerous reasons: (1) suspects are not entitled to a court
trial and in practice public security officials serve as
investigator, prosecutor, and judge, subject to only minimal
judicial oversight that is rarely applied; (2) the definition
of offenses subject to RETL are vague and easily manipulated by
police to silence individuals exercising their rights to
freedom of expression, association, and assembly; (3) RETL
detention terms can be longer than those for similar offenses
prosecuted under the formal criminal justice system; and (4)
the legal basis for RETL is questionable because an
administrative regulation established the system, while the PRC
Legislation Law requires all
restrictions on personal freedom to be established pursuant to
national law.\89\ Some critics also highlight the fact that
RETL detainees are subject to forced labor. [See Section
III(b)--Protection of Internationally Recognized Labor Rights--
Forced Labor].
Despite these problems, public security agencies have
expanded their use of RETL over the past decade. Regulations on
RETL issued in 2002 include new offenses not contained in
earlier RETL regulations,\90\ and the number of RETL detainees
has risen. According to several estimates, the number of RETL
detainees fluctuated between 150,000 and 200,000 in the early
to mid-1990s, but between 1999 and 2002 the number detained
ranged from 270,000 to 300,000.\91\ Scholars attribute the
increase in the number of RETL detainees to rising crime rates,
which have increased burdens on the formal criminal justice
system, and steady growth in the number and size of social
protests and disturbances in China.\92\ Some observers also
note that the gradual expansion of defendant rights in the
formal criminal justice system encourages police to rely more
heavily on administrative detention.\93\ Finally, the
government has used RETL in its repression of Falun Gong
adherents and Uighur Muslims in Xinjiang.\94\ Chinese observers
and U.S. scholars believe that between 2 percent and 10 percent
of RETL detainees are political detainees.\95\
In response to a rising tide of public, scholarly, and
official criticism and a petition to the NPC Standing Committee
challenging the legality of RETL, Chinese authorities appear to
be trying to improve public perceptions of RETL and bolster the
legal basis for maintaining it.\96\ Press reports over the past
year have highlighted government initiatives to institute
professional and educational training programs in RETL centers,
permit spousal visits, and establish a hearing system for RETL
cases with legal representation for detainees.\97\ The NPC is
also working on a national law called the ``Law on Correcting
Unlawful Acts.'' The draft law reportedly introduces reforms to
systematize the existing web of local RETL regulations,
eliminate outdated RETL offenses, make the definition of
remaining RETL offenses less vague, and address the concern
that some RETL terms are longer than those for similar acts
prosecuted in the criminal justice system.\98\ Drafters are
also reportedly debating provisions that would give judges,
rather than public security officers, the power to hand down
RETL sentences.\99\ Other pending legislation would eliminate
RETL as a form of punishment for selected categories of minor
public order offenses.\100\ These developments suggest that the
government intends to reform rather than eliminate RETL, at
least in the near term.\101\ According to Commission sources,
significant reform of the RETL system is likely.
Forced psychiatric detention
Law enforcement authorities have the power to forcibly
commit individuals to psychiatric facilities (ankang).\102\
Ankang centers are intended for the custody and treatment of
mentally ill offenders, but they have also been used to detain
mentally sound individuals who have angered or antagonized
authorities. The use or threat of ankang to punish dissidents
continued in 2004. For example, human rights activist Wang
Wanxing continues to be detained in an ankang center for
unfurling a banner in Tiananmen Square in 1992. His wife has
never been given a documented diagnosis of his mental
condition.\103\ In June 2004, authorities reportedly threatened
to commit human rights and AIDS activist Hu Jia to a mental
institution for his continued efforts to commemorate the
Tiananmen demonstrations.\104\ The use of ankang for political
detentions raises human rights concerns similar to those noted
above with respect to other forms of administrative detentions.
Repeal of the custody and repatriation system
In June 2003, the State Council repealed a controversial
form of administrative detention called custody and
repatriation (C&R) after a young university graduate named Sun
Zhigang was mistakenly detained in the system and beaten to
death in custody. Under C&R, public security officials had the
power to detain anyone without an identification card,
temporary residence permit, or work permit and forcibly
repatriate them to their place of registered residence. The
system was used to detain indigents, migrants, petitioners, and
political activists and was associated with a host of
abuses.\105\ In August 2003, civil affairs bureaus nationwide
began to convert the former C&R detention centers into
voluntary aid centers tasked with providing temporary housing
and social services to indigents and beggars. As of March 2003,
Ministry of Civil Affairs officials reported that 931 of the
aid centers nationwide had received a total of 250,000
visits.\106\
Although officials report some challenges in changing the
mentality of staff accustomed to administering the coercive C&R
system, research and visits by Commission staff, as well as
anecdotal evidence, suggest that the new aid system is largely
voluntary.\107\ Police in several cities have complained that
the repeal of C&R has hampered their ability to combat
crime.\108\ Although restrictions on migrants remain in place,
government authorities have made efforts to ease some such
controls in the past year [see Section III(f)--Freedom of
Residence and Travel].\109\ The detention and forced
repatriation of petitioners during the NPC meetings in March
2004 suggests, however, that public security officials have
other methods at their disposal to detain individuals who in
the past may have been subjected to C&R.
Torture and Abuse in Custody
Despite legal prohibitions on torture\110\ and recent
campaigns to address law enforcement abuses, torture remains
common in China.\111\ In the wake of the widely publicized case
of Sun Zhigang [see Repeal of the custody and repatriation
system above], Chinese media have reported on numerous cases of
torture and coerced confessions.\112\ Foreign media, NGOs, and
Falun Gong affiliates also reported on the widespread use of
torture.\113\ Forms of torture identified in such reports
include beatings, electric shock, and the suspension or
shackling of limbs in painful positions.\114\ According to
Chinese reports, official abuses including torture resulted in
the deaths of 460 people and serious injuries to 117 people in
the first ten months of 2003.\115\ A recent SPP investigation
uncovered more than 4,000 cases of official abuse between 2001
and 2003, including cases involving torture and coerced
confessions.\116\ The number of torture and abuse cases is
likely much higher than indicated by these domestic
statistics.\117\
The Chinese government made some public efforts to combat
the practice of torture in the past year. In an effort to
soothe public anger over law enforcement abuses, senior
government leaders and law enforcement officials continued to
condemn torture in public statements and launched several
campaigns to root out abusive police and prosecutors.\118\
These campaigns resulted in a number of well-publicized
prosecutions of law enforcement officials for torture.\119\
Public security scholars have also discussed the limited
utility of torture as an investigative technique in
professional exchanges and in scholarly writings.\120\ On the
regulatory front, the Ministry of Public Security (MPS) issued
a new regulation in the fall of 2003 that prohibits the use of
torture as an investigative tool in administrative cases.\121\
Although some reports described the new provision as an
``exclusionary rule'' for administrative cases, the provision
only states that evidence obtained illegally may not form the
basis of a verdict, not that courts must disregard it
altogether.\122\ While the new regulation is a welcome
development, this has long been the technical rule in Chinese
criminal cases.\123\ In July 2004, the MPS issued another new
regulation with the stated purpose of cracking down on
interrogation abuses and rectifying the interrogation
process.\124\ Under the new regulation, police chiefs are to be
demoted and responsible officers dismissed if a person subject
to interrogation commits suicide or dies of abuse or other
``unnatural'' causes.\125\ Some local governments also
introduced limited initiatives to address torture.\126\
Chinese sources acknowledge that the problem of torture is
rooted less in a lack of formal prohibitions than in prevailing
law enforcement attitudes and an inability or unwillingness to
enforce existing laws and regulations. A recent article in
China's Legal Daily concludes that the problem persists because
many law enforcement officials continue to believe that torture
is appropriate if the goal is to uncover evidence or crack down
on crime.\127\ Prosecutors and courts often ignore such
abuses,\128\ and illegally obtained evidence is not excluded in
Chinese trials.\129\ Consequently, prosecutors and public
security officials have few disincentives to engage in abusive
practices. As a U.S. political scientist concluded at a
Commission roundtable, limited improvements on torture may be
possible under the current system, but ``China, like most
authoritarian systems, lacks the institutions to create self-
generating or self-sustaining monitoring of law enforcement
abuses, or to generate effective political pressure for
reform.'' \130\
Theo van Boven, the U.N. Special Rapporteur on Torture, has
long negotiated with the Chinese government for permission to
make an investigative visit to China. For a number of years,
the U.S. government has asked the Chinese government to accept
van Boven's terms and schedule a visit. In March 2004, probably
to head off potential support for a U.S.-sponsored resolution
on China at the annual U.N. Human Rights Commission meeting,
the Chinese government announced that it had agreed to a visit
by van Boven.\131\ In June 2004, however, China postponed the
visit until later in the year, citing the need for additional
preparations and the difficulty of coordinating the visit among
different local governments and authorities.\132\
``Harvesting'' of Organs from Executed Prisoners
Several new reports of ``organ harvesting'' from executed
prisoners surfaced in 2004. A leading Chinese transplant
surgeon told a Hong Kong newspaper that organ harvesting
continues and called it ``a stain on the history of medical
practice in China.'' \133\ The Lanzhou Morning News reported
that the parents of an executed man sued the Dunhuang Detention
House because authorities refused to return the corpse of their
executed son. According to the report, the man's organs had
been removed. The court accepted the facility administrator's
word that the prisoner had donated his organs voluntarily, even
though the official did not produce a document or other written
evidence showing that the prisoner had done so. ``To patch up a
quarrel,'' the court awarded the family the amount it had spent
hiring people to bring a coffin to the place of execution.\134\
According to Chinese reports, central government
authorities are drafting a national law that establishes rules
for organ transplants. Chinese sources are unclear whether this
law will address the issue of involuntary organ donations from
executed prisoners.\135\ Local legislation on organ donation
enacted in Shenzhen last year did not address this issue.\136\
Access to Counsel and Right to Present a Defense
Under Chinese law, defendants have the right to hire an
attorney,\137\ but national law only guarantees pro bono legal
defense if a defendant is a minor, faces a possible death
sentence, or is blind, deaf, or mute.\138\ In other cases where
defendants cannot afford legal representation, courts may
appoint defense counsel or the defendant may apply for legal
aid, but the law does not guarantee free legal
representation.\139\ Chinese authorities are taking steps to
improve access to legal aid, but funds are limited and the
system provides applicants with lawyers in only a small
percentage of cases [See Section V(c)--Access to Justice].\140\
Nationwide, only about one-third of Chinese criminal defendants
have legal representation.\141\ The rate of representation is
even lower in many rural areas.\142\
Chinese defense attorneys face numerous obstacles in
representing their clients. Under the Criminal Procedure Law,
Chinese defendants in theory have the right to meet with
counsel after their first interrogation, or from the day they
are subject to detention or arrest, to obtain evidence in
possession of the prosecution, and to cross-examine prosecution
witnesses at trial.\143\ In practice, law enforcement
authorities frequently undermine or ignore these and other
rights.\144\ Authorities often delay responding to requests by
lawyers to see their clients, refuse such requests outright, or
impose unreasonable restrictions on client access.\145\ In some
cases, defense attorneys are only granted one or two meetings
with defendants, sometimes only hours prior to trial, making it
virtually impossible for the attorneys to mount an adequate
defense.\146\ Defense attorneys also face numerous obstacles in
collecting evidence or gaining access to evidence that the
prosecution holds. Witnesses often do not appear in court,
undermining the right of cross-examination. Often, all defense
lawyers can do in the face of such obstacles is to plead for
lenient treatment. Chinese officials acknowledged many of these
problems in several articles published in the past year.\147\
Chinese defense attorneys indicate that their work environment
has not improved significantly in the past year and that many
of the problems described above have persisted.\148\
Some defense attorneys who represent their clients too
aggressively face harassment and prosecution. Authorities have
prosecuted defense lawyers on questionable corruption charges
or threatened to revoke their licenses.\149\ In other cases,
they have accused aggressive lawyers of ``evidence
fabrication.'' In December 2003, for example, defense lawyer
Zhang Jianzhong was convicted and sentenced to two years'
imprisonment for violating Article 307 of the PRC Criminal
Code, a provision on evidence fabrication.\150\ Many observers
questioned the basis for the charges and believe that Mr. Zhang
was targeted for his vigorous defense work.\151\ A China Daily
editorial published in April 2004 acknowledged that some
lawyers face such intimidation, noting that Article 306,
another provision on evidence fabrication, is ``abused
sometimes by police officers and procurators to retaliate
against attorneys who have frustrated their case against the
accused.'' \152\
The Chinese government has begun to take some limited but
positive steps to address the concerns of defense attorneys and
their clients. In December 2003, for example, the SPP released
a new set of regulations designed to improve conditions for
defense attorneys.\153\ The provisions included specific time
limits within which prosecutors must arrange meetings with
clients and a requirement that prosecutors act on defense
lawyer complaints and respond to requests for evidence.\154\ In
March 2004, Chinese media announced that the NPC is likely to
repeal Article 306 of the Criminal Law.\155\ Official
statements on the key role of defense attorneys provided a
welcome acknowledgment of the need for meaningful
representation of criminal defendants.\156\ So far, however,
the practical impact of these steps appears to be limited. The
new SPP provisions on client access do not apply to cases
investigated by public security,\157\ and defense lawyers
complain that prosecutors have manipulated the new rules or
ignored them altogether.\158\
Fairness of Criminal Trials
Criminal courts in China rarely acquit defendants.
According to official statistics, the conviction rate in
Chinese criminal courts exceeded 99 percent in 2003.\159\
Chinese lawyers and scholars warn that lack of professionalism
and legal competence on the part of some law enforcement and
court personnel, a prevailing presumption of guilt, and
political factors contribute to the high conviction rate.\160\
Defendants who appeal their convictions face limited prospects
for reversal. Lower courts often seek guidance from higher
courts regarding legal issues in cases before them,
particularly in sensitive cases. Consequently, many lower court
judgments already reflect the view of higher court judges,
undermining the purpose of appellate review [see Section V(d)--
China's Judicial System]. Perhaps because of the limited
prospects for success, only roughly 15 percent of criminal
defendants exercise their right to appeal.\161\ In the rare
case that a defendant is acquitted, Chinese law provides little
finality. Prosecutors may appeal acquittals or request
adjudication supervision from higher courts until they obtain a
guilty verdict. In fact, they have an incentive to do so, since
acquittals may result in official liability for wrongful
detention and arrest under China's State Compensation Law.\162\
The length, openness, and scheduling of Chinese criminal
trials also raise questions about the fairness of the trial
process. Chinese criminal trials sometimes last only a matter
of hours and rarely more than a day, even when they involve
sensitive or complex issues or a possible death sentence.\163\
Despite rules requiring criminal trials to be open to the
public, authorities often restrict access to the courtroom or
invoke exceptions involving ``state secrets'' in order to keep
trials closed.\164\ Finally, authorities sometimes create
obstacles that make it difficult for defense lawyers to
represent their clients properly at trial. In the case of
Internet dissident Du Daobin, for example, court authorities
announced the trial date only three days before the trial. The
court refused to reschedule the trial after Du's defense lawyer
notified it that he could not appear in court on that day,
forcing the lawyer to submit only a written defense.\165\ Du's
other attorney, who was court-appointed, reportedly refused to
appear in court unless Du agreed to plead guilty to a
subversion charge.\166\
Chinese lawyers and scholars complain that courts often
hand down guilty verdicts in criminal cases without adequate
evidence.\167\ Documents from several high-profile criminal
cases
decided in the past year provide examples of the questionable
evidence on which convictions are sometimes based.
In May 2004, a Beijing court convicted U.S.
dissident Yang Jianli of espionage. The evidence that
the prosecution presented appears to have been based
almost entirely on Yang's ``confession'' that his U.S.-
based advocacy group had contacts with a Taiwan
organization and provided minor grants to researchers
in mainland China. The Ministry of State Security had
internally classified the Taiwan organization as an
``espionage organization.'' The prosecution does not
appear to have provided any independent evidence that
Yang's behavior constituted espionage as a matter of
law or that he intended to commit the crime of
espionage.\168\
In October 2003, a Shanghai court convicted
lawyer Zheng Enchong on charges of ``illegally
providing state secrets to entities outside of China.''
Zheng sent handwritten notes and an ``internal'' Xinhua
news advisory on local labor and property protests to
the New York-based organization Human Rights in China.
The prosecution repeatedly did not produce the
handwritten notes in court. A public security official
classified the information contained in the materials
as ``state secrets,'' despite the fact that both the
information on the protest and the news advisory were
publicly available.\169\
California businessman Jude Shao continues to
serve a 16-year sentence for falsely issuing value
added tax receipts and for tax evasion, despite
evidence demonstrating that the tax was paid, a March
2004 audit report to support this finding, and a report
on the case by a panel of criminal law experts that
raises serious questions about the evidentiary basis
for Shao's conviction.\170\ According to advocates for
the defense, authorities held Shao incommunicado before
his trial. His defense attorney, who was hired only ten
days prior to trial, was not permitted to meet with him
and was not allowed to review the evidence against Shao
before the trial. To date, Chinese courts have refused
to accept Shao's petitions for retrial based on new
exculpatory evidence.
Convictions in many cases appear to be based almost
entirely on defendant confessions, despite the prevalence of
coerced confessions and legal provisions stating that a
confession may not be the sole basis for a conviction.\171\ In
recent years, mainland Chinese and Hong Kong media have
reported on numerous cases of defendants convicted and even
sentenced to death on the basis of coerced confessions or
questionable evidence.\172\ Even in the absence of physical
coercion, high conviction rates encourage defendants to confess
in the hope of receiving more lenient treatment.\173\
Courts are subject to a number of external influences in
deciding cases.\174\ Local governments exercise influence over
judicial work through their control of judicial appointments,
salaries, and court finances. Party Political-Legal Committees
also supervise the work of the courts and can influence or
decide the outcome of trials, particularly in major or
sensitive cases.\175\ In one example that became public last
year, an official legal newspaper announced the verdict in an
extortion case that had not yet been tried after it received a
Party circular on the case.\176\ In another instance, a
Shenyang court commuted the death sentence of notorious mafia
boss Liu Yong after finding that the confession of a key
government witness in his trial had been coerced. In response
to a flood of public outrage over the decision, the SPC retried
the case and reinstated the death sentence, reportedly under
direct orders from the Party Political-Legal Committee and
despite the opposition of several SPC judges.\177\ Government
or Party leaders sometimes feel compelled to interfere in
criminal case decisions in response to public and media
pressure for convictions. While such public pressure has
provided a check on corruption and government misconduct in
some cases, in the Liu Yong case and others it has given rise
to concerns about mob justice.
Capital Punishment
The PRC Criminal Law includes 68 capital offenses ranging
from murder to bribery and embezzlement.\178\ Recent judicial
interpretations and NPC amendments to the Criminal Law appear
to have increased the number of capital offenses by authorizing
application of the death penalty in certain cases involving
acts of terrorism or the unlawful use of toxic chemicals.\179\
Although some Chinese scholars have called for the abolition of
the death penalty,\180\ polls and anecdotal evidence suggest
that popular support for capital punishment in China continues
to remain strong, and officials continue to view the death
penalty as an effective deterrent against crime and
corruption.\181\ Some scholars have argued that China should
consider abolishing the death penalty for economic crimes as a
first step.\182\
The Chinese government considers the number of death
sentences it carries out each year to be a state secret.\183\
Amnesty International compiled published reports on 1,060
executions in 2002 but cautioned that the Chinese media report
only a fraction of all executions.\184\ In early 2004, the
China Youth Daily cited an NPC delegate as stating that China
executes nearly 10,000 criminals annually.\185\ Although the
delegate's statement could be interpreted in different
ways,\186\ this number is consistent with several other
estimates of the annual number of executions in China,
including an internal Chinese figure referenced in the book The
Fourth Generation (Disidai).\187\ According to a recent report,
Luo Gan, head of the national Party Political-Legal Committee,
has ``quietly'' ordered Chinese judicial authorities to reduce
the number of executions.\188\ Some Chinese scholars question
whether the directive will have much practical effect in the
context of China's continuing ``strike hard'' campaign.\189\
Both Chinese scholars and international observers continue
to express concern about China's system of death penalty
review. While the Criminal Procedure Law requires the SPC to
review all death sentences, the SPC has delegated this power in
cases involving murder, rape, and a number of other crimes to
provincial high people's courts.\190\ In the 300 death penalty
cases it did review in 2003, the SPC changed the original
sentence or ordered retrials in 118 cases.\191\ The specter of
wrongful executions that such high
reversal rates raise, along with questions about the legality
and appropriateness of the SPC's delegation of power, has
sparked considerable debate in Chinese legal circles.\192\ In
response, Chinese media reported in March 2004 that the NPC and
SPC are actively considering proposals to return the power of
review in all death penalty cases to the SPC.\193\ To deal with
the heavy caseload that the SPC would face if such a reform
were approved, the proposal reportedly calls for the SPC to
hire up to 200 new judges and to establish branch offices in
several regional districts to conduct the reviews.\194\ Chinese
sources suggest that the proposal is in part an effort to blunt
international criticism of China's human rights record.\195\
Reform Initiatives and Public Discussion of the Criminal Justice System
Domestic Chinese media carried extensive reports on law
enforcement and judicial reforms over the past year. In
addition to the reforms noted above, police, prosecutors,
courts, and penal institutions launched a series of initiatives
with the stated purpose of improving transparency and
information exchange, enhancing citizen supervision of law
enforcement, addressing corruption and abuse in the criminal
justice system, and improving the image of penal institutions.
Police, prosecutors, and courts began holding
regular press conferences, appointed press
spokespersons, established points of public inquiry,
and instituted information disclosure systems and
hotlines for complaints.\196\
The SPP established a new system of citizen
supervisors designed to monitor cases and address
complaints about the conflict of interest inherent in
the procuratorate's dual role as prosecutor and
supervisor of the legal process.\197\ In June 2004, the
SPP also announced new disciplinary punishment rules
for prosecutors.\198\
The MPS launched several drives to address
misconduct and official abuse in the police force.\199\
In January 2004, the MPS announced that it had fired
387 police and investigated or prosecuted 988 police
for misconduct, fired 11,000 for lack of
qualifications, and transferred an additional 34,000
unqualified police personnel to new jobs. In April
2004, the MPS announced a training campaign for
remaining officers.\200\
In December 2003, SPC President Xiao Yang
announced that courts had disciplined a total of 972
court workers for misconduct following a sweep of the
judicial system. One hundred and four of the
individuals were convicted of crimes.\201\
Ministry of Justice (MOJ) officials announced
a review of the nation's penal system and a series of
new prison reform initiatives, including seminars on
protecting prisoner rights, mechanisms to solicit
prisoner complaints, and new work and
education benefits.\202\
In May 2004, the SPP, the MOJ, and the MPS
announced a crackdown on human rights abuses in the
nation's prisons and corruption in the parole and
sentence reduction process.\203\ The SPP reported in
September 2004 that the investigation into the matter
revealed more than 13,900 cases in which sentences had
been illegally reduced.\204\
The SPP claimed that it had uncovered 4,029
human rights violations, including torture, coerced
confessions, illegal detentions, election tampering,
and other abuses, and vowed to continue its
investigation for another year.\205\
Scholars, legislators, and criminal justice
officials are reportedly working on a set of joint
regulations on evidence exchange\206\ and drafting
major revisions to the Criminal Procedure Law.\207\
These and other reforms are part of what appears to be a
coordinated government campaign to improve the public image of
law enforcement agencies and the judiciary. Government
officials launched the campaign in mid-2003, in part as a
response to public anger over several well-publicized cases of
law enforcement abuse in early 2003, which they interpreted as
a sign of general public frustration with law enforcement
misconduct and corruption.\208\ The initiatives also give
President Hu Jintao and Premier Wen Jiabao an opportunity to
demonstrate progress on citizen rights and the fight against
corruption as they seek to bolster their populist image.\209\
Chinese scholars, law enforcement personnel, lawyers, and
judges continued a spirited discussion of criminal justice
reform in 2004 through conferences, scholarly and general media
publications, online forums, and legal exchanges.\210\ Scholars
and officials also continued to demonstrate an interest in
foreign legal models, engaging in numerous legal exchange
programs with foreign counterparts on a broad range of criminal
justice issues. These exchanges included conferences on
criminal defense, capital punishment, constitutional protection
in criminal procedure, pre-trial discovery, plea bargaining,
and other subjects. In one such program in the spring of 2004,
U.S. lawyers and legal scholars conducted a mock evidence
suppression hearing for 300 prosecutors at Beijing's National
Prosecutors College.\211\ In another, criminal justice scholars
from 68 countries met in Beijing in September 2004 to discuss
juvenile justice, corruption, criminal procedure, and other
criminal law issues.\212\ Reform-minded Chinese scholars
interviewed by Commission staff encouraged more such exchanges,
noting that the programs have had a positive impact and are an
important way to encourage further reform of the criminal
justice system.\213\ Foreign observers monitoring the reform
process agreed, noting that the upcoming amendments to the
Criminal Procedure Law present an important opportunity to
impact the direction of reform through legal exchange.\214\
Implications of Criminal Justice Developments and Prospects for Further
Reform
Events over the past year illustrate the complex nature of
criminal justice reform in China. The government's reform
initiatives on extended detention, defense lawyers, human
rights abuses, and other issues are positive steps. On a
rhetorical level, these initiatives and the official statements
accompanying them set a tone more conducive to the protection
of suspect and defendant rights. They also provide important
political cover for defendant complaints in individual cases
and for efforts by reformers to push for broader structural
changes in the criminal justice system. As continued discussion
and legal exchange make clear, many dedicated scholars, judges,
and officials recognize the need for reform of China's criminal
justice system and are pushing for additional reforms, albeit
within the boundaries set by the leadership.
Despite some incremental improvements, however, the
immediate practical impact of these initiatives appears to be
limited. Although Commission sources have expressed cautious
optimism about some reform measures, the continued problems
described in this section suggest that implementation of these
reforms remains uneven at best. These implementation problems
will likely continue for several reasons. First, law
enforcement and the courts are under conflicting public and
government pressures. The public is angry about law enforcement
abuses and corruption in the criminal justice system, but also
wants the government to ensure public safety and deal with the
growing crime problem. Second, the
leadership's commitment to reform seems to be limited, and the
government continues to manipulate procedural protections when
expedient in sensitive or major criminal cases. Such acts
undermine official statements on the need for a more even
balance between the power of the state and the rights of
criminal defendants and respect for human rights. Finally,
continued arbitrary detentions, controls on judicial
independence, and the leadership's apparent reluctance to
dismantle the RETL system call into question the Party's
commitment to broader reforms. Thus, while the leadership will
likely have to deliver some concrete improvements in order to
maintain its legitimacy, such improvements are likely to be
incremental.
III(b) Protection of Internationally Recognized Labor Rights
FINDINGS
The Chinese government does not respect the
core labor rights of freedom of association and
collective bargaining. The Chinese government prohibits
workers from forming independent labor organizations to
protect their rights and continues to harass and punish
workers who attempt to establish such organizations.
Millions of Chinese workers have no
alternative but to work in unsafe and unhealthy
conditions.
Employers frequently withhold wages from
Chinese workers. Local governments often fail to help
workers collect back wages, triggering frequent worker
demonstrations and unrest.
Introduction
Working conditions in China and the government's lack of
respect for internationally recognized worker rights remained
largely unchanged over the past year. Working conditions in
China's rapidly growing manufacturing sector remain generally
poor and do not comply with minimum international standards. As
discussed below, implementation of Chinese labor laws,
regulations, and policies continues to fall short of
international norms. The Chinese government denies Chinese
citizens the right to organize freely and to bargain
collectively, and over the past year the government has
continued to imprison labor leaders and suppress worker efforts
to represent their own interests. Government policies toward
migrant workers continue to be discriminatory. Over time, the
Chinese government's labor and security policies have resulted
in the development of a system that encourages forced labor.
Since the late 1970s, the National People's Congress has
enacted progressive laws that on paper give Chinese workers
rights similar to those that workers in developed countries
enjoy. Poor enforcement of these laws, however, contributes to
a number of serious problems, the most severe of which is the
high rate of injury and death among workers. Deaths in the coal
mining industry alone, while on the decline, still average more
than 6,000 per year.\215\ Even though national and local laws
and regulations seek to limit working hours, Chinese government
prohibitions on independent labor associations, and workers'
lack of knowledge of their legal rights, undermine such legal
protections in practice.\216\
A principal cause of the increasing incidence of labor
disputes and worker unrest in China is poor government
enforcement of existing labor laws and Chinese workers' lack of
knowledge about their rights. To help China address these
problems, the United States Department of Labor is funding a
$4.1 million technical cooperation project in China to assist
the Ministry of Labor and Social Security with training
programs to provide legal education for legal aid workers and
to improve employee/employer relations.\217\
Internationally Recognized Labor Standards
Members of the International Labor Organization (ILO) have
acknowledged the existence of a basic set of principles
concerning the fundamental rights of workers to associate, to
bargain collectively, and to be free from child and forced
labor and from discrimination in employment. The ILO
Declaration on Fundamental Principles and Rights at Work (the
``1998 Declaration'') reaffirms the commitment of ILO members
to those basic principles. China is a member of the ILO, but
frequently does not respect these basic commitments.
The ILO's eight core conventions provide guidance on the
full scope of rights and principles enumerated in the 1998
Declaration.\218\ China has ratified three of these
conventions, including two on child labor and one on equal
remuneration for male and female workers.\219\ China has not
fulfilled its obligations under the 1998 Declaration to
respect, support, and promote these rights and principles. One
NGO characterized the Chinese government's interaction with the
ILO as demonstrating ``steadfast refusal to
compromise on the issue of freedom to organize and join a trade
union of one's choice.'' \220\ The International Covenant on
Economic, Social, and Cultural Rights (ICESCR), ratified by
China in 2002, includes a section guaranteeing the rights of
workers to organize independent trade unions. China's
government, however, has claimed reservations to the ICESCR for
provisions that conflict with China's Constitution and labor
laws, which bar such organizations.\221\
Freedom of association and collective bargaining
The Chinese government does not provide workers with the
internationally recognized right to join unions of their own
choosing, to bargain collectively, or to strike. In spite of
government prohibitions, Chinese workers continue to attempt to
form their own labor organizations, usually spurred on by
incidents involving non-payment of wages, poor working
conditions, or corrupt confiscation of state-owned enterprise
assets by management. Because workers have no legal means of
organizing to help themselves, their ability to express
discontent is highly limited. Frustrated by a lack of channels
through which to communicate with management on working
conditions or wage issues, workers are forced to protest,
sometimes through large-scale demonstrations. These
demonstrations often result in a repeated cycle of clashes and
arrests. The government's repressive labor policies therefore
trigger the very unrest that the Party leadership is anxious to
avoid.
Revised in 2001, China's Trade Union Law continues to
recognize the All-China Federation of Trade Unions (ACFTU), a
body closely linked to the Party, as the only national-level
trade union in China. Under this law, the establishment of any
lower-level trade union depends upon approval of the next
higher-level union body.\222\ As a result, the ACFTU exercises
an absolute veto over the establishment of any trade union and
can block any attempt to establish independent labor
associations. The sole legal union representative for the
average Chinese worker is his or her local ACFTU branch, even
though these branches seldom perform any of the important
functions traditionally associated with unions, such as
organizing workplaces or advocating for workers in disputes
with management.\223\ Sometimes, the ACFTU branch actively
seeks to prevent workers from pursuing wage claims. For
example, in one case a local ACFTU manager formally represented
company management, rather than workers, in their appeal of a
decision ordering the payment of back wages.\224\ One Chinese
worker in Shanghai characterized the role of his ACFTU branch
this way:
There is a trade union in our workplace simply
because it is compulsory and the local government sent
out a form to our boss. The management simply filled in
the form and that's that--we've got a trade union. It's
a common practice.\225\
The ACFTU often frustrates moves by workers to form
independent worker organizations. In one case, migrant workers
tried to form an independent workers association in 2002 with
the support of local officials. After the association enrolled
1,500 workers and helped address worker grievances for three
months, ACFTU and labor ministry officials closed it down,
claiming that it was an independent union.\226\ ACFTU branches
are also used as convenient ``cover'' by local officials
seeking to prove their compliance with national and
international labor standards. In November 2003, Guangdong
provincial labor officials stated that they considered the
ACFTU to have successfully set up branches in foreign-owned
export factories in the province.\227\ Subsequent Commission
staff conversations with employees of foreign compliance
monitoring organizations working in the same area indicated
that the ACFTU branches were having no visible impact on these
foreign-invested workplaces and their level of activity was not
detectable.\228\
The Chinese government frequently ends worker protests by
jailing leaders on a variety of criminal and administrative
charges. In February 2004, government authorities suppressed
protests by about 2,000 workers of the Tieshu Textile Factory
in Suizhou, Hubei province, after the bankrupt state-owned
factory failed to pay severance benefits. Authorities began
making arrests when protests blocked the city's main rail line
and occupied the factory premises. Nine workers were detained.
The protests followed a 15-month peaceful campaign to gain back
wages and termination pay.\229\ Authorities eventually tried
Chen Kehai, Zhao Yong, Zhu Guo, and Yang Yongcai for
``disturbing public order'' under summary procedures limiting
their rights to legal defense.\230\ Zhu Guo received a one-year
sentence and Chen Kehai and Yang Yongcai each received
sentences of two and one-half years.
Workers sometimes resort to desperate measures to seek
redress of their problems. In July 2004, 23 laid-off coal
miners traveled from Hegang, Heilongjiang province, to Beijing
to petition the government for compensation. Scaling the roof
of a building adjacent to the Supreme People's Court, the
miners threatened mass suicide.\231\ After they were detained
for causing a disturbance, hundreds of fellow miners set off in
a convoy in an attempt to reach Beijing to support the 23
petitioners, but were stopped by police.\232\
A prominent U.S. political scientist noted at a Commission
roundtable in 2003 that worker protests are increasingly
sophisticated and growing in number, particularly in China's
northeast region.\233\ He cited one police officer who
complained that ``local protestors now show up having already
raised funds for petition drives, hired lawyers, and invited
news reporters to the event.'' He also pointed out that Western
experts claim that ``the CCP and the State cannot hope to
contain social unrest unless they address institutional
catalysts including . . . bureaucrats who are corrupt,
indifferent, and abusive.'' \234\
Workplace Health and Safety
Unhealthy and unsafe conditions are pervasive in the
Chinese workplace. In 2003, 963,976 workplace accidents claimed
136,340 lives.\235\ The ILO estimates that Chinese workers
annually suffer 11.1 accidents per 100,000 workers, a rate more
than five times as high as that in the United States.\236\
According to one U.S. scholar, China and other developing Asian
countries are experiencing what he called ``an industrial
accident crisis of world-historical proportions.'' \237\
Inadequate training for machinery operators and unsafe handling
of chemicals contribute to China's high rate of industrial
accidents and injuries. In April 2004, carelessness in the
handling of chemicals led to a gas explosion at Chongqing's
Tianyuan Chemical Industry plant that killed 243 people and
injured more than 9,000.\238\
Accidents are particularly common in Chinese coal mines.
While the mining industry is formally subject to provincial and
local safety rules and regulations, such provisions are
commonly ignored as local operators and officials reopen small,
older mines to meet surging demand.\239\ Unemployed workers,
especially those from the countryside, often seek work in these
unsafe mines.\240\ Although coal-mining accidents declined 12.8
percent in 2003, more than 6,000 miners still died in
accidents.\241\ In Jiexiu, Shanxi province, for example, 28
miners were killed in a gas explosion after their manager
ordered them to continue working without ventilation. The
director of the Jiexiu city Bureau of Work Safety said that the
accident was ``totally avoidable.'' \242\
Mine owners have occasionally taken steps to cover up
accidents, making it difficult to determine the true accident
rate. In June 2004, two Hebei mine owners were arrested for
trying to cover up a gas explosion that killed 12 miners. The
owners reported only one death, cremated the other bodies, and
paid family members to keep quiet. The injured were not sent to
hospitals, but were treated privately.\243\
The Chinese government has taken some steps to address the
problem of workplace injuries. In April 2003, the State Council
passed the Regulations on Insurance for Occupational Injuries,
effective January 1, 2004.\244\ The regulations establish a
workers' compensation insurance system, requiring all companies
in China to purchase insurance for work-related injuries.\245\
Although the Ministry of Labor and Social Security issued
implementing regulations in the fall of 2003, the impact of
these regulations is still uncertain. Chinese authorities have
also mounted an industrial safety campaign, including a
requirement for ``safe production licenses.'' Obtaining a
three-year license requires companies to implement operational
safety procedures and training, set up administrative bodies to
supervise production, provide equipment meeting safety
standards, and prepare emergency plans. Industries failing to
comply must halt operations and pay fines ranging from 50,000
yuan ($6,045) to 100,000 yuan ($12,091).\246\ To measure the
success of its safety campaign, the central government plans to
institute a national system of safety indices that will be
distributed to provincial and local governments.\247\ While
this new policy is a positive development, the government and
industry are unlikely to reduce workplace injuries and deaths
until workers can fully participate in the enforcement of
health and safety regulations.
Several U.S. government efforts exist to improve Chinese
working conditions. The U.S. Department of Labor has funded a
program in China, implemented by the National Safety Council,
to train miners and mine operators on safe methods and
practices. This program addresses only coal mining safety
issues, and the need exists for other cooperative programs to
address workplace health and safety issues in other industrial
sectors. In June 2004, the U.S. Labor Department signed four
letters of understanding with the Chinese Ministry of Labor and
Social Security and the State Administration of Work Safety,
including commitments to cooperate on regulations regarding
wages, work hours, mine safety, occupational health and safety,
and the administration and oversight of pension programs. \248\
Wages and Work Hours
Wages
The legally mandated minimum wage for Beijing is 495 yuan
($59.77) per month, 570 yuan ($68.82) for Shanghai, and 600
yuan ($72.45) for Shenzhen.\249\ Many Chinese employers do not
pay workers even these modest rates. For example, one footwear
factory in Dongguan paid its workers the equivalent of 18 U.S.
cents per hour when the legal minimum wage was 31 cents per
hour. In the same factory, legally mandated overtime rates were
62 cents per hour, but workers were only paid 24 to 34 cents
per hour for overtime that was essentially mandatory. Some
workers accumulated up to 31 hours of overtime per week.
Workers also had various wage deductions for room and
board.\250\
Wage and pension arrears
Non-payment of wages and pensions is common in China,
particularly for workers in financially ailing state-owned
enterprises (SOEs). SOE employees are often assured generous
retirement benefits while employed, only to be cut adrift when
the company experiences problems or goes bankrupt.\251\
According to the Minister of Labor and Social Security, unpaid
pension benefits in the first five months of 2000 alone
amounted to 1.4 billion yuan ($174.6 million).\252\ Migrant
workers are also vulnerable to wage withholding practices.
Employers induce migrants to work throughout the year with
promises of future payment, only to vanish with the approach of
the Chinese New Year.\253\ Official sources suggest that over
70 percent of Chinese migrants are owed back wages and that
total back wages owed to migrants amounted to 100 billion yuan
($12.5 billion) at the end of 2003.\254\
Wage withholding generates desperate attempts by workers to
recover the money owed to them. Increasingly, this has involved
worker suicide attempts or threats.\255\ Large-scale worker
protests are also common. In June 2004, around five thousand
Shenzhen workers clashed with police in protesting wage
withholdings by their Hong Kong-owned factory.\256\ Some SOE
managers impose fines on workers seeking better conditions. In
the summer of 2003, a Jiangxi province power company announced
a series of escalating fines for workers seeking to discuss
wage and benefit issues with local government officials.\257\
The back wage issue has sparked warnings from the central
government, the adoption of various local regulations, and
numerous clean-up campaigns.\258\ The failure of local
governments to settle construction industry wage debts has been
a significant area of dispute. The central government's
pressure on local governments has been effective in addressing
a few immediate problems.\259\ However, Chinese media reports
have noted the ineffectiveness of such sporadic campaigns to
resolve the basic issue of wage arrears.\260\ Sustained
government commitment to improving the legal rights of workers
is required. One positive development over the past year was
the passage of national Regulations on Legal Aid, allowing
workers to seek assistance with legal claims for minimum wage,
workers' compensation, and back wages. [See the discussion of
legal aid programs in Section V(c)--Access to Justice.]
Migrant workers and the hukou system
Migrant laborers often face a range of discriminatory
practices under China's household registration (hukou) system.
For a discussion of these issues, see Section III(f)--Freedom
of Residence and Travel.
Overtime
Chinese labor law limits overtime to three hours per day
and no more than nine hours per week over a regular 40-hour
workweek.\261\ A study of 142 Chinese factories producing goods
for international brands showed that over 93 percent of the
factories required excessive overtime, defined in the study as
work hours exceeding legal limits or 60 hours total.\262\
U.S. companies that purchase goods from Chinese
subcontracting factories are aware of excessive overtime
practices, but have had limited success in changing them.
Factory managers cite inadequate production time and last-
minute design changes as the principal cause of excessive
overtime.\263\ Commission staff and
representatives of U.S. and European companies have discussed
these issues, and the company officials have shown a growing
awareness of the need to address excessive overtime practices
before they place orders with suppliers who use subcontracts.
Most agree that contract provisions curbing excessive overtime
should become part of the supply chain management system.\264\
A Congressional survey of labor conditions in China identified
a number of different workplace codes of conduct addressing
this issue.\265\
Child Labor
Although the Chinese government adopted regulations in
December 2002 banning the employment of children under the age
of 16, child labor remains a significant problem in township
and village enterprises and in agriculture. While national data
is unavailable, foreign NGOs and local governments in China
have documented multiple instances of child labor in violation
of China's own national laws.\266\ Sometimes, educational
institutions themselves are complicit in compelling children to
work.\267\
Child labor issues sometimes attract national media
attention. For the June 13, 2004 edition of the China Central
Television Network's (CCTV) ``Focus'' news program, reporters
conducted interviews with workers at a Tianjin knitting factory
and revealed that most were under the legal age of 16 years.
Not only did factory owners violate the law by employing
minors, but they also forced the children to work up to 14
hours a day and withheld the wages of those who failed to keep
pace. Some of these children were left homeless after being
fired from the factory.\268\ Similarly, the People's Daily
reported on a handicraft company in Fuzhou that had hired four
underage girls, two of whom had just graduated from primary
school, and required them to work more than 12 hours per day.
After deductions for room and board, one of the children earned
only 100 yuan ($12) for a month's work when she had been
promised between 300 and 400 yuan.\269\
Forced Labor
Reports detailing the use of forced labor in Chinese
prisons continue to be published.\270\ Several indicate that
Falun Gong practitioners and other prisoners detained under
China's re-education through labor (RETL) system have been
producing goods for local and export markets under highly
abusive conditions.\271\ Corruption associated with the
management of profit-making prisons has generated some national
attention within China. In September 2003, the Chinese
government announced experimental plans to separate the
``production units'' from the direct supervision of prison
wardens and place them under the control of provincial
administrators.\272\ For a discussion of the re-education
through labor system, see Section III(a)--Rights of Criminal
Suspects and Defendants.
The Commission is concerned that products resulting from
prison labor may be reaching the United States in violation of
U.S. law. The Chinese and U.S. governments signed a memorandum
of understanding in 1992 in which the Chinese government agreed
to
assist in investigating reports of prison labor products
reaching the United States. Chinese government willingness to
cooperate with the U.S. has been uneven, at best. Between 1996
and 2001, Chinese authorities approved only 3 out of 11
requests for site visits, the last in 2000.\273\ During that
same time period, U.S. Customs substantiated three allegations
of products made with prison labor in violation of Section 307
of the Tariff Act of 1930 (10 U.S.C. Sec. 1307).\274\ Section
501 of the United States-China Relations Act of 2000 created a
multi-agency U.S. government task force to enforce the ban on
Chinese forced or prison labor products.\275\ The task force
was reconstituted in 2003 following the integration of the
Customs Service into the Department of Homeland Security and
began meeting again with Chinese officials in the spring of
2004. Progress to date has been limited to a small number of
interactions between U.S. and Chinese officials.
III(c) Freedom of Religion
FINDINGS
Chinese government repression of free
religious belief and practice has grown more severe
over the past year. The Communist Party intensified its
crackdown against unauthorized religious and spiritual
groups in 2003 and expanded the campaign during 2004.
Hundreds of unregistered religious practitioners, and
members of spiritual groups such as Falun Gong, have
endured severe government harassment in the past year,
with reports of beatings and killings.
The Party continues its on-going campaign to
transform Tibetan Buddhism into a doctrine that
promotes patriotism toward China and repudiates the
religion's spiritual leader, the Dalai Lama. However,
the intensity of religious repression against Tibetan
Buddhists may vary across regions. Qinghai province,
and possibly Gansu, may be relatively less repressive.
The Tibet Autonomous Region (TAR) and Sichuan province
currently implement policy in the most aggressive
manner.
The Chinese government has intensified
repression of unregistered Christians. Many
unregistered Christian churches have been demolished.
Protestant house church congregations have increasingly
found themselves the target of severe government
harassment, with reports of beatings and killings. Over
25 unregistered Catholic bishops, priests, and
seminarians have been arrested, and Chinese officials
have intensified harassment of unregistered lay
Catholics in some areas, often pressuring them to
register with the officially sanctioned Catholic
Patriotic Association. The Chinese government took no
public steps toward renewing diplomatic relations with
the Holy See.
The Chinese government continues to enforce
strict regulations repressing Islamic education and
practice, particularly in Xinjiang, where regional
policies focus on preventing Uighur Muslim children
from developing a strong Islamic identity and punishing
adult Muslims engaging in ill-defined ``illegal
religious activity.'' The Chinese government continues
to outlaw private madrassas and mosques, impose travel
restrictions on imams, restrict haj pilgrimages, and
force Muslims to adhere to Party-sanctioned
reinterpretations of the Koran and Hadith.
Doctrinal Hostility Toward Religion
The Chinese government forbids any religious practice that
fails to conform to the Party's views on religion--views shaped
by doctrinaire Marxist antagonism toward all things religious.
The Party maintains that the world outlooks of Marxism and
religion are fundamentally opposed, and that religion is an
illusory, inverse reflection of the external world.\276\ Party
members are instructed to help the broad masses establish a
``correct world outlook.'' \277\ Since the early 1990s, the
Party has attempted to achieve this goal by imposing its views
on religion in China's laws, regulations, and policies. This
policy has led to the intimidation, harassment, arrest,
detention, torture, and even death of religious practitioners
who have chosen not to practice their beliefs in conformity
with government mandates.
Current Party doctrine on religion is based on a new
socialist religious theory attributed to China's third
generation leadership, specifically former president and Party
leader Jiang Zemin. The Party's new socialist religious theory
remains grounded in Marxist antagonism to religion, but adds a
theoretical justification for co-opting religion to achieve
Party ends in Jiang's formulation of the ``Three Represents.''
\278\ The Three Represents are best known in the West for
providing the theoretical basis for allowing private
entrepreneurs and other new social strata to join the Party.
Under Jiang's socialist religious theory, ``the broad masses of
believers'' also have a role to play in ``reform and opening
up, and socialist modernization.'' \279\ But only those
practitioners who accept ``unity and cooperation [with the
Party] in political matters'' will also enjoy ``mutual respect
[with the Party] in belief.'' \280\
The Party's limited theoretical tolerance of religion,
however, has little to do with respect for religious belief or
practice. Instead, the Party sees it as a temporary solution to
the longer-term problem of religion itself and the best means
devised by the Party to ensure its own continued survival.\281\
Party theory dictates that religious belief is a form of
delusion and will inevitably be overtaken by
rational thinking grounded in science. But Party theory also
recognizes that religion can be a powerful force and is better
harnessed and controlled than battled. For the present, Party
goals are best achieved by guiding religious believers in
pursuits that serve the Party's ends, like developing
``production and breeding industries'' and launching ``public
welfare undertakings such as providing assistance to
impoverished areas . . . supporting the army and giving
preferential treatment to the families of soldiers.'' \282\
Party leaders in Beijing publicly embrace this theory-based
co-option of religion, but there is less evidence that Party
cadres at the local level can always easily untangle the
theoretical knot of what is acceptable belief and practice.
These ambiguities have led to ``ideological [confusion],''
\283\ and may partially explain inconsistencies in the
tolerance shown for religious practice in different parts of
China.\284\ Sympathetic Party cadres can take a softer policy
line on religious practice in one locality, while hostile
cadres launch a local crackdown elsewhere, both finding ample
justification in the same Party dogma. Authorities identified
increased propaganda and education as the antidote, and the
2004 National Forum on Religious Affairs launched a new ``Three
Contingents'' program to enhance training for ``leading
government and Party cadres, united front and religious affairs
cadres, and (patriotic) religious personages.'' \285\
China's Religious Affairs Bureaucracy
The highest levels of China's leadership generate national
policies regarding the control of religious affairs.\286\ The
Party's United Front Work Department coordinates these
policies, which are implemented by the State Council's State
Administration for Religious Affairs (SARA). This national-
level bureaucracy is replicated at the provincial and local
levels, ensuring rigorous, albeit sometimes inconsistent,
monitoring and control over religious affairs. The central
mission of this bureaucracy has remained consistent since the
early 1950s: ``to act as an agent of the Party in controlling
religious activities and groups.'' \287\ No one in China may
engage in communal worship unless SARA has authorized the group
to register with the Ministry of Civil Affairs, and no one may
import, produce, or distribute religious material in China
unless SARA has vetted and approved it.\288\ One Chinese
official maintained that this registration requirement ensures
that authorized religious groups are treated as legal persons
and each enjoys the protections of Chinese law.\289\ Chinese
authorities also claim that these legal protections provide
China's citizens ``sufficient'' freedom of religious
belief.\290\
Since the early 1990s, Chinese authorities have emphasized
the creation of a legal framework to control religion, as
opposed to the previous framework relying on Party discipline
among cadres who were often guilty of being under or over
zealous.\291\ In a January 2003 People's Daily editorial, the
director of SARA, Ye Xiaowen, wrote, ``The purpose of managing
religious affairs by law is to safeguard legitimate religion,
curb illegal cults, resist infiltration, and crack down on
crime.'' \292\ The scholar Pitman Potter has succinctly
described the limitations of China's more recent legalistic
approach to religious control:
In a pattern broadly comparable to circumstances in
other societies where law is deployed to privilege
dominant belief systems and marginalize those of the
minority, regulation of religion in China is used not
only to control religious practices but also to express
the boundaries of tolerance and repression so as to
isolate resistance and privilege communities loyal to
the Party/state. Thus, the government promises
tolerance for the compliant and repression for the
resistant.\293\
The Commission has generally welcomed China's progress
toward developing a system based on the rule of law, but in the
case of religion, the Chinese government uses law as a weapon
against believers. Instead of enjoying legal protections,
religious believers in China who choose to practice their faith
outside government authorized forums face what Chinese
authorities term the ``important weapon'' of the united front.
``United front, religious, public security, cultural, and
propaganda'' organs should find ways to operate in unison
against the believer.\294\ Falun Gong practitioners have felt
the full brutality of this unified state repression since the
1999 launch of the Party's ``protracted, complicated, and
intense fight'' \295\ against their peaceful beliefs and
practices.\296\ This repression is carried out within the rule
by law imposed by the Party on the practice of religion.\297\
New and Developing Trends
The Party intensified its crackdown on ``cults'' and
expanded the campaign during 2004.\298\ The campaign, directed
by the State Council Office for Preventing and Handling Cult
Issues,\299\ seeks ``to prevent cults from breeding and
infesting rural villages.'' \300\ Although the People's Daily
highlighted the spiritual group Falun Gong as a particular
target,\301\ the campaign is part of a wider crackdown against
all unregistered religious groups, including Christians and
Buddhists.\302\ In late June 2004, a local Party official in
Lanzhou noted that cracking ``down on free preachers who carry
out missionary work illegally and engage in feudal and
superstitious activities'' must be a key focus for cadres in
the new century.\303\
Party fears of religion ``poisoning the minds'' \304\ of
China's youth have been reflected more prominently in the
Chinese press since last year's annual report. One Chinese
study of middle school students in Beijing showed that 53
percent demonstrated an affinity for Buddhist prayer, and
identified one likely source of this ``superstitious'' thinking
as the Internet, ``currently the latent assassin of the
ideology of young people.'' \305\ In response, Chinese
authorities have launched anti-cult ``education programs'' for
youth throughout China, including propaganda classes directed
at middle and primary school students that encourage the
adoption of ``scientific atheism'' and the rejection of
``feudal and superstitious beliefs.'' \306\ In Xinjiang, more
rigorous state-mandated training of young and middle-aged
clerics emphasizes political training and discourages ``study
of religious tenets.'' \307\ A model program titled ``small
hands holding big hands'' was adopted encouraging students to
report unauthorized religious activity by their relatives at
home.\308\ The Party's stated goal is to train ``a new
generation of patriotic religious personages.'' \309\
Chinese authorities continue to express fears that
``hostile international forces'' will use ``religion to expand
the impact of their values and carry out ideological
infiltration'' into China,\310\ and often portray certain
groups, like Falun Gong, as a ``tool of the Western anti-China
forces.'' \311\ A recent Party statement on religion found that
an important conclusion drawn 40 years ago, that ``missionary
work cannot be separated from imperialist politics, nor can it
be separated from imperialist invasion,'' still offers an
important lesson for today.\312\ Party officials draw on these
fears to encourage nationalist sentiment against the religious
groups it opposes, as members of the Three Tiers of Servant
underground church in Heilongjiang province found when their
beliefs were tied to infiltration by ``external forces'' during
mass arrests in April.\313\ In Tibetan and Uighur areas, where
separatist sentiment often is interwoven with religious
conviction, state repression of religion is particularly
harsh.\314\
Despite government policies on religion, religious activity
in China is surging. Official Chinese statistics indicate that
there are more than 140 million practitioners in all authorized
faiths, but the true number, including those who worship in
private or outside state-controlled channels, is certainly much
higher. After strictly-controlled religious practice was
permitted once again in the aftermath of the Cultural
Revolution, it seems likely the Party overestimated its ability
to harness and then propagandize away religion, and
underestimated the true depth of the Chinese people's longing
for religious freedom.
Religious Freedom for Tibetan Buddhists
Party and state authorities tolerate religious activity by
Tibetan Buddhists within the strict limitations of China's
Constitution, laws, regulations, and policies. According to a
2002 propaganda manual for ``educating'' Tibetan Buddhist
monks:
Citizens' freedom of religion [sic] belief should not
be described as ``religious freedom'' in which
unprescribed religious activity is pursued according to
individual whims. It would be improper for the practice
of freedom of belief to oppose state laws and policies,
and religious activity must be pursued within the
confines permitted by the national constitution, law,
and policy.\315\
An overwhelming majority of Tibetans are Buddhist.
According to data provided to Commission staff by Chinese
officials, monks and nuns constitute about two percent of the
Tibetan population of the TAR, Qinghai, and Gansu
provinces.\316\ One official described this fraction as ``a
proper proportion.'' Most Tibetans, secular and monastic,
strive to maintain their personal faith and avoid running afoul
of official proscriptions.
The Party guides an on-going campaign to transform Tibetan
Buddhism into a doctrine that promotes patriotism toward China
and repudiates the religion's spiritual leader, the Dalai Lama.
A TAR manual issued in 2002 that is used in compulsory classes
of ``Patriotic Education'' in monasteries and convents
instructs that one of the ``fundamental duties of religion work
in the new century'' is ``to forge the over-arching unity of
the vast masses of believers of all China's nationalities under
the banner of Patriotism.'' \317\ Monks and nuns learn that
their religion ``must be relentlessly guided in its
accommodation with Socialist society.'' \318\ A propaganda
manual distributed to TAR cadres and academics in 2002 is aimed
at the secular education sphere and counsels that the Party
strongly advocates atheism and Marxist materialism because they
are ``the essence of excellent human civilization.'' \319\ A
2002 ``anti-splittism'' handbook for monks and nuns targets the
Dalai Lama, his international supporters, and the U.S.
government with a broad, interrelated set of accusations:
From the 1980s onward, international anti-China
forces led by the U.S. made ``containing China'' the
basis of their policy and, taking the ``Tibet Issue''
as an important strategic objective, overhauled their
deceitful methods. Using the issues of ethnicity,
religion, culture, human rights, and the environment,
they distorted the actual prevailing situation in Tibet
and slandered the policies of our country toward its
Tibet region, and stepped up support for the Dalai
clique [to] no end, and their ``Independence'' activity
became even stronger, which they took as a starting
point for their real aims: to attack China's stability,
contain its economic development, and ultimately
destroy it.\320\
Commission staff delegations visiting Tibetan areas have
seen signs that the intensity of religious repression is not
uniform, an impression consistent with privately expressed
expert opinions. Conditions in Qinghai province, and possibly
in Gansu province as well, may be relatively less repressive,
especially where the Gelug sect\321\ of Tibetan Buddhism is in
the minority. The TAR and Sichuan province currently implement
policy in the most aggressive manner. Authorities in Sichuan
have targeted popular Buddhist teachers for persecution. One,
Sonam Phuntsog of Ganzi county, received a five-year sentence
after he advised local Tibetans to ``listen whole-heartedly to
what the Dalai Lama says.'' \322\ He is due for release in
October 2004. Another, Tenzin Deleg, was sentenced in late 2002
to death with a two-year reprieve on charges of separatism and
involvement in causing explosions. Authorities refuse to
disclose details about the evidence against him, asserting that
it involves state secrets.
State-run political education sessions require that monks
and nuns denounce the Dalai Lama's recognition in 1995 of Gedun
Choekyi Nyima as the reincarnation of the Panchen Lama, Tibet's
second-ranking spiritual leader. Chinese authorities installed
another boy, Gyalsten Norbu, several months later and demanded
that the secular and monastic communities accept his
legitimacy. Officials promptly took Gedun Choekyi Nyima, then
age six, and his parents into custody and have held them
incommunicado since that time. The U.S. government has
repeatedly urged China to end restrictions on Gedun Choekyi
Nyima and his family, and to allow international
representatives to visit them. Meanwhile, Gyaltsen Norbu's
appointment continues to stir widespread resentment among
Tibetans.
The Party regards Tibetan Buddhism, like all religions, as
a burden on society and requires monasteries and nunneries in
Tibetan areas to achieve self-reliance.\323\ Charging admission
is a common means of generating income for monastic centers in
larger towns and cities.\324\ The construction of new highways
and airports in the vicinity of Tibetan destinations, along
with a growing Chinese middle class, has made Han tourism
possible on a scale far exceeding that of foreign tourism.\325\
Both tourists and tourism disrupt religious activities and
create the impression that the government promotes treating
Tibetan religious sites as a commodity and cares
little about the effect on religion. Credible reports claim
that monastic study in some of Tibetan Buddhism's most
respected centers of learning is suffering from an
unprecedented onslaught of domestic tourists, many of whom show
no awareness that the only purpose of a monastery is to impart
a religious education. Reports also assert that monks and nuns
face restrictions on religious study and a shortage of
qualified teachers. Many risk the perilous trek into exile in
order to pursue their studies freely. The Chinese government
has demonstrated a commitment to protect religious architecture
and art, but it has not demonstrated a similar commitment to
respect the sanctity of religious practice.
Religious Freedom for China's Catholics and China-Holy See Relations
The Chinese government has tightened its repression of
unregistered Catholic religious practice and believers,
intensifying a campaign begun in 2000. In some provinces,
government authorities have stepped up efforts to intimidate
and harass unregistered Catholics, often pressing them to
register with the Catholic Patriotic Association (CPA).\326\ In
the most extreme cases, government authorities have destroyed
unregistered Catholic church buildings.\327\ Over 40
unregistered Catholic bishops and priests continue to be in
prison, in labor camps, under house arrest, or under strict
surveillance. In November 2003, a U.S. NGO that monitors
religious freedom for Catholics in China reported that
unregistered Catholic Bishop Su Zhimin had been seen under
guard in a hospital in Baoding, Hebei province. A frequent
subject of official U.S. and international inquiry with the
Chinese government since his detention in 1997, Bishop Su's
whereabouts and condition are unknown. The same source reports
the October 2003 arrest of about a dozen unregistered Catholic
priests and seminarians, several 2004 arrests of unregistered
Catholic bishops and priests who were soon released, and the
arrest of ten unregistered priests and seminarians in August
2004.\328\
Chinese religious authorities generally subject registered
Catholics to a milder type of control that concentrates on the
seminaries, where the government subjects seminarians to
interrogation about their religious and political beliefs and
requires their attendance at ideological training courses. In
early 2003, the officially sanctioned CPA and the CPA-approved
bishops issued three documents that strengthened the role of
the CPA in matters previously reserved to the clergy.\329\
These matters include the selection of bishops, the running of
seminaries and convents, and the training of priests and
sisters. The initial implementation of these new policies
generally has not been vigorous, and has varied from diocese to
diocese, in part because CPA supervision is weak or nonexistent
in some areas. In parts of China, CPA officials have been
accused of embezzling church property, or selling or renting it
for personal gain. Registered Catholics have been permitted to
continue developing a fledgling network of social organizations
including orphanages, nursing homes, clinics, HIV/AIDS
treatment centers, and leprosariums, and to engage in disaster
relief activities. Government authorities have also permitted
registered Catholics to create Internet Web sites and to offer
advanced theological training for registered clergy and courses
in basic theology for registered laity.
Relations between China and the Holy See seem to have
deteriorated over the past year. The Chinese government clashed
with the Holy See over China's attempt to consecrate a large
number of official bishops without Holy See approval in January
2000 and responded angrily to the Holy See's October 2000
canonization of 120 Chinese martyrs. But after failing in 2002
to force its own episcopal candidate on the CPA-registered
Catholic diocese of Hengshui, Hebei, the Chinese government
permitted the consecration of Feng Xinmao, the appointee
approved by the Pope, in January 2004.\330\ Although in the
past, Chinese government officials and intermediaries
representing the Holy See met periodically, such contacts have
not occurred since the July 2003 visit to Beijing of a senior
U.S. Catholic prelate, who held discussions with state and CPA
officials.\331\ The Chinese government has so far taken no
visible steps toward renewing diplomatic relations with the
Holy See, which were broken in 1951. The Chinese government
remains unwilling to meet the requirements of the Holy See
regarding religious freedom for unregistered Catholics, papal
selection of bishops, and reduction of the role and authority
of the Patriotic Association.
In 2004, the Holy See publicly protested the persecution of
Catholic clergy for the first time since the mid-1990s. In
March, a spokesman for the Holy See declared that any charges
against arrested unregistered Bishop Wei Jingyi ``should be
made public, as in any lawful state.'' In response, a Chinese
Foreign Ministry spokesman said that ``police authorities have
not taken any restrictive measures'' against Wei. SARA claimed
that Bishop Wei was stopped for questioning after having
traveled abroad with a falsified identity card. In April, the
Holy See also declared the arrest of unregistered Bishop Jia
Zhiguo ``inadmissible in a state of law that declares that it
guarantees `freedom of religion' and `respects and safeguards
human rights.' '' In both cases the bishops were
released.\332\ In May, June, and September, Chinese government
arrests of additional bishops, priests, and laypeople prompted
additional protests from the Holy See.\333\
The situation for China's Catholics continues to change.
The two most important developments are the reconciliation of
the official clergy to the Holy See and the growing
reconciliation between
unregistered and registered Catholics. In 2004, the Vatican
announced that 49 of the 79 official bishops have privately
established communion with the Holy See.\334\ Those who have
done so are becoming more forthright. In an interview with a
foreign journalist, Li Duan, the CPA-approved Bishop of Xi'an,
declared, ``The Pope is the head of the Church . . . The Pope
has the right to govern and supervise all the Church's
activities, including the election of bishops. We will never
deny that the Pope has the right to do so.'' \335\ A younger
generation of registered Catholic priests frequently has
refused to be ordained by bishops not in communion with the
Holy See or to attend episcopal consecrations performed by
them. Yet a minority of the registered Catholic clergy
continues to adhere to the Chinese government's vision of a
national Catholic Church independent of the Holy See. In April
2003, the government rewarded Bishop Fu Tieshan of Beijing for
his service to this vision by making him a vice-chairman of the
National People's Congress (NPC).\336\ Although not discussed
openly, the relationship of official bishops to the Holy See
framed the discussions at a July 2004 meeting of the National
Conference of Chinese Catholic Representatives. Almost half of
the registered bishops refused to attend this joint meeting of
the CPA and the registered bishops'
conference. Speaking to the Conference, senior Politburo member
Jia Qinglin and Ye Xiaowen, Director of SARA, insisted on the
``autonomy'' of the Chinese Catholic Church in the matter of
episcopal ordination.\337\ Ordination of bishops is a question
of increasing importance to the Catholic Church in China, as
many bishops are elderly. In the registered community, many
candidates are reluctant to accept episcopal succession in the
current atmosphere; in the unregistered community, candidates
who have the proper level of theological education are
difficult to find within a given diocese.
Despite the difficult issues facing China's Catholics, the
registered and unregistered communities keep moving closer
together. The increasingly open loyalty of the registered
clergy to the Holy See has earned them growing acceptance from
underground Catholics. Some unregistered clergy have urged
their members to adopt a conciliatory attitude toward the
registered Church, and many have done so. Most unregistered
Catholics, however, continue to refuse to worship with the CPA-
approved Catholic community.\338\
Religious Freedom for China's Muslims
The Chinese government continues to strictly regulate
Islamic education and practice, particularly in Xinjiang, where
regional policies on religion are designed in part to ensure
that Uighur Muslim children do not develop a strong Islamic
identity.\339\ Private madrassas and mosques are prohibited in
Xinjiang,\340\ and children under 18 years of age cannot
receive religious instruction, including private Koranic study
at home.\341\ Chinese authorities impose harsh travel
restrictions on imams in Xinjiang,\342\ and they must
demonstrate ``good political quality'' \343\ before they can
participate in the state-run propaganda classes that are
mandatory for preaching or leading prayer.\344\ The state-
authorized China Islamic Association has begun implementing a
policy that directs Muslims to interpretations of the Koran and
Hadith that conform to Party guidelines.\345\
Following a gradual increase in Party tolerance of religion
beginning in 1978, Islamic education and practice surged in
Xinjiang. By the late 1980s, regional authorities became
concerned that Islam was weakening the Party's influence.\346\
In response, the Xinjiang government issued a series of laws
and regulations to ``control'' Islam.\347\ These laws and
regulations, and their successors, continue to govern Islamic
education and practice today. They prohibit Muslims from
unauthorized organizing,\348\ accepting foreign
contributions,\349\ or printing or distributing religious
materials without explicit permission from authorities.\350\
Authorities in Xinjiang have also cracked down on the
construction of mosques.
Chinese government rhetoric attempts to cast suspicion on
Muslims in Xinjiang. For example, according to one official in
Urumqi, before 1999 the number of mosques in Xinjiang far
exceeded the ``the needs of normal religious activity,'' \351\
and ``nearly all the illegal activities or disturbances in
Xinjiang are connected to religion.'' \352\ According to a
member of the Xinjiang Academy of Social Sciences, the most
prevalent ``illegal religious activities'' in the region
include private underground Koranic study, trans-regional
missionary work, and Talib (student) activities.\353\
Chinese authorities seem to be implementing policies likely
to generate further Uighur alienation and resentment rather
than national unity. A recent Party Central Committee document
noted that the major dangers to maintaining stability in
Xinjiang are ethnic separatism and illegal religious
activity.\354\ Chinese authorities accuse ``ethnic
separatists'' of trying to ``politicize the problem of
religion,'' and emphasize the importance of drawing a clear
distinction between these two ``dangers.'' \355\ However,
strict and often insensitive Chinese policies toward Uighurs
and government efforts to categorize long-held Uighur
aspirations for increased autonomy as ``splittism'' or
``terrorism,'' may be just as responsible for linking the two
issues. According to one U.S. scholar, Islamic piety or
practice cannot be understood in isolation from politics, but
it should also not be simply reduced to politics.\356\ ``Uighur
religiosity has political content, but state interventions
have, indeed, politicized it further.'' \357\ Public security
officers reportedly arrested a young Muslim poet in January
2003 for chanting a verse in public. ``Security officials told
foreign journalists . . . (that) . . . the young man was guilty
of `spiritual terrorism.' Officials said the poem `attacked our
government policy' regarding ethnic minorities.'' \358\
Chinese authorities may have overreached in the continuing
crackdown on Uighur ``separatism.'' According to a recent study
by a U.S.-based human rights NGO, ``the Chinese authorities are
sowing the seeds of an ethnic resentment so profound as to
jeopardize the very stability they claim to defend.'' \359\
Rather than focusing attention on ``the extremely small number
of ethnic separatists . . . (engaged) in violent terrorist
activities,'' \360\ Chinese authorities have instituted harsh
religious policies that discriminate against all Uighurs, based
on the false premise that most Uighurs support radical and
violent Islamist separatism and terrorism. In fact, Uighurs are
``divided from within by religious conflicts, in this case
competing Sufi and non-Sufi factions, territorial conflicts,
linguistic discrepancies, common-elite alienation, and
competing political loyalties.'' \361\
Religious Freedom for China's Protestants
China's unregistered Protestant house churches suffer
continued government intimidation, harassment, and, in some
cases, severe repression.\362\ Although the Party justified
some of these actions based on claims of church ties to
external forces,\363\ in fact they are the product of the
Party's concern about the rapid increase in house church
membership and the existence of a loose network linking these
congregations through the personal ties of some church leaders.
One U.S. scholar has suggested that the Party perceives the
house church movement as an especially serious threat because
membership, estimated in the tens of millions, has grown as
churches have become ``increasingly Sinicized through the
inclusion of features of folk religion and traditional cultural
forms.'' \364\
Despite the broad appeal of the house church movement, the
Party's fears of a Protestant mass movement challenging its
authority seem groundless. Increasing Sinicization has caused
division rather than unity among house churches in many
cases.\365\ The highly sectarian tendencies of some
congregations led one group of church leaders in 1998 to
condemn heretical teachings and ask the government to ``change
the definition of a `cult' from meaning simply any Christian
group that didn't register with the (state-authorized) Three
Self Patriotic Movement.'' \366\ Although many house church
leaders seek unity among congregations, most have shown little
inclination to challenge the state, and ``some pastors say
their groups are more concerned about internal divisions and
attacks by `heretics' and `cults' like the `Eastern Lightning'
(whose leader claimed she was the Christ incarnate) than they
are about state repression.'' \367\
Despite the apparent lack of any real threat to Party
authority or public safety, the Party intensified its ``anti-
cult'' crackdown against the house church movement in 2003 and
expanded the campaign in 2004. Xiao Biguang, a leader in the
South China Church, and Zhang Yinan, a house church historian,
were arrested in September 2003. Police cited Zhang's ``hopes
for the destruction of Chinese government bodies'' during his
sentencing to two years of re-education through labor in
October.\368\ He was reportedly beaten after arriving at the
labor camp.\369\ Xiao Biguang, who was organizing the legal
defense for imprisoned South China Church founder Gong
Shengliang and had revealed that prison authorities had nearly
beaten Gong to death, was released from detention in October.
Pastor Gong was arrested in August 2001 and charged with
premeditated assault, using a cult to undermine the
implementation of law, and rape. The cult charges were dropped,
and Gong's December 2001 death sentence was commuted to life in
prison, but Pastor Gong continues to endure serious abuse from
prison authorities in Wuhan.\370\
In October 2003, Zhang Hongmei, a house church member in
Shandong province, was reportedly beaten to death after being
detained by police for ``illegal religious activities.'' The
day before her death, police had demanded that Zhang's family
pay the equivalent of a $362 fine for her release.\371\ Three
house church leaders--Liu Fenggang, Xu Yonghai and Zhang
Shengqi--were tried in secret in Hangzhou, Zhejiang province in
March 2004. The original charges of inciting the gathering of
state secrets were amended to providing intelligence to
organizations outside of China.\372\ According to a U.S.-based
human rights NGO, the arrests were in response to a report
released by Liu detailing the severe repression of Christians
in Hangzhou. Xu had printed the report and Zhang had
disseminated it on the Internet.\373\ On August 6, the
Intermediate People's Court in Hangzhou sentenced Zhang, Xu,
and Liu to one, two, and three years in prison, respectively. A
U.S. NGO that monitors religious freedom in China reported the
abduction by police of Three Tiers of Servants church leader Xu
Shuangfu in Heilongjiang province and the arrest of scores of
his followers during April 2004.\374\ One of those arrested, Gu
Xianggao, was beaten to death while in police custody.\375\
Xu's condition and whereabouts remain unknown.
Compared to the highly vulnerable house churches, China's
authorized Protestant congregations operate comfortably within
the state's religious bureaucracy, in effect enduring ``the
constraints imposed on their parishes in exchange for the
opportunity to worship in public.'' \376\ Oversight by two
Chinese organizations under the SARA, the Three Self Patriotic
Movement (TSPM) and the China Christian Council, ensure that
China's registered Protestant churches conform to state
religious guidelines.\377\ Approximately 13,000 Protestant
congregations are registered to hold services in China.
Registered pastors are paid by the state and are subject to
removal if the government believes they have become too
evangelical. Church officials often complain in private about
state interference and restrictions. According to these
officials, SARA decides ``how many pastors the TSPM may ordain
in any six-month period, how many meetings TSPM pastors can
hold in any one-month period, and who is permitted to teach at
and graduate from China's 17 official Protestant seminaries.''
\378\
As in other areas of religious affairs, inconsistencies
exist in official policy toward Protestants, and some see a few
small signs of hope for limited change. Some house churches
have reportedly been successful in appealing to the principles
of the Chinese Constitution ``to obtain reparations for harm
done to their leaders or facilities.'' \379\ In 2001, the Party
seemed prepared to begin allowing house churches to forego
registering with the TSPM,\380\ but this possibility apparently
was abandoned in favor of the current crackdown on house
churches.
III(d) Freedom of Expression
FINDINGS
China's Constitution guarantees Chinese
citizens freedom of the press, but China's laws and
regulations explicitly prohibit Chinese citizens from
exercising this right.
Chinese authorities continue to impose strict
licensing requirements on publishing and news
reporting. Authorized publishers are subject to
government management and censorship; unauthorized
publishers are subject to closure and civil and
criminal penalties.
China's government continues to intimidate and
imprison those who express opinions that Communist
Party and government officials deem embarrassing or
threatening.
Chinese authorities continue to attempt to
prevent Chinese citizens from accessing news from
foreign sources, and are receiving assistance from
commercial enterprises, who must either impose
political self-censorship or risk being shut down.
Chinese citizens must rely upon organizations
outside of China to circumvent government Internet
censorship.
The flow of government-controlled information
continues to increase.
Introduction
China's government continues to suppress freedom of the
press in a manner that contravenes its own Constitution.
China's Constitution guarantees Chinese citizens freedom of the
press, but one prerequisite for a free press is the absence of
licensing requirements that act as barriers to engaging in
publishing. Chinese
authorities continue to impose strict licensing requirements on
publishing and news reporting. By requiring publishers to
obtain and maintain a license, Chinese authorities control who
gets to publish (by refusing to grant a license), ensure that
the government is represented in all publications (by requiring
an enterprise to have a government sponsor in order to obtain a
license), and intimidate and silence those who have been
authorized to publish (by revoking, or threatening to revoke, a
license).\381\ As long as China's legal system imposes these
prior restraints, Chinese citizens will not be able to exercise
their right to freedom of the press.
Chinese authorities continue to expend significant human,
legal, and technical resources to silence their critics and
censor information from sources the government cannot control,
influence, or censor.
The Chinese government tolerates discussion of political
issues, provided that no criticism is directed at Party and
central government actions or policies, and that such
discussions are restricted to forums that are either closed to
the public or subject to government monitoring and censorship.
As the head of the Party's Central Propaganda Department told
the producers of one television news program, news reporting
must be ``conducive to implementing the Party's line,
principles and policies'' and enhance the ``people's trust in
the Party and the government.'' \382\
Promising Developments
The Commission notes several developments that have had a
positive impact on the lives of Chinese citizens. Authorities
continue to allow the selective publication of information that
previously they would have deemed too embarrassing or
threatening, such as corruption, discussions of government
policies, and deaths owing to natural and man-made disasters.
For example, China's state media carried reports of the
democracy march in Hong Kong in July 2004. Nevertheless,
China's government, and not the press itself, remains the final
arbiter of what can be published: none of the state media
reports mentioned that the Hong Kong march involved hundreds of
thousands of demonstrators who were demanding more democracy.
The Chinese government is allowing citizens more access to
different types of government information.\383\ Government
departments are also increasing the number of official
spokespersons available to field news media inquiries.\384\
Chinese officials appear prepared, however, to use the
spokesperson system to restrict the flow of information to the
public by creating a single authorized channel through which
the government permits reporters to ask questions of government
departments.\385\
Media outlets in China are increasingly operated as
commercial enterprises.\386\ This change in organization has
made the media more responsive to audience demands, but this
``enterprization'' is not the same as genuine
``privatization.'' The Chinese government has licensed some
private and foreign publication distributors,\387\ but private
publishing remains illegal,\388\ and authorized publishing
enterprises remain subject to government management,
sponsorship, licensing, and citizenship requirements.
Publishers must also obey government orders to censor
politically sensitive content.
The government has required most news publications to
become financially self-supporting, and this commercialization
has caused an increased emphasis on investigative reporting and
timely delivery of news. Because the government censors
negative reporting on senior officials, investigative reporting
is limited to subjects that do not criticize the Party or the
central government, such as foreign affairs and local
news.\389\
The Media as a Political Tool: Supervision of Public Opinion, Abuse,
Corruption, and New Directions in Media Regulation
The Chinese government has transformed the concept of
``freedom of the press'' from the principle that individuals
should have the right to publish into an ethical duty to
publish and censor for the benefit of the Party.\390\ The Party
has always viewed publishing as a tool for securing its hold on
power, not as an individual right,\391\ and the government
continues to treat the press as a political tool\392\ and to
regulate it accordingly.\393\ Chinese government authorities
ensure that the press fulfills its duty to the Party by
requiring that all publishers be licensed by the government.
Publishers must also be sponsored by a government agency,\394\
and the General Administration of Press and Publication (GAPP),
the National Administration of State Secrets, and the Party's
Central Propaganda Department act as the final arbiters of what
types of politically sensitive material may be published.\395\
The government continues to treat the press both as a
propaganda tool\396\ and as an agent for domestic information
gathering. Chinese authorities refer to these dual roles of the
news media--to act as both the ``eyes'' and the ``mouthpiece''
of the government--as ``supervision of public opinion.''
According to the Party, supervision of public opinion should
originate with ``the masses of people going through the news
media to publicly implement democratic supervision of the Party
and the government.'' \397\ In practice, however, ``supervision
of public opinion'' means that all news media in China must
serve the Party in two ways. First, the media monitors public
sentiment and reports on certain topics (and censors others) in
a manner that allows the Party to manipulate public
opinion.\398\ For example, after dozens of people died in a
public stampede in February 2004, the Beijing municipal Party's
propaganda office instructed all local media outlets to publish
the same news reports.\399\
The second way that the Chinese government requires the
news media to implement supervision of public opinion is by
monitoring the public's opinion regarding China's leaders and
their policies, and relaying this information back to the
leadership. For example, if a journalist in China submits a
story that an editor deems too politically sensitive to
publish, Chinese law requires the editor to designate the story
as ``classified,'' and, instead of publishing it, treat it as a
secret government document.\400\ The editor must then pass such
documents directly to the government agency that manages the
publisher.
Until recently, Chinese authorities could carry out
supervision of public opinion easily because the number of news
reporting agencies in China was small. The Xinhua News Agency,
a government agency directly under the State Council, was the
country's primary news gathering and publishing agency.\401\ In
addition, the government directly managed and subsidized all
news publications. News gathering organizations have
proliferated rapidly in the past few years, however, and the
government expects them to operate as commercial
enterprises.\402\ The reporting priorities of these commercial
publishers differ from directly subsidized publications, and
Chinese authorities are seeking to ensure that they continue to
channel information that helps the Party maintain power. One
method the government employs is establishing relationships
between publishers and government agencies outside of the
traditional sponsorship hierarchy. For example, in January
2004, the People's Daily reported that several media groups in
China had formed an ``information sharing'' arrangement with
the Beijing Municipal Procuratorate.\403\ The following month
the Procuratorate issued regulations on how they would handle
such information.\404\
Chinese authorities require anyone wishing to practice
journalism to obtain a license.\405\ In conjunction with this
requirement, the GAPP (the Chinese government agency primarily
responsible for censoring books and periodicals)\406\ launched
a Web site that now lists the names of persons who are
forbidden to report news.\407\ In January 2004, the government
launched a campaign to shut down branches of newspapers that
had not acquired appropriate government authorizations.\408\
Chinese leaders distract attention from the absence of
freedom to publish by focusing propaganda efforts on ethical
problems in the news media. Articles appear almost weekly in
the state-controlled press decrying the abuses of and by the
press and exhorting reporters and editors to engage in
supervision of public opinion. But no articles raise the lack
of individual freedom to publish, or question whether it is
appropriate for the press to be regulated as if it were a
government agency.\409\
Because the commercialization of the news media complicates
government efforts to implement censorship, authorities have
begun to employ new tools to silence and intimidate the news
media. For example, for several years the publications of
Guangdong province's Southern Group have been among the most
liberal, popular, and respected in China. In the past, the
government has relied upon ``traditional'' censorship
techniques, based on its licensing and managerial authority, to
control Southern Group publications.\410\ In January 2004,
however, the authorities disciplined the Southern Group's
Southern Metropolitan Daily by detaining several current and
former senior editors and managers, and charging two with
economic crimes.\411\ Many scholars and citizens in China
objected that the charges were without legal basis, and that
Guangdong authorities exploited China's immature financial
regulatory system and the news media's ``quasi-governmental''
status to punish the editors of a newspaper that had
embarrassed the provincial leadership.\412\ Web sites that
protested these prosecutions were accessible for a few weeks,
but were taken down when the controversy began to attract
increased domestic and international attention.\413\
The Chinese government has also undertaken projects to use
the public to improve the reach of its censorship. For example,
in January 2004, as part of a ``Sweep Away Pornography and
Strike Down Illegal Publications'' campaign,\414\ the Ministry
of Public Security set up a nationwide hotline that people
could call to report publications with ``serious political
problems'' and receive rewards.\415\ In February 2004, Sun
Jiazheng, Minister of Culture, said that regional cultural,
finance, public security, industry, and commerce departments
were to reward people for reporting illegal Internet use,
including posting essays calling for democracy and reform.\416\
Several provinces have also instituted ``media supervisor''
systems, in which the government hires private citizens ``to
monitor local media for accurate reporting and orderly
distribution . . . [and] report problems to the provincial
propaganda department.'' \417\
Prior Restraints
As the Commission noted with respect to religion [see
Section III(c)--Freedom of Religion], while China's progress
toward developing a system based on the rule of law has been
laudable, in the case of freedom of expression, China is using
law as a weapon. Instead of protecting freedom of the press,
laws in China impose
extensive administrative licensing requirements on all forms of
publishing. No one may publish a book, newspaper, magazine, or
commercial Web site in China without a government agency
sponsor and a license from the GAPP. Individuals cannot legally
publish, since Chinese law continues to restrict the right to
publish to enterprises with a large amount of registered
capital.\418\ The government has the authority to revoke any
publisher's license and force it to cease publishing.\419\
In October 2003, the GAPP completed a campaign in which it
revoked the licenses of over 600 newspapers.\420\ In February
2004, Chinese authorities issued an order stating that
government agencies that sponsored publications should
strengthen their ``opinion guidance'' over those publications,
and publishers should conscientiously accept the supervision
and management of their government sponsors.\421\
In January 2004, the GAPP awarded 50 companies licenses to
publish on the Internet.\422\ Under Chinese law, anyone who
operates a commercial Internet publisher without a license is
engaged in illegal publishing and may be shut down at any
time.\423\ For example, in January 2004, a Beijing court
refused to hear an appeal by Li Jian, the operator of a civil
rights Web site, against a lower court's decision supporting
the Beijing Communications Administration's (BCA) closure of
his site. While Li Jian said his site was not commercial, and
therefore did not have to be licensed, BCA officials said that
the government had the right to shut down the site because it
included an unlicensed bulletin board system, and Mr. Li had
not provided accurate contact information and ID card number
when he registered the site.\424\
The government continues to require that all books
published in China be assigned ``book numbers,'' and the
authorities determine who is allowed to publish through their
exclusive control of the distribution of these numbers. In
October 2003, the GAPP banned 19 dictionaries.\425\ In July
2004, it banned 30 periodicals for illegally using registration
numbers belonging to other periodicals.\426\ In January 2004, a
court in Hefei, Anhui province, sentenced two men to prison
terms of nine and seven years for ``unlawful operation of a
business.'' Their crime was to publish books of love poems
using illegally purchased book numbers.\427\
In addition to the GAPP, numerous other agencies
participate in the government censorship regime. The State
Administration of Radio, Film, and Television (SARFT) issued
regulations reaffirming the requirement that political
filmmakers submit their screenplays for approval before
releasing their films.\428\ The State Meteorological Office
issued regulations prohibiting Chinese media outlets from
publishing weather reports without prior government
authorization.\429\ The Ministry of Public Security has
increased surveillance of mobile phone short text messages\430\
for ``false political rumors'' and ``reactionary remarks.'' \431\
In October 2003, several Party and government agencies jointly
established the ``Central Leading Group for the Coordination of
Work To Improve Publications'' to ensure that all publications
``do not have problems with political orientation.'' \432\ In March
2004, the Ministry of Culture banned a foreign computer game because
it discredited the image of China.\433\
Government Censorship
Chinese authorities continue to impose restrictions on who
may publish news and who can discuss certain topics. In
February 2004, Chinese authorities ordered senior managers at
Sina.com, Sohu.com, Netease (163.com), and other Internet
portals to close news chat rooms and stop using live Web
broadcasts, translating foreign news, and doing online
interviews with scholars, artists, and professionals. Managers
were instructed to rely exclusively on news from Xinhua, the
official news agency.\434\
The government also determines which news topics are
completely forbidden. For example, in October 2003, the
Minister of Health stated that news media outlets could not
publish anything regarding SARS unless the Ministry of Health
had first approved the report.\435\ In November 2003, the
Beijing municipal government issued the ``Opinion on Carrying
Out the Work of Housing Demolition and Relocation Well to
Safeguard Social Stability,'' requiring propaganda departments
to ensure that all reports on demolition incidents ``take
social stability as their starting point.'' \436\ Pursuant to a
bilateral agreement, Chinese authorities aired Vice President
Cheney's March 2004 address to students in Shanghai in its
entirety, but government censors eliminated references to
political freedom and Taiwan, as well as his answers to
questions after the speech, from the version posted on state-
owned Web sites.\437\
While remaining pervasive and repressive, Chinese
government censorship is becoming less monolithic. For example,
in August 2003, government officials in Dingnan county, Jiangxi
province, removed pages of the People's Daily before it was
distributed in the county. The pages included a report
regarding corruption in the county government. In September
2003, China's national media, including the China Youth Daily,
the People's Daily, and Xinhua, carried a series of reports
decrying the Dingnan censorship, which they deemed
``appalling.'' In another example, China's State Council
included information in one of its reports from organizations
such as Human Rights Watch and Reporters Without Borders, even
though China's government prohibits these organizations from
operating in China, and attempts to prevent Chinese citizens
from accessing their Web sites.\438\
Other examples of Chinese government censorship during the
past year include:
In September, a Chinese scholar published an
article critical of local government officials who had
enacted regulations prohibiting the media from
publishing opinions that contradict court judgments.
The scholar did not say, however, which local
government he was criticizing.\439\
In January, the GAPP issued regulations
restricting the right to publish books on reforming the
Constitution to three publishing houses.\440\
In March, managers of a state-owned television
station in Tibet were punished for showing brief images
of the banned flag of independent Tibet.\441\
In March, Hong Kong media reported that
Chinese authorities told Mao Yuanxin, Mao Zedong's
nephew and his special liaison person during the post-
Cultural Revolution period, that he could not publish
his memoir because it included ``instructions,''
``exhortations,'' and ``comments'' by Mao Zedong that
had not been made public previously.\442\
Also in March, another Hong Kong publisher
reported that Chinese authorities had forbidden Li Peng
from publishing his memoir, which, according to the
report ``sought to explain how leaders in the central
government were divided over what to do about the
weeks-long pro-democracy protests in Beijing's
Tiananmen Square.'' \443\
In May, China's domestic media reported on a
journalist attempting to cover unrest relating to
demolitions in Chenzhou, Hunan province. According to
the reporter, city government officials had issued an
order that no municipal agencies were to cooperate with
reporters from several television news programs who had
recently arrived to cover the story.\444\
In July, economist Mao Yushi told the South
China Morning Post that the publisher of his book, Give
Freedom to Ones You Loved, had received an order to
stop making new prints and to cease distribution of
unsold copies.\445\
Self Censorship
Because Chinese authorities can revoke a publisher's
license, the Party and government are able to ensure that
Chinese news outlets remain on their side.\446\ Chinese news
publishers occasionally include comments somewhat critical of
China's central government in their English publications, but
edit such comments out of Chinese language versions.\447\
Publications often engage in self-censorship after-the-fact,
based upon how the government decides a problem should be
handled. For example, after Zheng Enchong's conviction in
October 2004, the Web site of the China Economic Times, a
publication put out by the State Council's Development and
Research Center, briefly carried an article entitled ``Is
Demolition a State Secret? '' questionning whether the
government had the authority to designate information regarding
demolition protests as a state secret. The article was quickly
removed from the site.
Because Chinese authorities can refuse to allot book
numbers, book publishers refuse to publish works unless they
can purge them of politically sensitive material.\448\ For
example, in September 2003, the authorized Chinese publisher of
Hillary Clinton's memoir, Living History, censored several
passages critical of China from the Chinese translation of her
book without her permission.\449\ To circumvent China's book
censorship regime, some authors allow mainland Chinese
publishers to remove political material that Chinese
authorities would find objectionable, but also have the
unexpurgated edition published in Hong Kong.\450\ A review of
recent scholarly literature on the media and journalism
demonstrates the hand of both government and self-censorship in
China:
Most books published in China dealing with
news media issues ignore the question of China's lack
of freedom of the press.\451\
Books that discuss how the law protects (or
does not protect) journalists discuss the situation in
foreign countries,\452\ but do not discuss the large
number of journalists and other writers currently in
prison in China for their writings.\453\
Books that discuss the problems facing China's
domestic news media focus on the lack of ethics and
professionalism in China's media, but do not discuss
the problems caused by China's licensing and censorship
systems.\454\
Books comparing Chinese and Western news media
either ignore the issue of freedom of the press,\455\
or only address it in the context of problems facing
the foreign media and ignore the issue with respect to
China's own legal system.\456\
Books that address the topic of freedom of the
press in China repeat Communist dogma on the topic and
reach the conclusion that Chinese journalists do not
face any inappropriate restraints on their freedom of
expression.\457\
As with the publishers of books and periodicals, China's
Internet operators also exercise extensive self-censorship,
both to comply with Chinese law, and to avoid offending the
government. Internet cafes employ staff to monitor which Web
sites their customers are using and to tell them to stop
visiting ``illegal'' sites. Internet Bulletin Boards use
software to block posts containing words designated as
forbidden by ``relevant government agencies.'' They also employ
staff to monitor and delete politically sensitive articles that
users try to post, and ban users who attempt to post
politically sensitive materials too often.\458\ In December
2003, Sina, Sohu, Net Ease and dozens of other Internet news
outlets jointly signed an ``Internet News Information Service
Self-Discipline Pledge'' promising to ``voluntarily submit to
government administration and public supervision.'' \459\
Self-censorship is highly visible on Internet search
engines based in China. While a search for the term ``China
human rights'' on the U.S.-based search engine ``Google''
returns a mixture of China-based and non-China based Web sites
as the top results, the same search on the popular China-based
search engine ``Baidu'' does not return the Web sites of any
human rights organizations that are not China-based. A search
for ``Falun Gong'' on Google returns over 400,000 results,
while the same search on Baidu returns no results.\460\ U.S.
companies that operate Internet portals based in China have
agreed to Chinese government requirements to monitor users and
remove ``harmful'' information, and must either censor their
search engine results or risk being closed down. For example,
Yahoo's Internet search engine for users in China
(www.yahoo.com.cn and www.yisou.com) censors search results to
exclude sites for the Voice of America, Radio Free Asia, and
Human Rights in China, as well as sites discussing Falun Gong,
Tibetan independence, and the 1989 Tiananmen Square massacre.
Also, Google designed its Chinese language news aggregation
service so that users in China do not retrieve results from
dissident news Web sites that Chinese authorities have
blocked.\461\
Monitoring, Jamming, and Blocking of Outside Information
Chinese government policies continue to reflect official
concern that Chinese citizens increasingly have access to
political information from sources the government cannot
control, influence, or censor.\462\ For example, in May 2004,
SARFT issued a notice requiring broadcasters to reject shows
that ``promote Western values, lifestyles, and social
systems,'' especially under the guise of educational,
scientific or cultural programming.\463\
Chinese authorities continue to devote considerable legal,
human, and technical resources to blocking information from
foreign sources. For example, in July 2004, Forum 18 released a
study showing that many foreign religious Web sites are blocked
in China.\464\ Chinese authorities also continue to block the
Web sites of Voice of America, Radio Free Asia, the Chinese
language versions of the BBC, Deutsche Welle, and other foreign
news Web sites, and the Web sites of major human rights groups
that report on China.\465\ In addition, the Chinese government
also employs thousands of ``Internet police'' to enforce laws
relating to Internet security and content.
Chinese authorities appear to recognize, however, that they
cannot completely stop the influx of information without
crippling economic growth.\466\ The government's response has
been to allow some Chinese citizens to have limited access to
foreign information, provided it does not weaken the Party's
political power. As a result, the government is relaxing
restrictions on sources of both non-political information and
political information with a limited audience, while tightening
controls on sources of political information with a mass
audience. For example, while Chinese authorities have begun to
allow foreign participation in the distribution of
publications, the GAPP says there is no plan to allow
foreigners to publish in China.\467\ In January 2004, the GAPP
vowed to crack down on what it termed ``outlaw publications''
from Hong Kong that were publishing in China without a
license.\468\
In December 2003, the government began to allow foreign
firms to hold minority stakes in film studios, and in February
2004 authorities announced that they were lifting the ban on
foreign investment in TV production studios.\469\ Nevertheless,
the Chinese government has stated that foreign companies may
not broadcast news in China.\470\ The central government
continues to attempt to block radio broadcasts by Voice of
America, Radio Free Asia, and the BBC.\471\ In addition,
China's laws continue to restrict satellite dish
ownership,\472\ and government rules require foreign news
broadcasters to send all their satellite feeds through channels
controlled by the government.\473\
Chinese authorities continue to attempt to block human
rights, educational, political, and news Web sites without
providing public notice, explanation, or opportunity for
appeal. The Chinese approach to Internet filtering seems to be
based on the theory that censorship does not have to be perfect
to be effective. Allowing Chinese citizens limited access to
outside sources of information permits the Chinese government
to manipulate public opinion while creating the impression that
it is not seriously attempting to censor such information. For
example, the Chinese government generally allows Chinese
Internet users to access some English-language foreign news Web
sites, but blocks these sites during politically sensitive
times.
At the same time, government authorities generally ignore
the attempts of most Chinese citizens to circumvent the
government's information firewall to access blocked foreign Web
sites, provided these individuals do not disseminate the
information within China. A relatively small pool of people has
access to the Internet and the time, desire, and ability to
circumvent the firewall. By making it difficult, but not
impossible, to access foreign news sources, and punishing those
who distribute that information more widely, Chinese
authorities can dilute the impact of uncontrollable information
sources and more easily monitor who is willing to devote time
and effort to get information critical of the government and
the Party.
During the annual National People's Congress (NPC) meetings
in March 2004, the government shut down domestic weblog
sites\474\ and blocked access to foreign weblog sites.\475\
Users in China speculated that authorities shut down the sites
because some people had employed these forums to publish
opinions on Dr. Jiang Yanyong's letter asking for a
reassessment of the 1989 Tiananmen Square democracy protests.
While domestic weblogs were eventually allowed to reopen,
authorities continue to block weblog hosting services outside
of China.\476\
Chinese authorities continue to look to technological
measures to refine Web site censorship. For example, in
February 2004 the GAPP announced plans to invest 50 million
yuan (about $6 million) to create an ``Internet Publishing
Supervision System'' to control the publication of political
content on the Internet.\477\ Minister of Culture Sun Jiazheng
also called for ``using long-range computer surveillance
systems to carry out 24-hour, real-time monitoring of Internet
cafes,'' \478\ and some locations, such as Shanghai, have begun
instituting video surveillance of Internet cafe users.\479\
To control the flow of information to Chinese citizens, the
Customs Office continues to confiscate political and religious
materials. Chinese law grants customs officials broad authority
to confiscate any publication deemed ``harmful to the
government.'' \480\ The Customs Office maintains a list of the
types of books that may not be imported for political reasons
and uses its authority to confiscate religious materials such
as the Bible and certain scholarly works and politically
sensitive books published abroad, such as The Tiananmen
Papers.\481\ The list, however, is not available to the public.
Customs officials also confiscate Chinese language newspapers
that individuals attempt to bring into China.\482\
Selectively Enforced National Security Laws
The Party and government continue to exploit vague national
security laws to silence Chinese citizens who criticize them
and their policies.\483\ The Commission welcomes the release
over the past year of several political prisoners,\484\ but
regrets that during the same period Chinese security and
judicial authorities detained or sentenced dozens of
individuals for exercising their right to express their
political beliefs.
Chinese courts continue to interpret China's laws in a
manner that favors protecting the government's image over the
right to freedom of expression. For example, in February
Chinese authorities imprisoned five people for using the
Internet to disseminate a story about the persecution of a
Falun Gong practitioner. Published reports did not indicate
that the story's dissemination resulted in any actual or
potential threat to China's national security or public safety.
Nevertheless, the court sentenced these individuals to terms of
5 to 14 years in prison for ``vilifying the government's image
through spreading fabricated stories.'' \485\
The government continues to define state secrets to include
any information that authorities do not wish the public to
know. Chinese authorities have held Uighur businesswoman Rebiya
Kadeer imprisoned in the Xinjiang Autonomous Region for over
four years for allegedly attempting to disclose published
newspaper articles that the government deemed ``state secrets''
after-the-fact. In October 2003, a Shanghai court sentenced
activist and former lawyer Zheng Enchong to three years in
prison for reporting labor and property protests to a foreign
human rights group. In August 2004, a court in Hangzhou,
Zhejiang province sent Liu Fenggang, Xu Yonghai, and Zhang
Shengqi to prison for ``revealing state secrets'' to a foreign
organization because they allegedly discussed the razing of
several churches with foreign human rights groups.\486\ In May
2004, Xinhua reported that a Beijing court sent three
individuals to prison for divulging state secrets because they
had stolen questions on an English examination.\487\
The following is a partial list of individuals that Chinese
authorities have detained and imprisoned during the past year
for exercising their right to freedom of expression. Additional
information on their cases and others will be available on the
Commission's Political Prisoner Database:
Detained: Hu Jia, Ding Zilin, Huang Jinping,
Zhang Xianling, Lu Jiaping, Kong Youping, Zhang
Shengqi, Xu Yonghai, Jiang Yanyong, and Liu Fenggang.
Sentenced: Ma Yalian, Li Jian, Chen Shumin, Lu
Zengqi, Yuan Qiuyan, Yin Yan, Sang Jiancheng, Jiang
Lijun, Li Zhi, Yan Jun, Luo Changfu, He Depu, Cai
Lujun, Du Daobin, Zheng Enchong, and Luo Yongzhong.
Some people who were detained and released have been
monitored by security officers\488\ and ordered not to speak to
the press.\489\ Others have been forced into exile. The Chinese
government's policy of intimidating and arresting those who
criticize the Party or the central government or express
opinions that contravene official views not only disregards the
rights of these individuals to freedom of expression, but also
intimidates many others who would speak out but remain silent
for fear of being punished.
III(e) Economic, Social, and Cultural Rights
III(e)(i) Women's Rights
FINDINGS
China's ongoing economic reforms have
increased opportunities for women to build their own
businesses and gain greater economic power and
security. However, in rural areas, the market
transition has increased fees, impoverishing some
families and harming girls' access to education. Recent
legal reforms have strengthened women's rural land use
rights, which may help build their economic power in
the countryside and generally increase the value of
daughters in the eyes of the general public.
Chinese women continue to suffer from domestic
violence at home and sexual harassment in the
workplace. However, in recent years, central and local
governments have set up programs to publicize the
problem of domestic violence and punish abusers, and
courts have begun to accept cases involving marital
rape and assist women complaining of sexual harassment.
The continued growth of women's associations
and women's studies programs are encouraging women to
mobilize to solve shared problems. The All-China
Women's Federation (ACWF) is playing a positive role in
working with some of these groups and in offering
legislative remedies for outstanding problems.
Women are succeeding as entrepreneurs in China, in some
measures even in comparison to men.\490\ According to a 2004
survey of Chinese entrepreneurs summarized in Xinhua, China had
19.59 million women who were owners or legal representatives of
enterprises. Personal annual incomes for female entrepreneurs
were higher than for males.\491\ However, the survey also found
that less than a third of the female entrepreneurs took out
bank loans, most relying instead on themselves or their
families for investment, prompting the question of whether
skilled women are treated equally by banks.\492\
A gap still exists between the educational levels of men
and women despite significant narrowing since enactment of the
1986 PRC Elementary Education Law. Census figures for 2000 show
the gap narrowing dramatically.\493\ Among Chinese citizens
with higher education, men outnumbered women nearly three to
two, but among 20 to 24-year olds, the figures were nearly
equal. However, a recent study of gender equity in basic
education found that many girls lose their chance for even
basic education, particularly in the poor areas in western
China, because of parental emphasis on the education of
sons.\494\
Traditional rural attitudes toward women, to some extent
based on economic factors, devalue daughters. A long-term study
of the impact of economic change on rural women in a southern
China village found that part of a family's decision to abort
or abandon female babies has been that families with sons
benefit in the periodic reallocation of village lands.\495\
Since the study was completed, however, a Rural Land
Contracting Law was enacted that provides farmers with 30-year
land use rights and prohibits most readjustment and
reallocation of land during that period.\496\ If enforced, this
law should limit the degree to which village officials can
favor sons over daughters in land allocation, improve women's
economic position in rural areas, and perhaps reduce son
preference.
Domestic Violence and Sexual Harassment
Chinese citizens have become increasingly aware of the
serious problem of domestic violence since it was highlighted
at the 1995 Fourth World Conference on Women in Beijing. A
survey in late 2003 by the All-China Women's Federation (ACWF)
found that more than 50 percent of those surveyed ``admitted
having been beaten by their partner at least once in the past
six months,'' while more than 20 percent admitted frequent
beatings and 1 percent had ``experienced systematic domestic
violence.'' \497\ Another recent study found that ``nearly half
of Chinese people believe it is reasonable for husbands to beat
their wives.'' \498\ With increased awareness, however,
attitudes that regard physical abuse of wives as
normal are beginning to change. The number of legal cases
involving charges of domestic violence is steadily rising. In
2002, the ACWF handled ``36,000 appeals for help from wives in
distress, nearly 40 percent more than in 2001,'' and domestic
abuse is now a factor in nearly 60 percent of all
divorces.\499\
Law enforcement entities are also becoming more sensitized
to the crime of domestic violence. In the past, many officials
would not pursue domestic violence cases vigorously, believing
they should not intervene in family disputes. Until the mid-
1990s, law enforcement authorities commonly handled a wife's
complaint of domestic abuse by referring the couple to
mediation.\500\ The related crime of marital rape is also
beginning to get attention in China.\501\ Article 236 of the
Criminal Law does not explicitly state a marital exemption for
rape and courts have preferred to prosecute marital rape under
the more general Section 260 on abuse or maltreatment of family
members.\502\ The question of marital rape in China is
complicated by Article 16 of the 2001 PRC Marriage Law, which
provides, ``Both husband and wife shall have the duty to
practice family planning.'' The Supreme People's Court (SPC)
recently held that this ``duty'' implies a ``right'' for both
spouses to engage in sexual relations.\503\ Unwilling to
interfere with that implied right, the SPC points to Section
260 as the best way prosecute marital rape.
A number of initiatives are now underway to combat domestic
violence.\504\ Community and anti-domestic violence teams,
counseling hotlines, and rescue centers are available to
victims in some cities and nearby rural areas. Educational
programs have been established for judges and police officers,
training programs are in place for staff in domestic violence
centers, and some localities have begun counseling male
abusers.\505\
In recent years, there have been several successful suits
by women against employers for sexual harassment. Women have
obtained judgments ordering defendants to apologize, desist
from harassing women, and, in a few cases, pay damages.\506\
According to one survey, 48 percent of women said they had
experienced harassment and 13 percent said that men had pressed
them for sexual favors in exchange for various benefits.\507\
Ninety percent of callers to a women's hotline complained of
harassment by older men who are their superiors in the
workplace.\508\ The cases have received a great deal of media
attention, and articles have since come out in police
publications expressing support for women facing this kind of
abuse.\509\ Last fall, the ACWF submitted a motion to the
National People's Congress Standing Committee suggesting that
the PRC Law on Protection of Women's Rights and Interests be
amended to define the offense of sexual harassment and
prescribe legal redress.\510\
Women's Organizations and Women's Studies
Even before the Fourth World Conference on Women in 1995, a
large number of organizations focusing on women's issues were
active in China. One source indicates that 2,000 such
organizations had sprung up nationwide by 1989.\511\ The ACWF
has played a supporting role in the development of some
organizations, while other organizations have developed
relatively independently.\512\ Cooperation between the ACWF, a
government organization based in Beijing with branches in most
regions, and independent grassroots groups can be especially
fruitful. For example, cooperation between a grassroots hot-
line dealing with rural violence issues in Henan and the local
ACWF branch led to a TV program ``Keep Violence Far from the
Family.'' \513\ NGOs are likely to have an important role in
solving the current deficit in public services to China's
poorest citizens, particularly women.\514\ The rapid
development of the academic discipline of feminist sociology in
China's universities, with at least 16 new departments
established in 2003 alone, should help Chinese women understand
the nature of the problems that still confront them and
collaborate on solutions.\515\
III(e)(ii) Trafficking in Human Beings
FINDINGS
Trafficking of women and children in China
remains pervasive.
Most human trafficking in China is domestic,
but traffickers also sell Chinese women abroad for
commercial sex and sell women from Southeast Asia and
Korea into prostitution and forced marriages in China.
Chinese law enforcement authorities recently
broke several cases of large-scale trafficking of
infants. This criminal practice is the result in part
of the continued coercive enforcement of family
planning rules.
Domestic trafficking of women and children in China is a
particularly serious human rights abuse. According to a UNICEF
estimate in 2002, at least 250,000 women and children in China
were victims of human trafficking.\516\ Traffickers commonly
sell teenage and young adult women into forced marriages to
farmers in the countryside or into prostitution in China's
cities.\517\ According to some estimates, nearly 50,000 Chinese
women currently live in forced marriages nationwide.\518\ A
1997 study conducted by the United Nations concludes that, in
some villages, 30 to 90 percent of marriages were the result of
trafficking.\519\ The trafficking of women is acute in
impoverished minority areas of Yunnan and Sichuan provinces and
the Guangxi Autonomous Region, where recruiters touting
lucrative jobs in urban areas lure young, uneducated women out
of the countryside, kidnap them, and sell them into
prostitution either within China or abroad.\520\
Trafficking in infants also seems to be on the rise in
China. In one notorious case in Yulin in Guangxi Autonomous
Region, traffickers kidnapped or purchased some 118 infants
from families and hospitals and transported them to other
provinces for sale.\521\ This case shocked the Chinese public
when first exposed in a news article detailing how the
traffickers drugged dozens of the infants and placed them into
travel bags for transport to buyers in Anhui and Henan
provinces. At least one infant did not survive, according to
the news accounts. Yulin authorities prosecuted the head of the
local hospital's obstetrics department, who put the traffickers
in touch with mothers of unwanted infants.\522\ But a relative
of one of the accused argued that the scheme was humanitarian,
because otherwise the unwanted infants would have been
abandoned to starve.\523\
The rising number of trafficking cases in China reflects
the confluence of numerous factors, including the ``one-child''
policy, which has encouraged some parents to abort or abandon
female infants in the hope of conceiving a son; the increasing
disparity between rich and poor; and a lack of knowledge among
ordinary citizens of their legal rights and protections.
The Commission notes that the Chinese government has made
some progress in reaching out to the victims of human
trafficking, but central, provincial, and local authorities
should do more. The U.S. State Department found that China does
not fully comply with the minimum standards stipulated in the
Trafficking Victims Protection Act of 2000.\524\ In addition,
the Chinese government has not signed the U.N. Protocol to
Prevent, Suppress, and Punish Trafficking in Persons,
Especially Women and Children. China's criminal code explicitly
prohibits the trafficking of women and children and mandates
severe punishment for these crimes,\525\ but the law needs to
be refined and brought up to date, according to one Chinese
legal scholar.\526\ In recent years, the Ministry of Public
Security has begun several ``Strike Hard'' campaigns aimed at
curbing trafficking in persons.\527\ Such campaigns, however,
focus on punishment and do not address the causes of the
problem, which include continuing pressure to comply with
family planning rules, the worsening disparity between rich and
poor, inadequate public education in legal rights, and lack of
shelter and legal assistance for victims, especially in rural
areas.
A U.S. research institute studying the issue distinguishes
China from other Asian countries because most of its trade in
humans is domestic.\528\ But the trafficking of persons from
China to other nations is also a global concern. Traffickers
sell women from mainland China into the commercial sex industry
in the United States, Canada, Europe, and Australia, as well as
Singapore, Malaysia, South Korea, Japan, and Taiwan.\529\ Cases
involving the trafficking of Chinese women for prostitution
also have been reported from South Africa and South
America.\530\ Some trans-border trafficking cases involve
multinational criminal syndicates, and rescuing the victims and
bringing the traffickers to justice requires close cooperation
between countries.\531\ The Chinese government has made some
progress in building the necessary international cooperation in
law enforcement,\532\ but most observers believe that Chinese
authorities must do more.
III(e)(iii) Public Health and Human Rights in China
FINDINGS
The Chinese government now recognizes the
severity of its HIV/AIDS crisis and has begun to take
action, but some local authorities continue to abuse
HIV victims to silence their demands for treatment and
assistance and detain the activists who support them.
More Chinese government attention is required in
Xinjiang, where an intravenous drug crisis and a mobile
population make the rapid spread of HIV a threat.
China's aging and poorly-funded health care
system hampers its struggle with a number of major
diseases, ranging from the new viruses HIV/AIDS and
SARS to the traditional threats of tuberculosis and
hepatitis.
China continues to use coercive fines to
enforce its birth control policy. Despite legal
prohibitions on forced abortion and sterilization, some
reports allege that local officials use such tactics
and others describe women using the law to resist them.
HIV/AIDS
The Chinese leadership has made significant progress in the
past year in recognizing the dimensions of China's HIV/AIDS
crisis, formulating new HIV policies, and addressing legal
issues. Premier Wen Jiabao illustrated the change in tone when
he publicly shook hands with AIDS patients at a Beijing
hospital in December 2003. Vice Premier and Health Minister Wu
Yi has made high-profile visits to AIDS villages in Henan,\533\
and has called on the entire country to confront the epidemic.
HIV/AIDS publicity campaigns have emerged in major cities, and
the Party has developed a curriculum and text on HIV for use at
the Central Party School.\534\ Nationwide prime-time television
programs on HIV/AIDS emerged in 2004. In February 2004, the
State Council formed a national level AIDS Prevention and Care
Working Committee, headed by Vice Premier Wu and comprised of
23 central government departments and institutions and leading
officials from seven provinces where AIDS is particularly
prevalent. The Ministry of Health announced in April that it
had begun offering free treatment for HIV/AIDS patients.
In March 2004, China's first local law on AIDS prevention
and control took effect in Yunnan. The law protects the legal
rights of people living with HIV/AIDS and their families and
forbids discrimination against them.\535\ In April 2004, the
Chinese government established its first legal research center
on AIDS-related issues in Shanghai.\536\ Vice Premier Wu has
emphasized that the government must also determine how to
implement the new ``Four Free'' policy in poor and rural areas:
providing free testing, free treatment, free schooling for AIDS
orphans, and free treatment to prevent mother-to-child HIV
transmission. In May 2004, the State Council issued a circular
that outlined a series of urgent measures to slow the spread of
HIV/AIDS.\537\ The circular requires local governments and
leaders to take responsibility for AIDS in their
regions, warning ``those officials breaching [their] duty or
hiding epidemic reports will be severely punished.'' The
circular also orders government at all levels to increase the
amount of money dedicated to combating HIV and, most
significantly, states that funds must be allocated from the
central government when local budgets are insufficient.
Despite these crucial changes in the attitudes and actions
of central authorities, local reports continue to surface about
mistreatment of people living with HIV/AIDS including
discrimination in housing and development. In May, several
people living with HIV/AIDS were detained for more than a week
in Henan. While local authorities said they detained the
villagers for ``violating social order,'' the villagers believe
they were arrested because they were seeking assistance from
provincial authorities to compel local officials to carry out
their agreements to support disease victims.\538\
Central government money and support is particularly
crucial in peripheral areas like Xinjiang. The government
agencies that have a part in fighting HIV have not yet
developed a coordinated response, and often seem unaware of
each other's efforts. For example, in a drug detoxification
center run by the local public security bureau, all inmates
were tested regularly for HIV. Although the results were
forwarded to the Ministry of Health in Beijing, inmates were
never told of their HIV status and were not put in touch with
programs to help them cope with the disease after their
release. Until recently, these agencies in Xinjiang had not
received the
message that HIV was a priority of the central government.\539\
However, the Xinjiang Bureau of Health in Urumqi has conducted
valuable work on a shoestring budget, including a hot-line to
answer HIV-related questions for commercial sex workers, and
HIV intervention projects in minority religious communities.
Other Major Health Challenges
China suffers from a high rate of hepatitis B, usually
spread by exchange of blood or infection from drinking water
contaminated by human waste. Some local regulations
discriminate against hepatitis B victims in employment. The
Ministry of Health estimates that about 20 million people are
infected with hepatitis B and as many as 500,000 people become
infected with, and half that number die of, hepatitis B-related
liver disease each year.\540\ Other estimates put the number of
infected persons as high as 100 million. While there are no
national laws on employment of hepatitis B-infected persons,
some central and local governments prohibit the hiring of
people with certain varieties of the disease. In a recent case
in Anhui province, Zhang Xianzhu successfully sued a government
personnel office, complaining that his job application had been
unjustly rejected because of his hepatitis. The court held that
the personnel office had applied a regulation incorrectly, but
did not invalidate the regulation itself.\541\
Severe Acute Respiratory Syndrome (``SARS'') re-emerged on
isolated occasions in 2004, but did not result in a wider
outbreak as in 2003. In contrast to the government's efforts to
quash news of the initial SARS epidemic in 2003, health
authorities openly announced each case as it became known and
quickly contained each infection. Despite laudable official
openness in this specific instance, relevant Chinese laws still
require journalists to get advance approval before publishing
public health information about broad categories of diseases
classified as ``state secrets.'' \542\
Apart from infectious diseases, perhaps the greatest health
challenge for China today is rural poverty. Chen Guidi and Wu
Chuntao's recent book, A Survey of Chinese Peasants, includes
several accounts of rural residents facing death and financial
ruin because of the high cost of sickness.\543\ In 2002, Dr.
Janos Annus, the WHO representative to China, noted that there
is only minimal health insurance in the countryside: ``Health
insurance coverage for rural people is around seven percent
only--people have to pay from their own pocket. . . . The rural
healthcare system based on the co-operatives was abolished
around the mid 1980s, with the provision that a new system
would be built to replace it. But that system has not been
built yet.'' \544\ The lack of an adequate public health system
has hampered China's response to SARS, and still cripples its
fight against HIV/AIDS. In response, the central government
decided this May to spend 2.073 billion yuan ($252 million) for
the country's public health infrastructure.\545\
Population Control and Family Planning
The Chinese government's use of coercive fines to enforce
its population control policy has not changed in the past
year.\546\ Under the 2002 Population and Family Planning Law,
when a family has a child not allowed by law, family planning
officials can assess a fine and have it enforced by the
courts.\547\ Regulations specify that fines are to be set at
the provincial level. In Shanghai, the fine currently specified
is three times average annual disposable income in the city
(resulting in a fee of more than 35,000 yuan).\548\ While the
law provides for economic coercion of this kind, it
specifically rules out use of physical force in enforcing birth
controls and provides for strict punishment of officials who
fail to observe this prohibition. Reports, however, indicate
continuing resort to physical coercion in some areas and
describe a few cases in which women have claimed protection
against such coercion under these articles of the law.\549\ In
addition, as permitted by the law, some localities have passed
regulations allowing more couples to have a second child under
certain circumstances.\550\ Recognizing that one incentive to
have many children is to ensure support in old age, other
regions have set up funds to compensate one-child families
after retirement.\551\
Some Chinese population studies suggest that China will
eliminate its coercive policies when economic development has
increased the education levels and job opportunities for girls
and women. Scholars urge that in areas of declining fertility,
rigid quantitative controls be shifted to more indirect and
market-based policies.\552\ This shift to greater flexibility
in implementation of birth controls might help resolve two
long-term side-effects of the policy: distorted sex ratios and
rapid aging of the population.\553\ Unless these two trends are
reversed, China will be faced with cascading health challenges
in the future, as some youths turn to traffickers to find wives
and families without daughters struggle to care for frail
elders.
III(f) Freedom Of Residence And Travel
FINDINGS
The Chinese household registration (hukou)
system contributes to discrimination in access to
social services. This discrimination exacerbates
China's stark economic divide between urban and rural
residents.
National and local authorities are gradually
reforming the hukou system, but some of these measures
are slowly shifting the existing system into a set of
officially-recognized class divisions based on wealth,
with an urban underclass composed of rural migrants.
The household registration (hukou) system remains a key
component of the caste-like divide in Chinese society between
urban and rural residents. Massive rural-urban migration
continues to put heavy pressure on the system. Under this
pressure, Chinese national and local authorities are
liberalizing the hukou regime, but rural migrants continue to
suffer significant regulatory discrimination with regard to
basic social services. This discrimination exacerbates the
economic hardships they face on a range of issues such as back
wages, property rights, and the education of their
children.\554\
Chinese migrants are frequently the targets of a wide range
of unfair practices. Urban employers often exploit the tenuous
social status of migrants and their unfamiliarity with their
rights. Chinese factory managers also often require workers to
pay a ``deposit'' to secure a job. Workers lose these deposits
if they return home without permission or before their contract
expires.\555\ Migrants sometimes suffer discrimination in their
home villages, particularly with respect to their property
rights. For example, a large number of legal cases have been
brought recently in Shaanxi province that pertain to the rights
of individuals who have left their village either temporarily
or permanently (such as migrants to urban areas, or women who
have married out of the village), but continue to
retain their rural hukou identification with the village. When
the village distributes money from collective assets, such as
government compensation for the requisition of village land,
the villagers often deny these migrants a share because they
are perceived as outsiders.\556\
Migrants also face official discrimination as a result of
their residence status. In some cases, a regulation explicitly
bars access to social services. Until 2003, for example,
numerous provincial regulations limited legal aid only to
individuals having either a local hukou or a temporary
residence permit.\557\ As Chinese critics have noted, migrants
who wish to obtain a temporary residence permit often must pay
substantial fees, both over and under the table, to various
government agencies.\558\ Consequently, millions of migrants
remain unregistered and cut off from social services. According
to the Chinese news media, fewer than 3 percent of migrant
applicants actually receive legal aid.\559\ Such regulatory
obstacles have resulted in a rural migrant underclass in
Chinese cities that is deprived of many of the social services
their urban neighbors enjoy.\560\
Central government measures adopted recently attempt to
eliminate some of the most blatant discrimination with regard
to social services. For example, the State Council passed
national legal aid regulations in 2003 that do not condition
legal aid on the residence status of applicants.\561\ Despite
such moves, financial resources of local governments often
limit their actual ability to offer these social services to
migrants.\562\ For example, pilot medical projects in western
China aimed at addressing the collapse in rural health care
often exclude migrants because of cost.\563\ In contrast,
relatively well-off southern localities have begun to allow
rural hukou holders to buy into health plans run by urban
governments, with local governments sometimes subsidizing the
migrants' share.\564\
Despite central government measures, the hukou system
continues to facilitate local discrimination because it divides
Chinese society into clear categories and provides a convenient
method for local authorities and residents to identify
migrants. This phenomenon is particularly evident with regard
to the education of the approximately 20 million migrant
children in China. Many city governments see migrant children
as an unwelcome and expensive nuisance, and therefore simply
forbid them from attending public schools, or charge their
parents substantial additional fees.\565\ Over 80 percent of
migrant children pay more than their urban counterparts to
attend school.\566\ Private schools for migrants often find
themselves in conflict with local governments and residents
seeking to close them.\567\ Although the State Council took
steps to ensure a measure of equal treatment in September 2003
by ordering urban public schools to assume the responsibility
of accepting and educating migrant children,\568\ the forward
progress represented by this shift in central policy has been
undercut by the ability of local officials to discriminate on
the basis of hukou identification. In some areas, central
government pressure on local schools to admit migrant students
has led to the extortion of additional fees.\569\ Sometimes
such pressure prompts even more creative forms of
discrimination. Facing central pressure to admit migrant
children to local public schools, township governments in
Ningbo have responded by adopting a ``separate but equal''
policy. Local authorities have designated one particular public
school as the ``migrant'' school, replaced the full-time
teachers with part-time instructors, and redirected local
government education subsidies to the schools serving local
students.\570\
The Chinese government has improved the general treatment
of migrants. The State Council's formal abolition of the
custody and repatriation system in 2003 was a step forward [see
Section III(a)--Rights of Criminal Suspects and Defendants].
The Hangzhou Public Security Bureau has eliminated mass dragnet
sweeps aimed at rounding up migrants.\571\ A new national
identification card law limits the ability of the police to
request identification in certain situations.\572\
A significant number of local governments have begun to
experiment with various forms of hukou reform.\573\ A few have
announced the abolition of temporary residence permits.\574\
But many of these reform measures merely allow a limited number
of relatively well-off rural hukou holders to obtain urban
residence status by demonstrating they have a fixed place of
residence and a ``relatively stable source of support.'' \575\
These requirements are heavily weighted against low-income
rural migrants. Nanjing's new regulations, issued in June 2004,
define ``fixed place of residence'' as ownership of an
apartment or possession of one issued by a work unit.\576\
Hebei province excludes applicants for local hukou from living
in rented apartments.\577\ Both sets of regulations define
``relatively stable source of income'' as holding either a
professional job or one providing income above the government-
established minimum wage.\578\ Similar restrictions are common
in many other local hukou reforms.\579\ These are difficult for
poor rural migrants to fulfill. Such measures are gradually
shifting the hukou system into a set of formal class divisions
based on wealth, giving an official stamp of approval to the
creation of an urban migrant underclass barred from receiving
many social services.
Fundamental reform faces significant obstacles. Guangzhou
public security officials indicate they continue to regard the
residence permit system as an indispensable tool of social
control, particularly of migrants.\580\ Although the NPC is
currently considering draft proposals for a Law on the
Protection of Peasant Rights,\581\ similar legislation has been
under study for years without much progress.\582\ Instead,
Chinese leaders have favored administrative pronouncements to
address the status of Chinese migrants.\583\ As one Chinese
critic notes, ``[Central government] policy attention cannot
completely replace legal protection. Protecting the interests
of peasants requires [that] the law give them corresponding
rights, rather than merely letting peasants run around from
place to place seeking protection by waving national `policy
documents.' '' \584\ Unless the Chinese government affords
effective legal protections to migrants and ends the social
inequalities perpetuated by the hukou system, discrimination
against migrants will continue to create serious social
problems.
IV. Maintaining Lists of Victims of Human Rights Abuses
The Commission is pleased to announce the completion of the
first phase of development of its Political Prisoner Database
(PPD). The Commission is now populating the database with
political prisoner information provided by reliable sources in
China, the United States, and elsewhere. For additional
information about the Commission's standards for political
prisoner information, please see ppd.cecc.gov. The Commission
has developed the PPD pursuant to Section 302(b) of Public Law
No. 106-286 [22 USC Sec. 6912(b)], which requires that the
Commission compile and maintain lists of victims of human
rights abuses.
The Political Prisoner Database provides a new and powerful
research tool for U.S. advocacy on behalf of Chinese citizens
imprisoned for the exercise of rights guaranteed to them by
international law. Although primarily designed for official
U.S. government use for advocacy and issue research, the PPD
will also assist private human rights researchers, non-
governmental organizations, scholars, and other advocates in
tracking prisoner case information, monitoring individual
cases, and assessing trends in the Chinese government's
treatment of prisoners of conscience over time. As both
communities of users become more familiar with the PPD's
features and gain experience in using it, the Commission
expects to develop additional features for the PPD in the
future.
Beginning at 12:00 noon EST on Monday, November 1, 2004,
the general public may query the PPD through a public access
feature found on the Commission's Web site: . Queries to the database will return information to
the requestor in the form of a Portable Document Format (pdf)
document. Members of the general public who register on the PPD
site may save their search results there for subsequent use.
Visitors who prefer not to register may also use the query
feature, but will not be able to save their search results on
the World Wide Web.
V. Development of Rule of Law and the Institutions of Democratic
Governance
V(a) Constitutional Reform
FINDINGS
In March 2004, the National People's Congress
adopted amendments to China's Constitution that in
theory confirm the state's protection of human rights
and enhance property rights. Having adopted such
language, the government will have to deliver some
limited practical improvements in the human rights
arena or risk damaging its legitimacy.
Chinese citizens lack a legal mechanism
through which to enforce their constitutional rights,
and the Chinese government is unlikely to create such a
mechanism in the near-term.
Chinese lawyers and scholars continue to
discuss constitutional reform and constitutional
enforcement in conferences, scholarly journals, and in
some online forums. Chinese citizens are making use of
language in the recent constitutional amendments to
promote further reform and protest violations of their
rights. The government has harassed some reform
advocates for discussions on constitutional reform that
it considers too far-reaching.
The 2004 Constitutional Amendments
In March 2004, the National People's Congress (NPC) passed
a slate of constitutional amendments that the Central Committee
of the Communist Party approved in October 2003.\585\ The 14
amendments include new provisions that, on paper, enhance
constitutional protections for private property and declare
explicitly that ``the State respects and safeguards human
rights.'' \586\ Other provisions incorporate Jiang Zemin's
``Three Represents'' theory into the Constitution as a guiding
ideology of the state,\587\ clarify the state's role in
directing the private economy, and call for the implementation
of ``political civilization,'' a term widely associated with
the rule of law and more accountable governance.\588\
Foreign observers and some Chinese experts reacted to the
constitutional amendments with caution, welcoming them as a
symbolic step forward but warning that their practical impact
would be minimal without a working constitutional enforcement
mechanism.\589\ In interviews with Commission staff, other
Chinese scholars attached greater significance to the
amendments, arguing that even without an enforcement mechanism
in place, the amendments will encourage the discussion of human
rights issues and lay a foundation for further reform.\590\ One
leading scholar told Commission staff that the human rights
amendments would provide a necessary theoretical basis for
ratification of the International Covenant on Civil and
Political Rights (ICCPR).\591\
The adoption of the 2004 amendments capped an active year
of discussion over the scope of constitutional reform. Some of
this discussion was too far-reaching for authorities. In mid-
2003 and again in January, the Chinese government issued
directives to curtail unauthorized publication on or discussion
of constitutional amendments, and it harassed reform advocates
such as Cao Siyuan after senior leaders became concerned that
academic and media discourse was raising expectations for
broad-ranging reform.\592\ In addition, the Party Central
Committee's General Office reportedly issued a document warning
that ``hostile forces'' had infiltrated the domestic debate on
constitutional reform and directing Chinese
organizations to exercise caution in rule of law exchanges with
foreign entities.\593\ Official papers and Web sites promoted
the ``bottom-up'' nature of the Party-approved constitutional
amendment proposals and expert commentary on the need for
constitutional ``stability.'' \594\
While continuing to exert controls over the media and
expression [see Section III(d)--Freedom of Expression],
however, the government tolerated some discourse on
constitutional issues that was critical of the limited nature
of official reform efforts. For example, the Legal Daily, a
Ministry of Justice newspaper, and Caijing, a liberal-minded
financial weekly, published relatively candid articles calling
for the establishment of a working constitutional enforcement
mechanism and noting that citizens should have the right to
compel constitutional review.\595\ At academic conferences, in
legal journals, and in some online forums, leading Chinese
scholars discussed the nature of constitutionalism and
mechanisms of constitutional enforcement.\596\ Reform advocates
maintained a progressive Web site called the ``Open
Constitution Initiative'' until the government shut it down in
2004 (most likely because it criticized the prosecution of the
editors of the Southern Metropolitan Daily), then re-
established it in Hong Kong on a site that is currently
accessible to mainland Internet users.\597\ Finally, average
citizens began to draw on new constitutional provisions as they
protested official abuses and made efforts to protect their
rights. Property rights protestors in Hangzhou, Beijing, Henan,
and Guangzhou, for example, explicitly invoked new
constitutional protections in pressing their claims against
developers and local governments.\598\ Some of these protests
received favorable coverage in the Chinese press.\599\ Free
expression advocates have also invoked constititutional
protections to challenge the application of anti-subversion
laws.\600\
Constitutional Enforcement
President Hu Jintao's emphasis on constitutional supremacy
in late 2002 raised hopes that the Chinese government would
take steps to establish a working constitutional mechanism in
2004. The NPC Standing Committee has the formal power to
supervise enforcement of the Constitution and invalidate laws
and regulations that conflict with it, but has failed to
fulfill this constitutional role in practice.\601\ This failure
has long been a key complaint of legal reformers in China and
came into sharper relief in 2004, as many asked what good new
constitutional rights would be without a mechanism through
which to enforce them.
Chinese scholars have discussed several models of
constitutional enforcement, including improved constitutional
enforcement by the NPC Standing Committee, a special
constitutional committee under the NPC Standing Committee, a
German-style constitutional court, and proposals to vest
China's courts with the power of constitutional review.\602\
Many scholars seem to agree that in the current political
climate, constitutional enforcement powers are unlikely to be
wrested from the NPC. These experts see an NPC constitutional
committee composed of legal experts as the mechanism most
likely to be adopted.\603\
The Chinese government has taken some limited steps toward
this initial goal. During the March 2004 NPC meeting, a Chinese
report suggested that ``relevant departments'' were considering
proposals to establish a human rights commission within the NPC
and the Chinese People's Political Consultative
Conference.\604\ There has been little public discussion of
this proposal in the Chinese news media, however, and it is
unclear what powers such a commission would have if it were
established.\605\ More recently, in June 2004, the NPC Standing
Committee announced the creation of a special legislative
review panel tasked with reviewing legislation and regulations
for consistency with the Constitution.\606\ The creation of
this panel may improve the handling of citizen petitions on
conflicts between the Constitution and laws or regulations and
could be a first step toward more robust constitutional
enforcement.
Over the past year, reform-minded scholars, lawyers, and
judges have also continued their efforts to establish case
precedents for constitutional review by the courts. At present,
Chinese courts lack the power to apply constitutional
provisions to individual cases or to strike down laws or
regulations that are inconsistent with the Constitution.\607\
Nevertheless, advocates at legal aid centers in Beijing and
Chengdu are actively searching for and bringing test cases with
constitutional claims as their basis.\608\ For example, lawyers
have filed lawsuits challenging local government policies that
prohibit the employment of individuals with hepatitis B or
require job applicants to be a certain height, claiming that
such policies violate the equal protection clause of China's
Constitution.\609\ Other cases have involved unlawful property
seizures. In several of these cases, plaintiffs have achieved
success in the form of settlements or court victories on non-
constitutional grounds, and some of the lawsuits have prompted
legislative remedies to address the problems at issue.\610\ To
date, however, courts have been unwilling to accept or apply
legal arguments based on the Constitution. Although some legal
scholars have criticized the courts for this reluctance, others
promoting constitutional litigation believe the courts are wise
to take a cautious approach in order to avoid unnecessary
political conflicts that could set back reform efforts.\611\
One notable legal case last year provided an example of
such potential political conflicts. In September 2003, an
intermediate court judge in Luoyang ruled that a Henan
regulation on seed prices was invalid because it conflicted
with the national ``Seed Law.'' \612\ The decision elicited an
angry response from the Henan Provincial People's Congress
Standing Committee, which charged that the judge had exceeded
her power and demanded that she be disciplined for her
``illegal'' review of the local regulation.\613\ Although the
case did not involve a constitutional question, the controversy
over judicial power had clear constitutional overtones, and it
sparked a national debate in legal circles on the problem of
constitutional review in China.\614\ In addition, four lawyers
filed a petition with the NPC Standing Committee challenging
the effectiveness of the local seed price regulations and
calling on the NPC Standing Committee to resolve the
legislative conflict.\615\ At the time of publication, neither
the case itself, which was appealed, nor the petition, had been
resolved.
Despite these developments and continued discussion of
constitutional issues, progress on constitutional enforcement
is likely to be slow. The creation of the NPC legislative
review panel is a positive step toward this goal, but the
principal function of the panel appears to be to review
existing laws and regulations for consistency with the
Constitution, rather than to review constitutional violations
in individual cases.\616\ The NPC is unlikely in the near term
to create a broader constitutional enforcement mechanism with
these powers and responsibilities. In May 2004, a member of the
NPC Legal Committee explicitly ruled out the possibility that a
constitutional court would be established.\617\ According to
Commission sources, the Party leadership has not yet put forth
any concrete proposals for a broadly empowered constitutional
review institution and is not expected to approve plans for
such an institution in the near future.\618\
Implications of Developments in Constitutional Law
Constitutional reform developments in 2003-4 should be
interpreted with caution. Despite official statements on rights
protection, the NPC's adoption of the new constitutional
amendments should be seen more as an attempt to shore up Party
legitimacy than a move to enhance individual rights in
practice. A Party communique lists strengthening Party
leadership, maintaining national unity and social stability,
and promoting economic reform as the principal purposes for
amending the Constitution, not enhancing and enforcing
individual rights.\619\ That senior Chinese leaders have not
taken any concrete steps toward establishing a constitutional
enforcement mechanism, and appear unlikely to do so in the near
future, counsels caution in assessing leadership motives for
the new amendments and official pronouncements on human rights.
The constitutional reforms should not be viewed as merely
empty rhetoric, however. Not long ago, the Party rejected
discussion of ``human rights'' altogether.\620\ By
incorporating human rights into the Constitution and
publicizing official human rights campaigns, the government has
legitimized discussion of human rights in China. This rhetoric
provides important political cover for reformers both inside
and outside the government and Party. Interviews by Commission
staff suggest that the amendments have already helped to lay
the groundwork for ratification of the ICCPR, to withstand
calls to reinstate a controversial form of administrative
detention that was abolished last year, and to promote other
reform initiatives.\621\ Moreover, several cases over the past
two years demonstrate that reformers outside the government are
adept at co-opting official rhetoric and casting their
initiatives as efforts to advance the leadership's goals.\622\ The constitutional revisions will provide additional cover for such
efforts.
More importantly, the adoption of the amendments and
publicity on constitutional reform have raised public
expectations for change. In the short term, China's leaders
will have to show some modest practical improvements in the
areas addressed by the constitutional amendments to sustain
Party legitimacy and diffuse social anger over issues such as
property seizures and law enforcement abuse. In the long term,
the amendments and accompanying discussion are likely to
contribute to grassroots pressure for the
government to deliver a working mechanism for constitutional
enforcement. As a writer in the official China Youth Daily
declared last October, ``rights without guarantees are
worthless. We need to strengthen our effort to perfect
mechanisms for [challenging] violations of rights. Only if we
do this will the rights of citizens be more than `rights on
paper.' '' \623\ As citizens mobilize to protect their property
interests and challenge abuses that seem inconsistent with new
constitutional guarantees, such calls are likely only to grow.
V(b) Nongovernmental Organizations and the Development of Civil Society
FINDINGS
New regulations on foundations demonstrate
some change and liberalization, but maintain the
principle of firm government control present in other
civil society regulations.
Chinese civil society organizations continue
to suffer from significant internal problems, such as
limited organizational capacity and poor self-
governance.
Since the onset of economic reform in the late 1970s,
Chinese government domination over the economic and social life
of its citizens has diminished. Non-profit associations and
organizations with varying links to the Communist Party and
government have begun to grow as the role of government in
society recedes. The growth of these organizations suggests the
gradual emergence of a more pluralistic Chinese society. But
numerous factors hamper the development of Chinese civil
society, including a restrictive regulatory environment, lack
of funding, and limited capacity for self-governance.\624\ Two
main developments affecting Chinese civil society occurred over
the past year: the passage of national Regulations on the
Management of Foundations (Foundation Regulations) \625\ and
the deepening reform of China's public institutions.
The Foundation Regulations attempt to channel the resources
of a growing economy into addressing social problems by
defining a framework for both private and public foundations.
The Foundation Regulations are the first major change to the
legal framework governing Chinese civil society since the
government issued rules regulating two other types of non-
governmental organizations in 1998.\626\
The Foundation Regulations maintain the Chinese
government's continued control over civil society
institutions.\627\ The Foundation Regulations retain the
requirement that a foundation must find a sponsor organization
in order to register.\628\ This requirement, also present in
the 1998 regulations, is one of the most substantial
restrictions on the development of an independent civil society
in China. The government limits qualified sponsor organizations
to government bureaus and Party mass organizations.\629\
Sponsors provide ``guidance'' for the civil society
organizations they supervise and participate in their annual
review.\630\ Control over sponsorship gives Chinese authorities
an effective weapon against organizational activities they deem
to be dangerous. Many Chinese civil
society organizations remain appendages of their sponsors,\631\
inhibiting the emergence of an independent civil society and
limiting the ability of Chinese civil society organizations to
check government power.\632\ Although some officials and
academics debate the wisdom of the tight controls over civil
society that the sponsor requirement imposes, its retention in
the Foundation Regulations indicates firm support by the
Chinese leadership.\633\
Despite the sponsor requirement, the Foundation Regulations
contain some change and liberalization. The Foundation
Regulations lack the restrictions of prior civil society
regulations which bar the registration of more than one
organization addressing the same issue in a particular
administrative region.\634\ The Foundation Regulations also
differ from the 1998 regulations on other civil society
organizations by permitting representative offices of foreign
foundations to register and be treated like Chinese
foundations.\635\ Equal treatment is a mixed blessing, however,
since the Foundation Regulations also explicitly extend the
sponsor requirement to the representative offices of foreign
foundations operating in China.\636\
Chinese officials assert that the Foundation Regulations
represent the first step in an overhaul of all Chinese civil
society regulations. Revisions to the 1998 regulations should
be completed by 2005.\637\ According to these officials, these
revisions should parallel the Foundation Regulations in
explicitly providing for the registration of other foreign NGOs
in China.\638\
Born in the 1950s, public institutions historically have
been state-controlled organizations that provide public
services in science, education, culture, health, and
sports.\639\ As of 2001, more than 1 million Chinese public
institutions existed, employing some 25 million people.\640\
Market reforms have created serious economic pressures on
Chinese public institutions, many of which are heavily
dependent on state funding. Over the past 15 years, and
particularly since the end of the 1990s, the Chinese government
has been gradually reducing the level of financial support for
public institutions.\641\ This policy has resulted in the
gradual privatization of a number of public institutions,
including arts troupes, Xinhua bookstores, and basic health
care providers.\642\ These organizations increasingly function
as private economic actors seeking independent revenue, rather
than as administrative units of the Chinese state.\643\ This
gradual independence may lead public institutions to evolve
into a component of a more diverse Chinese civil society.
At present, the government does not have a coherent reform
plan for public institutions in China.\644\ This vacuum,
combined with the scattered efforts of public institutions to
raise funds, has led to serious declines in certain essential
public services. One example is the collapse of rural health
care and health monitoring.\645\ Some government officials and
scholars recently have proposed structural reforms that would
gradually transform some public institutions into enterprises,
some into governmental entities, and others into civil society
organizations.\646\
Many Chinese civil society organizations continue to suffer
from internal weaknesses as well. Chinese civil society
organizations may become dominated by a few individuals whose
actions are seldom constrained by formal rules.\647\
Corruption, poor organizational capacity, lack of planning, and
weak institutional continuity sometimes have also been
problems.\648\ Over the past decade, the beginnings of a more
diverse Chinese civil society have emerged, but its future
development depends on removing regulatory obstacles and
building organizational and management capacity.
V(c) Access to Justice
FINDINGS
Access to justice remains a serious problem,
particularly in rural China. Scarce legal resources,
combined with the intermingled nature of government and
private legal services in rural areas, limit equitable
access to the legal system.
In most of China, a secretive, opaque, and
inefficient network of thousands of ``letters and
visits'' (xinfang) offices serves as a dysfunctional
proxy for the legal system.
The xinfang system is at the center of severe
miscarriages of justice and human rights abuses in
China.
China's gradual establishment of a nationwide
legal aid system is a positive step toward developing
the rule of law.
Legal aid in China remains severely limited,
owing to government failure to fund local institutions
adequately, particularly in rural China.
The Xinfang System: Petitioning for Justice
The formal legal system is almost entirely absent from the
lives of most of China's citizens. According to one survey of
rural Chinese grievances, less than two percent involve a
lawyer, a court, or any office of the formal legal system,
significantly lower than corresponding figures for either the
United States or Chinese cities.\649\ Even in Chinese urban
areas, lack of legal representation is extremely common.\650\
The vast majority of Chinese disputes end up in quasi-formal
channels. One primary channel is the system of ``letters and
visits'' (xinfang) offices, accessed by the traditional
practice of petitioning progressively higher levels of
government for assistance.\651\
The roots of the xinfang system can be traced back to
centuries of imperial Chinese rule. China has traditionally
lacked any clear division between administrative and judicial
authority.\652\ The lowest imperial official, the district
magistrate, simultaneously performed functions as varied as
ensuring the collection of taxes, managing the local militia,
and meting out justice in local legal cases.\653\ Appeals of
magistrate legal decisions consisted of consecutive petitions
up the government hierarchy in a repeated effort to enlist the
assistance of higher-level officials in reversing lower-level
decisions. Central authorities employed such petitions as a
means of ensuring justice in individual cases, but also as an
information channel on grassroots conditions and a performance
review of local magistrates.\654\ Frequent struggles broke out
between aggrieved petitioners attempting to reach higher
authorities and local government officials attempting to defend
or cover up their decisions.\655\ As a last resort, petitioners
would travel to Beijing, prostrating themselves before the
centers of imperial power in an effort to gain the attention of
key officials or the emperor himself.\656\ Obtaining justice in
these situations was not merely a legal question, but also
required connections, sheer persistence, and the political
ability to mobilize popular support to put pressure on central
authorities to reverse local decisions.\657\
This traditional Chinese petition system has survived the
founding of the PRC in the form of the xinfang system.
Established in the early 1950s, xinfang offices initially
provided a means for central officials both to address abuses
by local government officials and to obtain information on
grassroots conditions. Aggrieved citizens would approach Party
cadres in designated provincial xinfang bureaus and lodge
complaints about the behavior or decisions of lower-level
officials. Successful complaints might result in the dispatch
of investigation teams or the discipline of offending
cadres.\658\ Since the beginning of China's decentralization of
power in the late 1970s, xinfang bureaus have proliferated in a
wide range of organizations. These include offices of the local
police, government, Party, procuracy, people's courts, people's
congresses, and the news media. Petitioners often contact any
official or bureau they perceive as having the ability to
intervene and assist with their problems, regardless of whether
the official or bureau has formal responsibility or authority
over the subject matter.
Despite the gradual development of a formal Chinese legal
system, Chinese citizens continue to rely heavily on
petitioning to resolve their grievances. According to estimates
from officials in the national xinfang bureau, total petitions
(both letters and visits) to Party and government xinfang
bureaus at the county level and higher are about 11.5 million
per year, compared to the six million legal cases handled
annually by the judiciary.\659\ The 2003 Supreme People's Court
Work Report states that the entire Chinese judiciary handled 42
million petitions during the preceding five years, as compared
to approximately 30 million formal legal cases.\660\ The
Supreme People's Court (SPC) alone handled 120,000 petitions in
the past year, compared with 3,567 formal appeals.\661\ The
xinfang bureau of the National People's Congress (NPC) reported
receiving 76,868 petitions during 2003, and all levels of the
Chinese procuracy handled 527,332.\662\
Petitioning is partly a political protest, partly an appeal
for justice in an individual case, partly a request for aid,
and partly an attempt to grab the attention of higher-level
officials.\663\ Individual petitioning may be as simple as the
repeated visits of one dissatisfied individual to multiple
government offices.\664\ Collective petitioning is more
organized and has political overtones. As one scholar has
noted, it often involves ``formal, written complaints
physically carried by a group of villagers to higher levels
(usually the township or county town),'' that are accompanied
by documentary evidence and statements of witnesses.\665\ It
may also employ demonstrations, speeches, and processions. The
primary use of petitions is not to express displeasure with
national government policies, but rather to oppose the actions
and policies of local government officials.\666\
Although much petitioning is extra-legal in nature, it
often overlaps with the formal legal system. Lawsuits under the
Administrative Litigation Law are often ``preceded,
accompanied, or followed'' by collective petitions.\667\
Chinese courts frequently hold reception days to hear citizen
petitions.\668\ Citizens often petition higher courts outside
the appeals process, seeking independent review of lower court
cases.\669\ Losing parties in legal cases also often bypass the
formal appeal process in favor of direct petitions to local
people's congress delegates.\670\ Petitioning is not limited to
low-level government organs or by subject matter. At least one
patent case at the high people's court level is the subject of
individual petitions.\671\
Precisely because groups of petitioners represent an
implicit threat to the social order, petitioning can prove
effective. The arrival of several thousand rural petitioners or
extreme actions by individuals, such as suicide threats or violence,
can sometimes compel high government officials to intervene
(via legal means or otherwise) to reverse local policies or
decisions. The overwhelming majority of individual petitioners,
however, find themselves lost in a Kafkaesque shuffle from
bureau to bureau and city to city, facing years of red tape
without any real resolution to their problems.\672\
Resolving individual grievances is not the main focus of
most xinfang bureaus, despite the heavy reliance by Chinese
citizens on petitioning. Instead, xinfang bureaus operate as a
``tripwire'' to inform officials on general or emergency issues
of popular concern, attempt to calm angry petitioners, and
report on severe local government abuses. In a limited number
of cases, they may conduct some joint negotiations with various
government bureaus to resolve particular disputes.\673\ The
practice of petitioning also allows Chinese leaders to give the
appearance of responsiveness to individual citizen complaints.
In one such example in 2004, Premier Wen Jiabao intervened in a
back wage dispute presented by a Sichuan farmer.\674\
Publicizing such actions in the news media presents an image of
responsiveness at the top that increases citizen expectations
and encourages further petitioning.\675\
Xinfang bureaus have numerous faults from the standpoint of
a rules-based system of providing justice. They lack formal
power, have no systematic set of rules to decide particular
cases, and can often only resolve disputes by prompting the
extra-legal intervention of higher-level officials.\676\
National and provincial xinfang bureaus are secretive, closed
institutions closely tied with the Party.\677\ Xinfang
officials often see their goal as ``maintaining order'' in
conjunction with public security authorities, rather than
fairly resolving problems.\678\ Xinfang bureaus effectively
reward organized political activity by ensuring that large
groups of petitioners have their demands met, while
simultaneously viewing such protests as threats to the social
order.\679\ The xinfang system also allows Chinese leaders to
identify and address particular social problems, either through
repressive measures or limited concessions. This ``early
warning'' aspect may allow the government to temporarily
deflect popular pressures for more democratic rule and access
to a transparent legal system.\680\
Despite national and local regulations theoretically
protecting the rights of petitioners to approach xinfang
bureaus, file grievances, and receive responses, abuses are
common.\681\ Local officials often repress petitioners to
conceal the severity of social problems from higher
authorities. Examples include:
Arbitrary government detention and expulsion
of thousands of petitioners from Beijing in March and
September, prior to meetings of the NPC and Party
Central Committee.\682\
Shaanxi court sentence of a petitioner
representative for distributing publicly available
national government circulars on lowering the rural tax
burden to groups of farmers.\683\
Detention of four petitioners in a Henan
village hard-hit by AIDS by local officials attempting
to prevent them from contacting the central
government.\684\
Henan court sentence of petitioner
representatives protesting misconduct in village
elections and seeking to deliver provincial rulings on
the issue to county officials.\685\
The gradual development of the formal legal system may be
displacing xinfang channels.\686\ National regulations direct
government xinfang bureaus to leave justiciable issues to the
courts,\687\ and some courts are directing petitions into legal
channels.\688\ Government legal aid programs and the spread of
legal services are also a partial effort to address some of the
problems discussed above. However, the continued presence of
xinfang channels and petitioning activity reflects the reality
that most Chinese disputes are still resolved by the personal
power of high officials, rather than by law.
Legal Services and Legal Aid
Since the 1990s, the Chinese government has made progress
in developing a national legal aid system. Legal aid has helped
promote the development of rule of law in China by increasing
the ability of average citizens to use the legal system.
However, U.S. scholars note that some Chinese government
officials appear to focus more on building a bar of registered
lawyers in urban areas than on coherently addressing rural
legal needs.\689\ Lack of central government funding has also
led to uneven development of legal aid programs. Wealthy urban
areas are developing formal legal aid institutions, but in
rural areas local governments lack the resources to support
them.
Wiped out in the Cultural Revolution, the Chinese legal
profession has grown steadily since the beginning of reforms in
the 1970s. Originally defined as socialist state workers,
lawyers emerged under the 1996 Lawyers Law as private economic
actors providing legal services, albeit managed by the Ministry
of Justice (MOJ) and subject to a mandatory pro bono
requirement.\690\ The Chinese bar has grown, from 43,533
registered lawyers in 1989 to 122,585 in 2001.\691\ Relative to
the population as a whole, their numbers remain low by Western
standards. At present, there is roughly one lawyer for every
10,000 individuals in China, compared to a ratio of about 1 to
550 in the United States.\692\
Despite the growth of the Chinese bar, lawyers are almost
completely absent in rural China. One survey found only one
practicing lawyer at the township level, while one out of ten
rural Chinese counties lack any lawyers at all.\693\ A range of
paraprofessionals consequently dominates the legal services
market in Chinese rural areas. These include basic-level
workers in legal services offices and local judicial bureaus,
in addition to a significant number of unlicensed, self-trained
individuals who serve as legal advisors for rural
residents.\694\
Basic legal service workers often lack formal legal
education or training, but local judicial bureaus or courts
license them to practice.\695\ Although China's approximately
100,000 basic legal service workers number only somewhat fewer
than the total number of lawyers, they handle many more
cases.\696\ Workers provide consultations, engage in mediation,
represent parties in civil cases, may collect fees, and may
organize to form legal services offices. They may not represent
defendants in criminal cases.\697\ Since the early 1990s,
government authorities have privatized legal services offices.
They now function more or less as law firms, dominating the
market in rural legal services and competing against law firms
in the urban market.\698\
Local judicial bureaus are the county and township level
branches of the MOJ.\699\ They supervise and often provide
training for basic legal service workers, as well as oversee
local mediation and legal aid efforts.\700\ Pursuant to central
government efforts to reduce local expenditures, many judicial
bureaus have opened legal services offices as a source of
additional revenue. As one Chinese scholar characterized it,
``In all the counties I surveyed, the local judicial bureau and
the local legal services office were a case of `one person, two
signs,' with the head of the local legal services office being
a member of the local judicial bureau . . . and the identity of
these individuals unclear, part official, part private.'' \701\
Such blurring of boundaries intermingles ``government'' and
``private'' functions at the local level. Heads of local
judicial bureaus (in their capacity as government officials)
may designate a basic-level legal worker to mediate an end to a
contentious dispute between villagers. If mediation fails, the
same worker may shift into a fee-for-service role providing
legal assistance to one (or both) parties via consultation,
drafting legal documents, or court representation.\702\ The
lack of formal legal training in China's countryside also blurs
the lines between courts and other judicial organs. Just as
local judicial bureaus train basic-level legal workers, so do
local courts train local judicial bureau personnel. Judges
organize conferences and training sessions on new laws for
local judicial bureau personnel, and invite them to observe and
participate in court mediation.\703\ Such interlocking roles,
combined with the inevitable personal and financial
relationships, effectively prevent rural residents from
accessing independent legal services.
Beginning in the early 1990s, concern with access to
justice generated significant Chinese government interest in legal
aid.\704\ Privatization of legal services led to government
efforts to enlist China's growing number of lawyers in an
effort to tackle social problems. Central government
encouragement of legal aid efforts led to a rapid increase in
the number of government-run legal aid centers (from several
hundred in the late 1990s to 2,774 by the end of 2003).\705\ In
Shaanxi province, for example, the provincial government, all
major metropolitan areas, and some 72 out of 108 county-level
governments have opened legal aid centers.\706\ Various quasi-
independent legal aid organizations associated with
universities or Party organizations have also developed.\707\
In 2003, the State Council issued a set of national Legal
Aid Regulations, providing a formal framework for the further
development of provincial and local legal aid efforts.\708\ The
Legal Aid Regulations formally make providing legal aid a
government responsibility under the MOJ.\709\ But the central
government has allocated almost no money to support local
governments in establishing legal aid centers.\710\ MOJ
officials rely on a mix of orders and cajoling to persuade
local authorities to establish centers.\711\
The Legal Aid Regulations also establish a set of
eligibility guidelines for legal aid applicants that represent
a relatively limited set of cases, and in criminal cases allow
an individual to apply for legal aid only after initial police
investigation is complete.\712\ The Legal Aid Regulations allow
local authorities a degree of discretion in refusing cases.
They also grant local legal aid centers flexibility in
structuring their programs.\713\ The Legal Aid Regulations only
require legal aid centers to provide pro bono assistance in
criminal cases in which a defendant faces a possible death
sentence, is a minor, or is blind, deaf, or mute.\714\ Except
for these cases, applicants for legal aid must also meet a
locally set standard of economic hardship.\715\
Chinese legal aid centers rely heavily on mandatory pro
bono representation, although MOJ personnel also represent
clients directly.\716\ MOJ personnel generally run the intake
process, distribute qualified cases to private lawyers, and
supervise the cases. Private lawyers generally handle one or
two legal aid cases per year.\717\ The Legal Aid Regulations
authorize legal aid centers to subsidize lawyers handling these
cases, but forbid lawyers from receiving fees from their
clients.\718\ Chinese legal aid officials cite the lack of
money to pay these subsidies to private lawyers as a serious
obstacle to the development of legal aid.\719\
The failure of the central government to provide funding
for legal aid has led to severely uneven development of
programs.\720\ In relatively well-off urban areas, some
municipal governments have appropriated funding to support
legal aid centers run by full-time staff.\721\ Such urban
centers are often relatively
institutionalized and professional.\722\ In contrast, legal aid
services in rural areas are generally an additional duty
shouldered by the local judicial bureau.\723\ Often, the same
MOJ employee in a given rural county simultaneously runs the
local judicial bureau, his own private legal services office,
and provides legal aid services out of the same location.\724\
The legal aid services provided in such circumstances are
limited and their pro bono nature subject to question.
Demand for legal aid in China remains far higher than
supply. According to legal aid officials in Chengdu, Sichuan
province, only about one-third of applicants receive legal aid
each year.\725\ MOJ statistics show legal aid centers handling
166,433 cases during 2003, or fewer than 3 percent of the total
number of cases decided by the Chinese court system in
2003.\726\ Lawyers do not necessarily represent legal aid
applicants. According to government statistics, less than half
of China's full-time legal aid workers have a lawyer's
license.\727\ Yet legal aid representatives appear to win civil
cases for their clients relatively often.\728\ Official Chinese
statistics for outcomes in criminal cases against legal aid
recipients are unclear.\729\
Legal aid in China is focused on the type of problems faced
by low-income urban workers rather than the rural poor. One
example is that labor and support payment cases dominate the
civil side, rather than disputes over land and taxation. On the
criminal side, cases involving the death penalty and those with
underage defendants predominate.\730\ Civil cases constitute 57
percent of all legal aid cases, criminal cases 41 percent, and
administrative cases 2 percent.\731\
Despite many successes in individual legal cases, legal aid
programs do not broadly challenge established policies.\732\
They reflect government interests because the government funds
and operates them. Some urban legal aid centers rely on media
reports to identify ongoing legal cases receiving critical
coverage, then actively approach clients to see if they need representation.\733\ Chinese government-funded legal aid centers
are not an external constraint on government action, but another
element in the dispute resolution process. For example, Xi'an legal
aid personnel participated along with the courts, labor bureau, and
other ministries in a recent conference designed to reach
consensus on how to practically address a series of labor law
disputes.\734\ Because they often represent underserved groups in
society, legal aid centers may bring some latent problems to the
surface and help check local abuses. Quasi-independent public interest
law organizations affiliated with universities often advocate broader
change more vigorously.\735\
Workers at Chinese legal aid organizations have few
opportunities for training. Some provincial centers hold
occasional sessions for lower-level MOJ personnel, but the only
trainings that the Ministry itself has organized have been in
cooperation with foreign NGOs.\736\ Foreign NGOs seeking to
enhance Chinese legal aid efforts should consider programs that
strengthen the capacity of the MOJ Legal Aid Center to conduct
its own training.\737\ To strengthen Chinese civil society,
such efforts should also concentrate on non-governmental
organizations providing legal aid services.\738\ Programs
directed at rural needs should also focus on training and
organizing basic legal services workers.\739\
V(d) China's Judicial System
FINDINGS
The Chinese judiciary continues to be plagued
by internal administrative practices which constrain
the independence of individual judges and undermine
court effectiveness.
The Chinese government is making significant
strides in
increasing legal training and the professional quality
of the Chinese judiciary through new programs and
employment practices. However, many of these efforts
ignore the practical needs of rural Chinese courts.
Internal Judicial Administration
Internal administrative practices commonly used in Chinese
courts reduce the independence of individual judges and create
a passive cadre of judges. Three examples are the
``responsibility system for wrongly decided cases,'' \740\ the
use of case closure rates to evaluate judicial
performance,\741\ and the extensive reliance on qingshi
(internal advisory opinion) procedures.
Court responsibility systems, which sanction judges for
errors in deciding cases, began in the late 1980s as a means to
curb corruption.\742\ In practice, responsibility systems
differ by province and by court. Some define ``wrongly decided
cases'' as those in which mistakes in procedure, determination
of the facts, or application of law have resulted in
``incorrect'' outcomes.\743\ One Sichuan court censures judges
for any error whatsoever, not only for procedural or legal
violations, but also grammatical or spelling errors in their
opinions.\744\ Disciplinary measures also vary. Depending on
the number and seriousness of the mistakes in ``wrongly decided
cases,'' a judge may face internal criticism, fines, slower
promotions, critical notations in his or her personnel file,
or, in extreme cases, criminal sanctions.\745\ In some courts,
sanctions are automatic and linked to reversal on appeal.\746\
Other courts have internal mechanisms in which a judge's peers
review reversed cases to determine the severity of the error
and the need for punishment.\747\ Some courts employ these
measures frequently, others not at all.\748\
Court responsibility systems limit judicial independence
and efficiency, particularly in linking disciplinary punishment
to ordinary appellate reversals.\749\ They force Chinese judges
to consider their self-interest in conducting essential
judicial duties, such as hearing difficult cases, applying the
law in unclear situations, or clearly expressing their judicial
opinions in writing.\750\ These systems prompt Chinese judges
to pressure parties into agreeing to mediation, because, as one
judge said, ``mediation can't be appealed, and there is no
`incorrect case' rate.'' \751\
Some Chinese government officials are aware of these
problems. The Supreme People's Court (SPC) set out national
guidelines in 1998 that explicitly exempt judges from
responsibility for incorrect judgments arising from errors in
legal understanding or mistaken factual findings, or for
reversals on appeal that result from amendments to the law or
new evidence.\752\ These guidelines have had some impact, as
some courts have revised their systems to include these
exemptions.\753\ But some courts do not follow the SPC
guidelines.\754\ Other responsibility systems retain a degree
of ambiguity, making the extent of judges' freedom to decide
cases difficult to determine. For example, 1999 court rules for
one Beijing Intermediate People's Court include the 1998 SPC
exemptions for judicial sanctions related to ``errors,'' but expressly
sanction judges for ``distortions'' of fact or law.\755\
Uncertainty over such distinctions, combined with the penalties
of the responsibility system, creates an environment hostile to
judicial independence and creativity, resulting in a generally
passive cohort of Chinese judges.
The common administrative practice of using the ``case
closure rate'' to evaluate court performance creates similar
pressures. The annual review process Chinese courts and judges
undergo often considers the percentage of closed versus filed
cases for a given year as a means to evaluate overall judicial
efficiency.\756\ Individuals and courts with low ratings may
suffer in terms of slower promotions and budget
allocations.\757\ Given this incentive structure, Chinese
courts self-report staggeringly high case closure rates, often
greater than 99 percent,\758\ and often generate these rates
through unscrupulous means. For example, Chinese courts
commonly refuse to accept cases submitted in December, knowing
that these cases would remain undecided at the end of the year
and consequently reduce their case closure rate.\759\ Judges often
also pressure parties to mediate rather than litigate if the
case might continue past the end of the year.\760\ As Chinese
critics have noted, these practices injure the rights of
parties, harm the image of the Chinese judiciary, and undermine
the procedural time limits for litigation set in the
administrative, civil, and criminal laws.\761\ They also
reflect an effort to manage the Chinese judiciary as an
administrative agency rather than allow judges to independently
exercise judicial authority.
Fear of censure under court responsibility systems creates
incentives for Chinese court judges to seek advance guidance
before issuing their decisions, contrary to principles of
judicial independence. Judges seek such guidance through a
well-developed system of requesting internal advisory opinions
(qingshi).\762\ The request may be as informal as asking the
tribunal head for his views on a particular case, or as formal
as sending a written request to a higher court. Chinese judges
maintain that they never use the practice to ask courts to make
factual findings, but rather ask for advisory opinions only in
cases in which the law is unclear or they are uncertain how to
apply it to a particular set of facts.\763\ But when lower
courts frequently send detailed case information to higher
courts, questions arise about whether the lower courts are
properly exercising their trial authority. Databases of Chinese
laws and regulations contain many examples of replies to
qingshi requests from all levels of the Chinese judiciary.\764\
These differ little in form and content from similar requests
from lower-level administrative agencies to higher-level
departments. Qingshi requirements are often very lax, allowing
judges themselves to decide when it is appropriate.\765\
Chinese trial practice liberally accommodates qingshi
procedures, including tolling the legally required time limits
for deciding a case.\766\ Higher courts often have a research
bureau formally responsible for responding to qingshi requests
from below.\767\ Individual judges also may perform this
role.\768\ Qingshi requests factor into the drafting of formal
judicial interpretations. The SPC relies on qingshi requests
from lower-level courts to determine which areas of law are
unclear and need formal judicial interpretation.\769\ Excessive
reliance on the qingshi process is emblematic of the top-down,
overly administrative management structure of the entire
Chinese judiciary.
Many in China criticize the qingshi system. As one
procuratorate official bluntly put it, the system ``is the
embodiment of violations of law, regulation, and correct
procedure in court management.'' \770\ No legal basis exists
for the qingshi system, which appears to violate provisions of
the Chinese Constitution and Judge's Law guaranteeing courts
the independent exercise of judicial authority.\771\ The
closed, internal nature of the process also violates principles
of openness and transparency in judicial decision-making and
conflates the appellate and trial procedures, often rendering
the appeal a formality. Moreover, the continued use of the
qingshi system breeds passivity, dependency, and a lack of
independent thought by Chinese lower court judges. They simply
pass difficult or unclear cases up the judicial hierarchy.\772\
Chinese courts have made some limited moves to curb the use
of qingshi. The SPC notice issued in response to public outcry
surrounding cases of extended detention directs lower courts to
``progressively eliminate'' the use of qingshi, except in
``difficult cases involving the application of law.'' \773\
Certain local courts have issued similar instructions.\774\
However, the use of qingshi is difficult to eliminate in
practice.\775\ Under the pressure of administrative measures
such as responsibility systems, Chinese judges adopt a passive
approach to dispute resolution. They prefer to use the qingshi
process to refer any difficult case up to higher authorities
rather than decide it themselves and risk censure. Fundamental
administrative reforms are necessary to curb the dependence of
the Chinese judiciary on advisory opinions.
External Pressures on the Chinese Judiciary
Numerous external actors, such as the Party, local
governments, and local people's congresses (LPCs), impose
limits that stifle the development of an independent Chinese
judiciary.\776\ Courts encounter interference from LPCs in the
form of individual case supervision.\777\ According to Chinese
sources, as many as 70 percent of individual petitions to some
local LPC xinfang bureaus represent appeals of final court
decisions.\778\ Formal structures exist to facilitate
``supervision'' of particular cases in which LPC delegates take
an interest.\779\ Some Chinese courts have LPC liaison offices
present in their buildings to aid in such interventions.\780\
According to Chinese scholars, SPC regulations require that any
case that individual National People's Congress delegates raise
with the Court must be reviewed and the results must be
reported back to the delegates.\781\ Although LPCs formally
intervene in only a limited number of cases, ``status
requests'' on ongoing court cases are relatively common.\782\
This contributes to an overall atmosphere that is not conducive
to judicial independence.
Chinese courts face similar pressure from the media.
Because Chinese judges lack professional standards and often
are influenced by factors other than the law, courts may decide
cases in line with their view of prevailing public opinion,
particularly when press coverage is vigorous.\783\ Chinese
courts may ignore normal legal protections or questionable
facts in issuing quick death sentences, such as in the Liu Yong
case [see Section III(a)--Rights of Criminal Suspects and
Defendants]. In addition, the internal government reports
prepared by the Chinese media may also generate high-level
interventions in particular cases.\784\
Judicial Professionalism
Although the Chinese government is making significant
strides in increasing the professional quality of the Chinese
judiciary through training programs and new employment
practices, many of these efforts ignore the practical needs of
rural Chinese courts. Educational requirements for judges have
been tightened, and the SPC has announced ambitious plans to
use higher court judges to carry out educational lectures on
new laws and regulations for China's roughly 150,000 basic
court judges.\785\ Such projects ignore the realities of rural
Chinese courts, which often lack the financial resources to
attract university graduates and must struggle to merely retain
the judges they do have.\786\ The highly academic educational
and training programs organized by national and provincial
judicial training programs appear similarly misdirected, given
the heavy emphasis of basic-level Chinese courts on
mediation.\787\ Many local Chinese judges express a desire for
more practically oriented, skills-focused training
sessions.\788\
Observers also detect signs of a shift toward a more
professional administrative structure and recruiting process.
Traditionally, Chinese judges have risen to the bench through
an internal promotion process, starting first as a judicial
secretary and gradually progressing to a full judgeship.\789\
This system results in significant mixing of clerical and
judicial duties,\790\ and creates internal pressures to promote
unqualified senior clerical staff to judgeships.\791\ The
result is a highly imbalanced judiciary: approximately two-
thirds of the roughly 300,000 Chinese court personnel are
judges, with only 40,000 judicial secretaries.\792\ In the fall
of 2003, the SPC took positive steps to stop this practice,
with newly issued regulations that redefine the position of
judicial secretary as a purely support function, rather than a
step on the career track to becoming a judge.\793\ If fully
implemented, this should gradually increase judicial
professionalism.\794\ Many Chinese courts, with the
encouragement of the SPC, are also beginning to experiment with
selecting judges from among lawyers and other experienced legal
professionals.\795\
Quality and Availability of Judicial Decisions
The quality and availability of Chinese judicial decisions
remains a concern. Decisions often lack any legal reasoning and
are frequently unavailable to the public. This is partly a
result of the generally low educational levels of Chinese
judges and the heavy emphasis in basic-level courts on mediation
rather than formal trials.\796\ The excessively administrative nature
of the Chinese judiciary also plays a role. Judges indicate that they
frequently avoid listing reasons for their decisions in clear
judicial opinions out of fear of censure under the
responsibility systems.\797\
The Chinese judiciary is taking steps to improve the
quality of judicial opinions. SPC directives requiring the
publication of judicial decisions are an effort to increase
transparency and compel judges to write better decisions in the
face of public scrutiny.\798\ Several court Web sites,
including those in Beijing, Shanghai, and Hainan province,
allow users to download judicial decisions.\799\ The
intellectual property tribunal of the Beijing High People's
Court has begun publishing all of its opinions online.\800\
Review by Commission staff reveals that while many of these
online opinions continue to lack legal reasoning, a few contain
short analyses of
relevant legal principles and facts. Some Chinese judges have
indicated that pressure to publish opinions is encountering
internal opposition within Chinese courts, as less-skilled
judges resist the pressure to publish decisions out of concern
for their public image or fear of punishment under court
responsibility systems.\801\
V(e) Commercial Rule of Law and the Impact of the WTO
FINDINGS
The WTO transparency obligations have had a
positive effect on local governance by providing cover
to reformers and raising public and official awareness
of administrative, judicial, and legislative reform
efforts.
The Chinese government has adopted a series of
industry
development policies that reorganize domestic
industries and frequently discriminate in favor of
domestic products, sometimes in contravention of
China's WTO commitments.
Only rhetorical progress has been made toward
reducing the extremely high level of intellectual
property rights infringement in China in the past year
and the situation continues to severely injure U.S.
intellectual property industries.
The implementation of China's World Trade Organization
(WTO) accession obligations remains a key measure for China's
development of commercial rule of law. Although there has been
progress in many areas, the Chinese government frequently finds
that it lacks the capacity to implement many of the commitments
requiring changes to its legal system both effectively and
immediately. Moreover, market interventionist policies, often
under the guise of industry development policies, frequently
discriminate against goods and services of foreign origin,
which generally runs afoul of WTO rules. The U.S. government
will need to closely monitor China's progress in meeting all of
its WTO commitments at the national and local levels to ensure
that lower-profile measures that may deny foreign firms market
access do not become standard bureaucratic practice.
Continued engagement on trade issues, particularly WTO
implementation and compliance, is an important means to foster
the rule of law in China. Because of internationally binding
trade commitments and the economic realities of foreign direct
investment, Chinese authorities cannot avoid meaningful discussion
when confronted with economic and investment-related issues. This
situation makes engagement on trade among the most constructive
vehicles for the U.S. government to address the rule of law and
legal reform in China. Continued engagement on trade issues has
been the basis of a strong and surprisingly stable bilateral
relationship.
Commercial Rule of Law Beyond the WTO
The systemic changes required to implement China's WTO
commitments also affect other areas of rule of law development
in China, especially the capacity building of the Chinese
judiciary and bureaucracy that many of China's WTO accession
commitments have mandated. In the judiciary, the Supreme
People's Court (SPC) has begun seeking comments on its draft
interpretations through its online services. In addition, some
intermediate courts are now experimenting with publication of
all their decisions.\802\ The significance and reasons for this
change extend beyond the requirements of WTO accession, but the
need to provide reasoned decisions for trade-related actions
plays a role in this reform.\803\
Provincial and local government bodies and provincial
people's congresses continue to make notable progress in
transparency. Some have been publishing draft legislation, for
both trade-related laws and other types of legislation. For
example, the Sichuan Provincial People's Congress has published
draft laws since the early 1990s.\804\ The Guangdong Provincial
People's Congress has interpreted the 2000 Law on Legislation
to require that the Congress seek opinions on legislation from
relevant stakeholders.\805\ The Guangdong People's Congress and
the Sichuan People's Congress publish all legislation on their
Web sites before formal approval.\806\
An increasing number of local legislatures have made open
calls to the general public for input on legislation. Some have
developed official procedures for considering suggestions.
These regulations have been developed to implement certain
provisions of the 2000 Law on Legislation.\807\ Shenzhen began
soliciting legislative proposals through its Web sites in
2004.\808\ The Guangdong Provincial People's Congress solicits
comments on legislation through newspapers, its Web site,
direct invitations to particular constituencies, and open
hearings.\809\ Some local people's congresses have attempted to
use hearings to obtain public views on legislation. But
people's congresses also seem to be having problems putting
into practice previously adopted rules outlining how they will
conduct a hearing. The few legislative hearings held so far
demonstrate that Chinese legislators still need to address
issues such as witness selection and public and official
attendance.\810\
Provinces and municipalities are developing innovative
measures to distinguish themselves as forward-leaning in
governmental transparency and business efficiency. In
Chongqing, officials established the Chongqing Industrial
Business Administration Office to be a ``one-stop'' office for
licensing.\811\ The Internet also provides a regular means of
interaction between the government and its citizens on a wide
variety of issues. In Wuhan, the government has created a
bulletin board for airing grievances, and Beijing's government
solicits input on public works online.\812\ Shanghai's
legislature has sought to expand its experience with hearings
beyond the legislature itself with a proposal to enact a local
regulation that would set up a hearing mechanism for the local
government.\813\
Although not directly required by China's WTO commitments,
local governments have cited WTO transparency commitments as a
factor affecting changes in the civil service system. According
to interviews with Commission staff, the Guangdong Provincial
Personnel Department responded to WTO accession by recruiting
for civil servants from a wider pool of applicants, without
regard to their social status. The entire process of hiring,
promotion, and firing has become more transparent, using a
standard examination for hiring decisions and protecting the
right of the public to file complaints against prospective
high-level appointees.\814\
Recent changes like these that bring greater transparency
in government administration owe much to the general
requirements and increases in capacity that WTO accession has
required. While many problems have arisen in China's
implementation of its specific commitments, that implementation
has benefited many U.S. companies doing business in China and
provided U.S. trade officials with much more comprehensive
tools for addressing problems that arise in the bilateral
relationship.
Transparency
China has not made progress over the last year on WTO
commitments related to transparency. According to USTR,
transparency is the most important of all of the WTO
obligations.\815\ Because transparency affects a wide range of
industries, the Chinese government's failure to implement the
commitments causes harm in a number of sectors and trade areas.
As soft commitments, the transparency obligations are some of
the most difficult to comply with, because they involve the
cooperation of government departments and agencies at all
levels. A government organization seeking to comply with the
transparency commitments must also reckon with the interests of
the Communist Party, which may not always correspond. Despite
these difficulties, some observers are optimistic that the
Chinese government will eventually meet its commitments on
transparency, and the general level of U.S. industry concern
has decreased.\816\
In its accession agreement, China also agreed to
participate in an annual review for the first eight years of
its WTO membership with a final review in the tenth year.\817\
This Transitional Review Mechanism (TRM) has now completed two
cycles through the Committees and Councils of the WTO, ending
with a consolidating session in the WTO General Council. In the
first year, the results of the TRM disappointed many observers,
who expected it to have great potential to assist WTO
implementation in China.\818\ The Chinese government refused to
provide written answers to questions and requests that the
United States and other WTO members had made in advance.
Because decision-making in WTO Committees and Councils operates
by consensus, the Chinese delegation also blocked the adoption
of any official report on the TRM. Monitoring progress with
China's implementation in its second year of membership, the
U.S. government declared that the 2003 TRM process was less
contentious and more productive.\819\ The 2003 TRM, however,
had all the same negative features of the earlier TRM process,
with no written responses from the Chinese delegation or final
report of any kind. The Chinese delegation appears to have
succeeded in lowering expectations for the outcome of the TRM.
As a result, the TRM process does not work to the benefit of
China, the United States, or other WTO members, and suggests
that Chinese central government authorities responsible for
trade matters are not dedicated to implementing WTO
transparency commitments.
Industry Development Policies
China's government has pursued a variety of policies since
WTO accession to improve the capacity for innovation in Chinese
industry. These policies and the measures used to implement
them often exploit broad WTO rules and soft commitments
requiring systemic changes to China's bureaucracy to favor
Chinese industry.\820\ Following its long tradition of economic
planning, China's leaders intervened in these industries to
generate global competitiveness, often targeting Chinese
producers lagging significantly behind global competitors.\821\
Four particularly noteworthy cases from the past year detailed
below have been the subject of bilateral discussions between
the U.S. and Chinese governments with varying degrees of
success. Some of these cases were resolved using specific
complaints tied to individual WTO obligations, but in other
cases, little progress has been made in combating
discriminatory Chinese policies exploiting vague WTO rules
despite threats of specific action from China's trading
partners.
Chinese government efforts to use industry policies to
protect or develop Chinese industries at the expense of foreign
firms may grow more acute as obvious barriers to trade are
eliminated and more subtle barriers succeed. This shift to more
defensible or less transparent tactics in industrial policies
may take several years, as the Chinese still must replace
specifically WTO-inconsistent development policies built on
technology transfer and import substitution. U.S. policymakers
will have to be vigilant to prevent
discrimination against U.S. products and service providers and
to ensure that China's WTO obligations are helping China create
a robust commercial legal system.
Value added tax rebate on integrated circuits
Efforts by the United States convinced the Chinese
government to abandon its value added tax (VAT) rebate policy
for domestically-produced integrated circuits in July 2004. The
policy had the potential to devastate the U.S. industry by
forcing it to relocate both semiconductor fabrication and
research and development to China to achieve lower production
costs and gain access to the rapidly expanding Chinese market.
On March 18, 2004, the United States formally sought
consultations with China under Articles 1 and 4 of the WTO
Dispute Settlement Understanding (DSU) regarding the Chinese
government's practice of providing a partial VAT rebate to
semiconductor manufacturers designing and fabricating
integrated circuits (ICs) in China.\822\ This challenge was the
first invocation of the WTO dispute settlement mechanism
against China since the latter's accession to the WTO in
December 2001.
China established its VAT rebate policy before acceding to
the WTO through the State Council's promulgation of a Notice on
June 24, 2000.\823\ This Notice provided that firms
manufacturing ICs in China should receive a rebate of 11
percent of China's normal VAT rate of 17 percent, reducing the
effective VAT rate to 6 percent.\824\ The policy only granted
rebates to firms manufacturing ICs in China. Chinese tax
authorities continued to assess the full VAT of 17 percent for
sales of imported ICs. The United States asserted that the
policy violated Article III of the General Agreement on Tariffs
and Trade (GATT 1994), which prohibits the imposition of
``internal taxes or other internal charges of any kind in
excess of those applied, directly or indirectly, to like
domestic products.'' \825\
Consultations at the WTO between the Chinese and U.S.
governments began in April 2004. Although the 60-day period
during which a complaining WTO member cannot seek the formation
of a panel expired before the end of May, the United States
refrained from requesting a panel at the June meeting of the
WTO Dispute Settlement Body and continued consultations with
the Chinese government on the policy. On July 8, 2004, the
Chinese government agreed not to certify any additional
enterprises for preferential treatment and to phase out the
policy for existing beneficiaries by April 1, 2005.\826\
Wireless local area network (WLAN) architecture and privacy
infrastructure (WAPI)
U.S. government action, culminating in the April 21, 2004
meeting of the U.S.-China Joint Commission on Commerce and
Trade (JCCT), also prevented a commercially onerous set of
standards from injuring the U.S. wireless networking industry.
In this case, the General Administration of Quality
Supervision, Inspection and Quarantine of the People's Republic
of China (AQSIQ) sought to implement standards that not only
deviated from a corresponding set of international standards
but also had the potential to force the transfer of technology
from U.S. computer manufacturers to their Chinese competitors
as a requirement of importation.\827\ In July 2003, AQSIQ and
the Standards Administration of China (SAC) met and determined
that after December 1, 2003, wireless networking equipment
imported, manufactured, or sold in China would have to comply
with two Chinese standards for wireless local area networks
(WLAN).\828\ These standards differ from an adopted
international series of WLAN standards designated 802.11 by the
International Standards Organization.\829\ Specifically, the
encryption algorithms for the Chinese standards, known as WLAN
Architecture Privacy Infrastructure (WAPI), could not function
with 802.11-compliant hardware or software. Through the WTO
Agreement on Technical Barriers to Trade (TBT Agreement), China
committed to use international standards as the basis for
domestic standards except when ineffective or inappropriate and
to refrain from adopting more trade-restrictive standards than
necessary.\830\ Yet, under China's proposed standard, hardware
products that operate according to internationally accepted
standards would not function on a network using the Chinese
standards. Moreover, the implementation by SAC and the State
Encryption Management Commission (SEMC), a sub-unit of AQSIQ,
would have required foreign computer manufacturers to provide
their products to 24 Chinese computer firms for preparation to
enter the market.\831\ Those Chinese firms would have loaded
the WAPI algorithms on the foreign firms' hardware and
controlled the conformity assessment process for the foreign
firms' equipment.
Although AQSIQ later adjusted the date the policy would
take effect from December 1, 2003 to June 1, 2004, the lack of
transparency and the unpublished algorithm for the standard
made this policy particularly problematic for foreign computer
manufacturers. The U.S. government responded to the
promulgation of this policy by both requesting a delay in
implementation and seeking its revocation.\832\ At the April
2004 meeting of the JCCT, Vice Premier Wu Yi agreed that the
Chinese government would suspend the
implementation of the new standards indefinitely; work to
revise the standard and its implementation, taking into account
the comments provided by a variety of parties; and participate
in the processes of international standards making bodies
dealing with wireless encryption.\833\
Export controls on coke
In 2004, another potential WTO dispute settlement case
arose in the context of the Chinese government's export quota
on coke, a key input in steel production. Although China is the
world's largest coke producer, it exports only a small
percentage of its overall output.\834\ This type of export
restriction, which a WTO member may only impose to remedy a
critical shortage, to implement a legitimate standard used in
international trade, or to implement a legitimate environmental
objective, became a problem in 2004 because China's increased
demand for raw materials has contributed to steadily rising
commodity prices globally.\835\ As a result, the Chinese export
quota has begun to affect U.S. steel producers.
The European Union apparently reached an agreement with
China in May 2004 guaranteeing the same level of quota in 2004
as it received in 2003, but such an arrangement may not
guarantee enough Chinese coke to satisfy U.S. demand in
2004.\836\ The U.S. trade agencies continue to negotiate with
their Chinese counterparts to reach an acceptable resolution of
this problem.
Automobile Industry Development Policy
China's new Automobile Industry Development Policy poses
serious market access problems for the U.S. automobile industry
through new controls on in-country investment and a variety of
obstacles to and discrimination against imports. In 2003,
China's National Development and Reform Commission (NDRC)
issued a draft of the Automobile Industry Development
Policy.\837\ In May 2004, the NDRC issued the final version of
the policy. Foreign industry complaints about the draft policy
centered on the requirements that foreign-invested enterprises
participating in the particular manufacturing covered by the
policy, including automobile and
motorcycle assembly and auto parts manufacture, faced high
minimum capital requirements and a prohibition on majority
ownership.\838\ While NDRC addressed some of these restrictions
in the final version, it still presents concerns for small and
medium-sized U.S. auto parts manufacturers.
Much of the policy addresses changes designed to create
Chinese automobile brands through consolidation and higher
barriers to market entry. This brand-creation part of the
policy will also have inevitable effects on foreign investment
in the automobile and motorcycle sectors, as it limits the
number of joint venture partners available for U.S. firms.
While not prohibiting automobile imports, the policy places
significant functional limitations on sales and distribution
channels for importers by requiring them to establish complete
distribution networks for their products.\839\ Finally, the
subsidization of China's automobile industry, mostly through
loans from China's state-run banking system, changes the
competitive landscape by bolstering Chinese automobile firms at
the expense of their foreign competitors.
Intellectual Property Rights: Laws and Enforcement
The Chinese government has not made progress toward
effective enforcement of intellectual property rights (IPR).
After the cancellation of the World Intellectual Property
Organization (WIPO) summit in 2003 due to the Severe Acute
Respiratory Syndrome outbreak, China ceased making even
rhetorical progress toward the goal of improving IPR protection
in China. After the summit's cancellation, all indications that
China would make concrete progress by, for example, joining the
WIPO Copyright and Performances and Phonograms Treaties
(collectively, WIPO Internet Treaties), evaporated. Instead,
extremely high rates of piracy and counterfeiting continued in
2003 and U.S. rightholders noted the resurgence of exports of
counterfeit goods from China.\840\ In November 2003, the U.S.
Ambassador to China convened the second annual IPR Roundtable
in Beijing and the U.S. Embassy in Beijing unveiled its online
IPR Toolkit to provide advice on protecting intellectual
property in China.\841\ In spite of these constructive
overtures by the United States, the Chinese government failed
to take actions showing a serious intent to reduce
counterfeiting and piracy, instead disputing the seriousness of
the problem.\842\
Beginning at the end of 2003, and continuing through the
meeting of the JCCT in April 2004, the Chinese government began
to make the type of personnel assignments and broad commitments
that have resulted in improved IPR protection in other
countries.\843\ In November 2003, the Chinese government
designated Vice Premier Wu Yi the leader of the State Council's
``Leading Group on IPR Protection.'' \844\ At the JCCT meeting
in April 2004, Vice Premier Wu committed China to improving
both the IPR legal regime and government enforcement of
IPR.\845\ If implemented, these commitments may reduce the rate
of piracy and counterfeiting in the Chinese market and help
conform China's IPR protection regime to the commitments in the
WTO Agreement on Trade-Related Aspects of Intellectual Property
Rights (TRIPs).\846\ Close vigilance by U.S. trade officials is
necessary to ensure that China meets these commitments.
Unfortunately, the central government has not demonstrated
a capacity or desire to implement these commitments.
Implementing the commitment to increase the range of IPR
violations subject to the criminal law, for example, requires
only that the SPC lower the criminal enforcement threshold, but
the Court has not yet taken that simple step.\847\ And because
most infringement occurs far from the center of government in
Beijing, IPR violators avoid sanction through a combination of
bureaucratic barriers, local protectionism, and
corruption.\848\ Moreover, several highly publicized IPR-
related events have attracted the attention of foreign
observers and caused U.S. businesses to question whether they
can risk bringing their intellectual property into the China
market.\849\
The developing capacity of Chinese courts with respect to
private IPR cases is a positive sign and worthy of greater U.S.
attention. In a number of cases, foreign rightholders have
successfully sued Chinese infringers in intermediate people's
courts.\850\ While difficult to quantify, the increasing speed
and reliability of intermediate people's courts in handling IPR
infringement cases reflect the results of government policies
seeking to improve judicial competence on IPR law, as well as
generally rising standards in the Chinese judiciary.\851\
Agricultural Market Access
China has become one of the largest foreign markets for
U.S. agricultural products, but market access issues limit this
important component of U.S.-China trade relations. China's
administration of its tariff rate quota (TRQ) system raised
market access concerns almost from the moment China entered the
WTO.\852\ The Chinese government has sought to address these
concerns with quota administration, although with mixed
success. The quota administration authorities adopted a series
of regulations in 2003 that should have resolved these
concerns, but renewed complaints in 2004 have called into
question whether the relevant Chinese authorities are
implementing the regulations.\853\
There has also been a lack of progress in resolving
problems with AQSIQ's administration of the quarantine process
for plant and animal products. Problems identified by U.S.
industry have lingered on without satisfactory reason despite
negotiations between AQSIQ and the U.S. Department of
Agriculture's Animal and Plant Health Inspection Service
(APHIS).\854\ The Commission has heard testimony that China's
failure to use science-based standards in its sanitary and
phytosanitary inspection process impedes imports of U.S.
agricultural products.\855\ Specifically, U.S. beef and poultry
cannot enter China's market if any pathogens are present and
arbitrarily enforced Chinese quarantine procedures adversely
affect trade in U.S. soybeans, grains, and oilseeds. The
American Chamber of Commerce in China asserted that AQSIQ does
not apply the same stringent standards to China's domestic
agricultural products.\856\ Although problems with individual
products are resolved periodically, the glacial pace of
approvals feeds the impression that AQSIQ uses quarantine as a
barrier to trade.
Services: Distribution Services and Trading Rights
Two of China's most important WTO accession commitments
were pledges to end restrictions on distribution services and
trading rights.\857\ While other barriers to market access
still exist, the end of these specific limitations will
dramatically change the way U.S. and other foreign companies do
business in China. China's commitments required eliminating the
restrictions on majority foreign-owned companies to obtain
trading rights and engage in certain segments of distribution
services by December 11, 2003, two years after accession.\858\
The Ministry of Commerce (MOFCOM) did not complete its draft of
the Foreign Trade Law, which covers trading rights, or the
Regulations on Foreign Investment in the Commercial Sector,
which covers most distribution services, until the spring of
2004. When the Chinese government published the measures,
however, it caught up with overdue commitments and, on paper,
granted trading and distribution rights to wholly foreign-owned
companies ahead of schedule.\859\ The coming year will tell
whether the implementation of these measures will have the
effect of eliminating these significant barriers to trade,
producing a positive impact for U.S. companies doing business
in China.
U.S. Government and Other WTO Member Technical Assistance to China
China has received technical assistance from the United
States aimed at assuring compliance with WTO commitments and
requirements. The principal vehicle for this type of assistance
is a U.S. Commerce Department program that began in September
2000. Continuing programs focus on WTO commitments where
China's implementation has lagged, including IPR enforcement.
In addition to traditional technical assistance programs run by
the Commerce Department's International Trade Administration
(ITA), innovative programs such as the U.S.-China Legal
Exchange and annual Standards Workshops have broadened the
program to reach different audiences.
U.S. programs have been overshadowed by other WTO members
who have committed far greater funds and personnel to their
systematic technical assistance programs to China than the
United States. The EU, Japan, and Canada significantly outspend
the United States, which spends about the same as
Australia.\860\ The impact of this funding gap is not academic:
on many trade issues on which the United States disagrees with
its trading partners, such as the recognition of geographical
indications (GIs) and the treatment of genetically modified
organisms (GMOs), the larger presence of other WTO members as
primary resources for training, source materials, ideas, and
policy approaches will likely prejudice U.S. companies that
confront these issues in China.
V(f) Forced Evictions and Land Requisitions
FINDINGS
Forced evictions in urban areas and the
requisition of farmland in rural areas are fueling a
wave of popular anger at officials and developers and a
growing number of citizen petitions, legal disputes,
and social protests across China.
Despite strong central government initiatives
and some local efforts to curb illegal land
transactions and abuses related to land transfers,
procedures and compensation standards for the
government requisition of land use rights and buildings
continue to be weighted heavily in favor of the
government and developers.
Existing procedural protections are inadequate
to protect the rights and economic interests of urban
residents and farmers whose land is requisitioned and
to check endemic corruption in the land sector.
Petitioners and some legal representatives seeking
redress of grievances related to evictions and land
requisitions have been detained or harassed.
Land Ownership in China
Under China's Constitution and the PRC Land Management Law,
the state owns urban land and peasant collectives own most
rural and suburban land.\861\ Within the framework of urban
state ownership, state entities, private entities, and citizens
may be granted or allocated land use rights.\862\ Although in
the past, work units assigned housing to most urban residents
without charge or for nominal rent, in the mid-1990s the
central government adopted policies that encouraged urban
residents to purchase apartments from their work units, often
at heavily subsidized rates or with limited transfer
rights.\863\ In rural areas, the PRC Rural Land Contracting Law
gives farmers 30-year land use rights to individual plots of
land free from local readjustments.\864\ In both urban and
rural contexts, individuals hold a land use right and may own
buildings or fixtures, but ownership of the land itself remains
in the hands of the state or the collective.\865\
Over the last decade, rapid economic growth, skyrocketing
land prices, and urban renewal have resulted in the large-scale
redevelopment and expansion of China's urban centers.\866\ To
make room for new infrastructure and private developments,
urban authorities are tearing down older residential areas and
relocating residents to new housing or providing them with
nominal compensation. The scale of the redevelopment and
relocations is enormous. From 1991 to 2003, for example,
Shanghai city authorities relocated nearly 900,000 households,
or 1.2 million people.\867\ In 2002 alone, Beijing authorities
relocated 86,000 people, and city officials plan to displace
300,000 more in the next several years as they prepare for the
2008 Olympics.\868\ The same pattern is evident in urban areas
across China.\869\
In the countryside, authorities are converting large tracts
of farmland to accommodate urban expansion and village economic
initiatives. To proceed with such projects, the state must
first requisition arable land from and compensate peasant
collectives according to a detailed legal process set out in
the Land Management Law and related regulations.\870\ After the
state compensates the collective for requisitioned land, it may
then use the land or sell land use rights to private
developers.\871\ According to official estimates, nearly 5
percent of the country's arable land has been lost as a result
of urbanization and development over the past seven years, and
more than 40 million peasants have been displaced by such
development over the past 20 years.\872\ This trend has alarmed
Chinese authorities, who view landless, unemployed peasants as
a threat to social stability.\873\
Problems in Urban Relocations and Rural Land Requisitions
Although many relocations take place without incident,\874\
a number of problems and abuses have been associated with
relocations and land requisitions in China. Urban residents are
supposed to be paid the market value of their land use rights
and structures.\875\ But most of the value of urban property
lies in the land itself, which the state owns, and not in the
dilapidated structures that often stand on it or the limited
land use rights held by many residents (if they hold any formal
land use rights at all).\876\ As such, in many cities,
relocation and resettlement compensation is not sufficient for
residents to purchase new homes in comparable locations.
Resettlement housing is often located in distant suburbs,
detached from the social and business networks in which
residents have lived and worked for years.\877\ Such
displacement angers many residents.\878\ In rural areas,
collectives retain much of the compensation that the state
provides when it requisitions arable land, and the small amount
that farmers do receive is significantly less than the economic
value of the 30-year land use right that the Rural Land
Contracting Law guarantees to farmers.\879\ As a result,
farmers end up landless and, once they have exhausted their
small subsidies, unemployed and without a source of
income.\880\
State transfers of land also create significant incentives
for corruption. Because compensation is low under existing
legal standards, local government entities can compensate
residents and farmers or provide resettlement housing at
nominal cost and then sell land use rights to developers at a
significant profit.\881\ In some cases, corrupt officials,
developers, and demolition companies siphon off funds intended
for compensation or resettlement, fail to provide promised
resettlement housing, or unfairly reduce compensation amounts
through fraudulent appraisals or other tactics.\882\ The large
number of illegal land transactions in China is one indication
of the extent of such corruption. Last year alone, the
government identified more than 178,000 illegal or irregular
land transactions, and in August 2004 it announced that it had
suspended work on 4,800 illegal development zones.\883\
Procedures for urban demolitions and rural land
requisitions lack transparency and are heavily weighted in
favor of the government and developers. Generally, government
authorities do not give urban residents an opportunity to
comment on or challenge general development plans or specific
demolition decisions before they are made.\884\ In most cases,
officials simply inform residents that they will be relocated
and give them a limited time to negotiate compensation and
move.\885\ Residents may challenge the amount of compensation
offered, but cannot stop the demolition process once government
arbitration panels rule on compensation disputes, even if they
appeal the arbitration decision to a people's court.\886\ In
many rural areas, courts often refuse to accept land disputes
altogether.\887\ New regulations obligate land officials to
hold hearings on a limited range of land requisition decisions,
and farmers may request a hearing to comment on compensation
plans or plans to convert agricultural land for non-
agricultural use.\888\ In practice, however, urban and rural
residents have little chance of overturning a demolition or
land requisition decision or challenging the purpose for which
land is taken, and at most can hope only to improve their
compensation.\889\
Finally, as documented in Chinese and Western media,
reports by international human rights organizations, and
Chinese government circulars, government officials, developers,
and demolition companies often employ abusive tactics to deal
with recalcitrant residents. According to such reports,
developers and demolition personnel have cut off water and
electricity, used physical threats and other forms of
intimidation, and resorted to violence to deal with residents
who refuse to move or who hold out for additional
compensation.\890\ Although the central government has issued
stern warnings for such ``uncivilized'' demolitions and land
seizures to stop and has prosecuted some companies and
individuals for abuses,\891\ reports of violent evictions and
coercion continue to emerge.\892\
Social Conflicts Related to Property Takings
Over the past year, property seizures and relocations in
China's cities and the requisition of farmland for development
in rural regions have become two leading causes of social
discontent in China. According to official statistics, the
Ministry of Land and Resources received more than 18,620
complaints related to relocation in the first half of 2004
alone, compared with 18,071 complaints in all of last
year.\893\ In December 2003, Supreme People's Court (SPC)
President Xiao Yang reported that the fastest growing
categories of administrative lawsuits in China relate to
``urban construction'' and ``land resources.'' \894\ More
disturbing to government and Party officials, demonstrations,
social protests, and violent confrontations
related to property seizures are on the rise.\895\ In one
shocking incident last year, several individuals burned
themselves in Tiananmen Square to protest the demolition of
their homes.\896\ A leading Chinese social scientist reports
that property rights have now displaced tax burdens as the
primary focus of peasant activism.\897\ State Council circulars
and official statements acknowledge that property protests are
serious, widespread, and ``influencing social stability and the
normal order of production and life.'' \898\
Alarmed by such social unrest, central government leaders
have expressed growing concern about land abuses and taken a
series of steps to address the problem and demonstrate sympathy
with popular grievances. Over the past year, the National
People's Congress (NPC) adopted a new constitutional amendment
to enhance the protection of property rights and is reportedly
working on a Property Law, a Law on the Protection of Peasant
Rights, and revisions to the Land Management Law.\899\
Observers expect these new legislative initiatives to increase
compensation standards for land requisitions and address some
of the most common complaints related to relocations. The
government appointed a high-level policymaker to oversee
demolition and land requisition reforms and has issued numerous
regulations and circulars in an attempt to address common
public complaints about evictions and improve procedures.\900\
Central authorities also attempted to rein in land corruption
by removing the Minister of Land and Resources and undertaking
a series of investigation and rectification campaigns in both
urban and rural areas.\901\
Some local governments and lawyers associations have also
taken positive steps to address land conflicts. In Shanghai,
for example, the government has worked to publicize information
regarding resident rights and re-evaluate local compensation
standards, while the local lawyers association has introduced a
city-wide legal assistance project to provide pro bono
representation for displaced residents.\902\ In July 2004,
Shanghai also announced that it was raising the minimum
standard compensation for relocations, although residents have
complained that even the new compensation level is not in line
with market standards.\903\
At the same time, government authorities have used severe
tactics in an effort to suppress public dissent and unrest
related to land transactions. For example, central authorities
issued a directive instructing local officials to keep land
petitioners out of Beijing during the 2004 NPC session and
arbitrarily detained or repatriated some petitioners who
managed to enter the city.\904\ Both the State Council and
local authorities have instructed the news media to limit
reporting on relocation disputes to avoid ``intensifying
conflicts.'' \905\ In some cases, activists and legal advocates
for displaced residents have also been harassed or
prosecuted.\906\ In one recent example, a court in Shanghai
convicted Zheng Enchong, a lawyer who represented evicted
residents in a sensitive demolition case, of ``disclosing state
secrets.'' In the wake of Zheng's conviction, Shanghai lawyers
expressed concern about taking on property rights cases that
involve direct challenges to the government.\907\ In other
cases, land petitioners have reportedly been sent to re-
education through labor camps.\908\
Although central government concern about land abuses
appears to be genuine,\909\ the many government circulars on
urban demolitions and rural land requisitions and reports on
protests suggest that forced evictions continue to be a
problem. As senior Chinese legislators noted in June 2004,
local governments are resisting efforts to curb abuses.\910\
According to foreign and Chinese experts, additional changes
will be necessary to address the relocation and land transfer
problem. First, they argue that more precise guidelines are
needed for when land can lawfully be taken by the government
and sold for redevelopment.\911\ Compensation standards, the
key issue in the majority of relocation disputes, need to be
enhanced.\912\ Finally, procedures for urban demolitions and
rural land requisitions remain stacked in favor of the
government and developers. Chinese experts note that demolition
and relocation disputes should be resolved through a neutral
judicial process, and not by administrative agencies with
connections to developers.\913\ Until the government implements
such protections, high land values are likely to continue to
fuel local corruption and further unrest.
VI. Tibet
FINDINGS
Envoys representing the Dalai Lama visited
China in September 2004. This visit, the third in
recent years, creates an important opportunity to
address obstacles and achieve progress through
dialogue.
Chinese leaders misrepresent the Dalai Lama's
offer to accept bona fide autonomy under Chinese
sovereignty as an attempt to gain independence in a
``disguised form.'' The Dalai Lama has stated that a
solution can be based on China's Constitution.\914\
Increasing Han population in Tibetan areas
poses a significant challenge to Tibetan culture and
heritage. Authorities deny that the ethnic mix is
changing, or that there is a negative effect on Tibetan
culture.
Most Tibetans live in rural areas where their
incomes average one-fifth of those in Tibetan towns and
cities. Central government subsidy of development
projects in Tibetan areas drives economic growth at a
brisk pace, but the Han population benefits
disproportionately because most funding is channeled
into infrastructure construction or urban development.
Tibet development projects that are discussed,
researched, and planned in an open and objective
manner, that are based on actual local circumstances,
and that take into account the views of the Tibetan
stakeholders, will have the best chance to help
Tibetans protect their cultural, religious, and
environmental heritage.
The rights of Tibetans to constitutionally
guaranteed freedoms of speech, religion, and
association are subject to strict constraint.
Authorities invoke ``state security'' to justify
repression or punishment of peaceful expression even
when there is no threat to the state. However, emerging
patterns suggest that local governments in some Tibetan
areas are relatively less repressive than others.
The Status of Discussion between China and the Dalai Lama
U.S. policy recognizes the Tibet Autonomous Region (TAR)
and Tibetan autonomous prefectures and counties in other
provinces to be a part of the People's Republic of China.\915\
An important objective of the U.S. government is encouraging
direct and substantive discussions between the Dalai Lama and
the Chinese government.\916\
The Dalai Lama is in an unmatched position to help ensure
the survival and development of Tibetan culture, and to
contribute to China's stability and prosperity. Envoys
representing the Dalai Lama visited China, including Tibetan
areas, in September 2002 and May 2003. Special Envoy Lodi Gyari
expressed cautious optimism after the visits but observed that
disagreements are substantial, and that mutual understanding
and trust are lacking.\917\ On September 11, 2004, the Tibetan
givernment-in-exile announced that the envoys would depart for
China the following day on their third visit.\918\ During the
past year, Chinese officials have amplified previous criticism
of political and territorial formulations raised by the Dalai
Lama or the Tibetan government-in-exile.\919\
Autonomy
In May 2004, as the Dalai Lama's envoys waited for
permission to travel to China, Beijing published a White
Paper\920\ that vigorously defends China's system of ethnic
autonomy. The timing and tone of the publication may underscore
Chinese government resolve to keep any discussion of Tibetan
governance within the parameters of the PRC Regional National
Autonomy Law.\921\ The White Paper is aimed directly at the
Dalai Lama and concludes on a note that is blunt and personal:
It is hoped that the Dalai Lama will look reality in
the face, make a correct judgment of the situation,
truly relinquish his stand for ``Tibet independence,''
and do something beneficial to the progress of China
and the region of Tibet in his remaining years.
In theory, the Regional National Autonomy Law aims to
balance central and local interests, and subordination with
self-government. In fact, the same law that codifies the
autonomous rights of local self-governments sharply curtails
them by requiring that they bow to state interests and
``fulfill the tasks assigned by state organs at higher
levels.'' \922\ The White Paper declares that ``under the
unified leadership of the state,'' ethnic minorities in
autonomous areas exercise ``the right of self-government to
administer local affairs.'' \923\ The law authorizes local
people's congresses to enact new laws, as well as
modifications, partial exemptions, and postponements to
statutes promulgated by higher levels of government.\924\
According to the paper, the TAR legislature has enacted 220
laws tailored to protect local interests since the region was
established in 1965, including laws that lower the minimum
marriage age, create local holidays, and regulate foreign
mountain climbers.\925\ Examples such as these point to the
insufficient authority Tibetans have over their social,
economic, and political environment.
As the Dalai Lama told Canadian Prime Minister Paul Martin,
``Tibet should be given autonomy, or self-rule, which the
Chinese Constitution provided.'' \926\ But the official Chinese
formulation subordinates local interests to the state:
``Minorities, organizations,
associations, localities, etc., apart from being subordinate to
the leadership of the state, government, or upper-level unit to
which they belong, exercise definite rights with respect to
their own general affairs.'' \927\ According to the Times of
India, Samdhong Rinpoche, the first prime minister elected by
Tibetans living in exile, said last year that his concept of
autonomy would provide ``a little more'' than Hong Kong
citizens are promised under ``one county, two systems.'' \928\
The Tibetan government-in-exile expresses support for the Dalai
Lama's initiatives, but asserts that, ``The Tibetan people,
both in and outside Tibet, look to the [Tibetan government-in-
exile] as their sole and legitimate government.'' \929\
Chinese authorities commingle the Dalai Lama's statements
with other voices in the Tibetan community, including those of
the Tibetan government-in-exile. They hold the Dalai Lama
accountable for inevitable contradictions and accuse him of
seeking ``independence in disguised forms.'' \930\ An official
in a Tibetan part of China told a Commission staff delegation
in September 2003, ``In our view, the Dalai and the exiled
government are part and parcel of the same group. People here
believe that the exiled government is the same as the Dalai,
and that the Dalai is the same as the exiled government. They
are one and the same.'' In Beijing, an official of the CCP's
United Front Work Department (UFWD) referred to the spectrum of
views in the exiled Tibetan community and told a Commission
staff delegation, ``The Central Government doesn't know what's
on the Dalai Lama's mind.'' \931\ The Dalai Lama, who turns 70
next year, has said that he wants to meet Chinese officials
face-to-face in an effort to reduce suspicions.\932\
Recent statements by the Dalai Lama underscore the extent
of his efforts to initiate a productive dialogue that takes
into account the constitutional and geographic framework
already shaped by Chinese authorities. His remarks focus on 13
autonomous areas\933\ set up by China where Tibetans are
entitled, according to Chinese law, to practice local self-
government. According to a 2003 interview with the Voice of
America, the Dalai Lama does not claim that the entirety of
territory where Tibetans live was a unified administration
under Lhasa's control when the People's Liberation Army arrived
there.\934\ He believes that a case can be made within Chinese
law for consolidating contiguous areas of Tibetan
autonomy.\935\ The Dalai Lama proposes improving the system of
autonomy, not discarding it.
Tibetan Culture and Human Rights
China has not initiated major new campaigns across Tibetan
areas in the past year. However, existing policy initiatives
are gaining momentum, especially the Great Western Development
program, formulated to accelerate economic development in
China's western provinces and speed their integration into the
political and social mainstream.\936\ Government policies that
favor atheism and promote strict adherence to a national
identity defined in Beijing discourage Tibetan aspirations to
maintain their distinctive culture and religion. Rights
outlined in the Regional National Autonomy Law are weak in
practice.
The central government attempts to ensure that policy is
consistent among the five provinces where Tibetans live, but
Commission staff and other experts observe that modest
distinctions may be emerging in local conditions. Current
levels of known political imprisonment of Tibetans have fallen
to low levels in Qinghai and Gansu provinces. In Sichuan, the
opposite is the case. In the TAR, Tibetan culture and religion
continue to face daunting challenges, although the number of
known political prisoners is gradually declining.\937\
Concurrent with the lower level of political imprisonment in
Qinghai and Gansu, the apparent conditions for religion and
education may be relatively less repressive than in Sichuan or
the TAR.\938\
Culture, Demography, and Development
A significant number of Tibetans seeking increased
stewardship over their future avoid the dangers of political
expression and focus on protecting their culture and natural
environment, or on developing education and sustainable
economic resources. Tibetan citizens and NGOs work on the
periphery of well-funded government programs\939\ that have the
capacity to undermine or overwhelm Tibetan culture. Individuals
and NGOs understand the risks of researching, planning, and
implementing projects that the Party and state could perceive
as a challenge. Careful planning can make economic development
and cultural preservation coexist, and not be mutually
exclusive.
A USAID rangeland expert emphasized the importance of
ensuring that development models are sound, sustainable, and
create real benefits for their target group. He told a
Commission roundtable in March 2004:
In my opinion, the key issues for sustainable
development in the Tibetan pastoral areas are
widespread poverty, rangeland degradation,
unsustainable livestock production practices, poor
market development, weak community participation, and
lack of integration in addressing all of these
problems. The development challenge now is determining
how to target funding better to address these issues
and to ensure that resources allocated for development
and poverty reduction actually reach the Tibetan
farmers and nomads.\940\
Almost 90 percent of the Tibetans in China live in rural
areas and engage in farming and herding.\941\ Their incomes are
rising, but residents of towns and cities have incomes five
times higher.\942\ The gap deepens the relative poverty of
farmers and herders and serves to marginalize them. TAR
officials briefing Commission staff delegations in September
2003 and April 2004 said repeatedly that government policy
seeks ways to boost the income of rural families.
Tibet's rural areas urgently need significant investment of
government money, but greater government largesse will not
resolve the long-term cultural crisis facing Tibetans. A short-
term solution for many rural Tibetans is sending a family
member to find work in the infrastructure construction boom. At
the same time, Tibetans encounter intense competition from
Chinese migrants in those labor markets. Professor Melvyn
Goldstein told the Commission roundtable:
With respect to such work, we found widespread
frustration and anger in the villages about the
difficulties villagers face in finding jobs. Villagers
commonly complain that there are not enough jobs for
them and that, because their skill levels are low, most
of the jobs they find pay poorly. The villagers
overwhelmingly lay the blame for this on the
unrestricted influx of non-Tibetan migrant laborers.
Rural Tibetans now find themselves in competition for
construction jobs with large numbers of more skilled
and experienced Chinese workers, and given the current
policy, this competition will certainly increase. How
Tibetans will fare in the future, therefore, is less
clear. There are some positive signs, but it is hard to
be very optimistic. What is really needed is a change
in government policy that will give much greater
priority to securing jobs for Tibetans, perhaps through
a large-scale system of set-aside contracts for them
over some period of time.\943\
Central government spending fills the gaping shortfall
between local government revenue and expenditure.\944\ Coupled
with development projects funded by other provinces, this
spending fuels rising incomes, especially in towns and cities,
and creates jobs. This situation creates limited opportunities
for Tibetans and attracts a substantial influx of additional
Chinese migrants. No infrastructure project is accorded a
higher priority or larger budget than the Qinghai-Tibet
railroad,\945\ scheduled for completion in 2007. In April 2004,
an official involved in the project told Commission staff that
Tibetans made up 6,000-8,000 of the 30,000 workers in Qinghai
and the TAR. Last year the figure was 6,000 Tibetans in a total
of nearly 38,000 workers. Reliable reports also suggest that
Tibetans earn significantly less than Han workers; an unskilled
Tibetan might earn about $210 per month, but a Han worker of
similar skills earns about $700.\946\
Ragdi (Chinese: Raidi), former head of the TAR People's
Congress and now a Vice-Chairman of the NPC Standing Committee,
denied that Chinese influx into Tibetan areas is taking place
or that Tibetan culture is threatened.\947\ Other senior
Tibetan officials acknowledge but play down the rise of migrant
populations. Jampa Phuntsog, chairman of the TAR government,
observed last year, ``[T]he migrant population in the region is
increasing with economic development and the construction of a
railway into the region.'' But, he said, ``bad weather and
geographical conditions'' will keep them from staying
permanently, and ``the ratio of ethnic groups in Tibet will not
change dramatically.'' \948\
An official in Lhasa responded to a Commission staff
comment about the apparent understatement of Han population in
census data.\949\ ``Every day there are more than 200,000 [Han]
mobile population in all of [the TAR],'' he acknowledged.
``Their number is highest from June through October.'' Some
officials were willing to concede that the sustained presence
of a substantial non-permanent population can convey
significant impact on an indigenous culture, even if the
membership of the non-permanent group is in constant flux.
Tibetans speaking privately often express grave concern
about the changing population mix. Many fear that the
completion of the railroad could result in a transformation
similar to that of Inner Mongolia, where rail links were built
before the PRC was established,\950\ and Han today outnumber
Mongols by nearly five to one.\951\ In the TAR, there are 15
times as many Tibetans as Han, according to the census. Outside
the TAR there are only three autonomous Tibetan areas that have
been penetrated by rail lines. In all, the Han population
surpasses the Tibetan population by multiples.\952\
Ragdi, a member of the Party Central Committee and an
honorary president of the newly created Association for the
Protection and Development of Tibetan Culture,\953\ endorsed
the White Paper on autonomy and described the changes to the
TAR and its ``social look'' as ``earth-shaking.'' \954\ If
Tibetan culture is to withstand the profound transformation,
Tibetans will need a fully functional role in their future--
from legislation and governance, down to grassroots
implementation. A USAID expert told the Commission roundtable
on Tibetan development:
To date, most Tibetan farmers and nomads have not
participated fully in the assessment, planning, and
implementation of development programs and the policies
that affect their lives. Government development
programs have generally taken a top-down approach and,
despite many of their good intentions, have often been
hampered because Tibetan farmers and nomads were not
involved in both the design and implementation of
activities.\955\
Human Rights, Law, and Religion
The Chinese government severely restricts the rights of
Tibetans to exercise constitutionally guaranteed human rights,
including the freedoms of speech, press, association, and
religion. China's constitution also bans actions deemed
``detrimental to the security, honor and interests of the
motherland.'' \956\ The state represses or punishes peaceful
expression by Tibetans deemed to ``endanger state security''
\957\ or to be ``splittist,'' \958\ even if the expression is
non-violent and poses no threat to the state.
An official in Beijing explained the Chinese view of the
roles of ``violence'' and ``consequence'' in crime to
Commission staff in September 2003. ``There is not a distinct
line between violent and
non-violent,'' he said. ``A non-violent action can result in
eventual violence. If someone advocates an idea that could
later become a threat to the country, then the statement is a
form of violence, and it is a crime to be punished . . . Social
consequence determines whether it is a crime (emphasis
added).'' A provincial official told Commission staff, ``All
criminal acts must have four elements to be crime.'' One of the
elements, he said, is ``consequence.'' But he emphasized that
in the case of Tibetans, ``You have to understand the
background. It is necessary to take Tibetan history into
account. Tibetans combine religion and politics.'' Another
official defended the notion of crimes without consequence
succinctly: ``Some actions that are crimes have consequences.
Some don't.'' \959\
The number of known Tibetan political prisoners serving
sentences or awaiting disposition of their cases is almost
unchanged from a year ago, according to a February 2004 report
by Tibet Information Network (TIN).\960\ According to TIN, a
surge of Tibetan political imprisonment in Sichuan has offset
declines elsewhere and stalled the overall decline in political
prisoner numbers that began in 1997. Two-thirds of the 145
prisoners listed are monks or nuns. About 60 are serving
sentences of ten years or longer. In April 2004, an official in
Lhasa indicated to Commission staff that roughly 75 Tibetans
are serving sentences in the TAR for endangering state
security, or counterrevolution for convictions before
1997.\961\ Most of them are incarcerated in Lhasa's TAR Prison,
also known as Drapchi, and formerly as TAR Prison No. 1.
Authorities released Buddhist nun Phuntsog Nyidrol from TAR
Prison on February 24, 2004, after she served more than 14
years of a sentence extended from nine to 17 years, which was
then reduced for good behavior. After she joined other nuns in
a peaceful demonstration in Lhasa in 1989, an intermediate
people's court convicted her of counterrevolution. Her sentence
extension was punishment for helping to smuggle a cassette
recording of imprisoned nuns singing songs with politically
tinged lyrics out of the prison. Fourteen nuns received
sentence extensions for the cassette incident. She was the
first detained and the last released. According to a report in
August 2004, she is kept under constant police surveillance and
is not permitted to leave her home without an escort.\962\
Commission staff discussed cases of current Tibetan
political prisoners with provincial officials in the TAR, and
in Sichuan, Qinghai, and Gansu provinces, during visits in 2003
and 2004. The level of known political imprisonment in Qinghai
and Gansu provinces has dropped to pre-1989 levels.\963\
Authorities in Qinghai, Gansu, and the TAR provided information
about the general prison situation and commented on some
individual cases. Staff discussions with officials in Sichuan
province were less constructive.
Buddhist lama Tenzin Deleg (Chinese: A'an Zhaxi) is
Sichuan's best-known Tibetan political prisoner. In December
2002, he was sentenced to death along with another Tibetan,
Lobsang Dondrub (Chinese: Luorang Dengzhu), after a closed
trial on charges of causing a series of explosions and inciting
separatism. Authorities executed Lobsang Dondrub a few weeks
later despite assurances to senior officials of the U.S. and
other governments that the Supreme People's Court (SPC) would
review his sentence. SPC officials in Beijing told Commission
staff that the case was prosecuted in full accordance with
Chinese law, and dismissed suggestions that evidence may have
been inadequate and legal procedures were flawed. In Chengdu,
authorities told Commission staff that China Central Television
(CCTV) broadcast a show featuring Tenzin Deleg admitting guilt
and comparing the prosecutors and judges to ``his own mother''
since they ``helped him and taught him.'' In September 2003,
Commission staff requested the assistance of the Sichuan
authorities to obtain a copy of the alleged CCTV broadcast. The
Commission has not received a tape or transcript. Authorities
confirmed that Tenzin Deleg's two-year reprieve of execution
would expire in January 2005.\964\
State restrictions on religion, including devotion to the
Dalai Lama, interfere with the normal practice of religion for
Tibetans. Suspicious authorities can impute subversive motives
to Tibetans' dedication to their religion, as well to their
enthusiasm for Tibetan culture, language, and self-identity.
Provinces where political imprisonment rates are lower,
however, also appear to have a somewhat less repressive
environment for Tibetan culture. Conversely, provinces where
political detention rates are higher are known to deal with
Tibetans and their culture more harshly.
The unrestricted power that the Party and state enjoy to
characterize peaceful expression as a threat to state security,
when in fact no threat or consequence to the state is present,
undermines Tibetan human rights. Modern states regularly update
assessments of actions that could pose a bona fide threat to
state security and adjust levels of tolerance and response
accordingly. Prosecuting and punishing peaceful expression are
inconsistent with international human rights practices and the
rule of law. If Chinese
police, prosecutors, and courts successfully implement China's
constitutional articles and laws that protect human rights and
the rule of law, then Tibetans and Chinese will both benefit.
VII. North Korean Refugees in China
FINDINGS
The Chinese government forcibly repatriates
North Korean refugees seeking employment and escape
from starvation and repression.
Because China does not classify North Korean
migrants as refugees, the Chinese government denies
access to this vulnerable population by the United
Nations High Commissioner for Refugees (UNHCR).
North Korean refugees deported from China to
the Democratic People's Republic of Korea (DPRK) face
punishment ranging from detention in labor camps to
long imprisonment to execution.
Women are among the most vulnerable of the
North Korean refugees in China, at risk of exploitation
and abuse at the hands of human traffickers.
Introduction
An estimated 50,000 to 100,000 North Korean refugees may
currently live in northeastern China. Observers have noted that
more precise figures cannot be obtained because China does not
allow international aid agencies to work in the border
region.\965\ The Chinese government forbids the U.N. High
Commissioner for Refugees (UNHCR) office from visiting areas
thought to have relatively high North Korean populations to
evaluate and identify genuine refugees among China's growing
population of North Korean migrants. The government evidently
fears that granting North Korean migrants refugee status would
encourage an even greater flood of migrants across the border.
Instead, authorities on China's side of the border routinely
force North Koreans to return to the DPRK, where they face
imprisonment, torture, and sometimes execution.
Chinese Repression of North Koreans
Although many North Koreans in China have fled political
persecution and severe food shortages in the DPRK, Chinese
officials classify them as ``irregular migrants'' or ``economic
migrants,'' not as refugees. By refusing to grant North Koreans
refugee status, Chinese authorities deny them the
internationally recognized right to seek UNHCR assistance. In
testimony before the U.S. House of Representatives Subcommittee
on Asia and the Pacific, a U.S. analyst said China's
classification has no legal basis. He told the subcommittee,
``There is no principle in refugee law that does what China
purports to do, which is to declare an entire people as prima
facie not refugees.'' He called China's treatment of North
Koreans ``evidence of prohibited discrimination on the basis of
race and national origin.'' \966\
As a state party to the 1951 Geneva Convention Relating to
the Status of Refugees (1951 Convention) and the 1967 Protocol
Related to the Status of Refugees,\967\ the Chinese government
is obligated to grant North Korean refugees the following:
Protection from discrimination on the basis of
race, religion, or nationality (Article 3).
Freedom to choose a place or residence and to
move freely within the territory (Article 26).
Immunity from prosecution for illegal entry
for those who came from a territory where their life or
freedom was threatened (Article 31).
Protection from expulsion from the country
(Article 32).
Protection from forcible return to a territory
where life or freedom would be threatened (Article 33).
Despite these obligations, one witness told a Commission
roundtable in April 2004 that, ``North Koreans in China are
extremely vulnerable to arbitrary arrest and deportation back
to North Korea, where they endure sentences ranging from
several months in labor training centers to long-term
imprisonment to execution.'' By arresting and deporting North
Koreans, China is honoring a treaty obligation with the DPRK.
However, these repatriations contravene China's obligations as
a signatory of the 1951 Convention. When a migrant is
repatriated, DPRK authorities reserve the most severe penalties
for those who are known to be Christian activists or who
contact South Koreans about the possibility of reaching the
South.
A report by the Committee on International Relations found
that, ``North Korean women and girls, particularly those who
have fled into China, are at risk of being kidnapped,
trafficked, and sexually exploited inside China.'' \968\ And
one U.S. NGO representative told an April 2004 Commission
roundtable that, ``Over 50 percent of North Korean women
[migrants] have been subjected to human trafficking, sold as
wives to Chinese farmers, sold as sex slaves to brothels, and
sexually exploited . . . These statistics are now believed to
be much higher, because now it is not just Chinese that are
selling North Korean women and young girls but even desperate
North Koreans are selling their own citizens.'' \969\
Chinese authorities have detained, arrested and imprisoned
aid workers who attempt to assist North Korean refugees. In
December 2003, the Rev. Choi Bong-il was sentenced to nine
years of imprisonment and Mr. Kim Hee-tae to seven. These
sentences are likely the longest that Chinese courts have given
to aid workers for helping North Koreans in China.\970\ The
International Relations Committee report found that the court
proceedings did not comply with Chinese law or international
standards.\971\ In addition, Park Yong-chol, a North Korean,
was arrested in January 2003 for trying to help other North
Koreans leave China by boat. Mr. Park was sentenced to two
years of imprisonment for human trafficking and is incarcerated
in Weifang Prison in Shandong province. Upon release, he faces
deportation to North Korea.\972\ His co-defendant, Choi Yong-
hun, a South Korean, was sentenced to five years of
imprisonment for human trafficking. Choi is also jailed at
Weifang Prison.\973\ South Korean photojournalist Jae Hyun Seok
was also
detained with them and the court gave him a two-year sentence.
Jae was released in March 2004 and deported to South Korea, but
Chinese officials have not dropped the charges against
him.\974\
VIII. Developments During 2004 in Hong Kong
The United States continues to have important interests in
Hong Kong, principally in the areas of trade, investment,
counter-terrorism, law enforcement cooperation, and human rights. The
U.S.-Hong Kong Policy Act of 1992 structures U.S. relations
with the Hong Kong Special Administrative Region (HKSAR).\975\
Americans broadly support the principles of the Sino-U.K. Joint
Declaration and the Basic Law,\976\ and had high hopes that the
central government in Beijing would take steps to give Hong
Kong the ``high degree of autonomy'' promised in the latter.
The United States and China both have an interest in the
success of the ``one country, two systems'' formula articulated
in the Joint Declaration and Basic Law.\977\ In addition, the
United States has long supported a stable, autonomous Hong Kong
with an open society, open markets, and a strong rule of law.
In particular, the U.S. government has supported the provisions
of the Basic Law that provide for universal suffrage for the
people of Hong Kong.\978\
In light of these U.S. interests and policy concerns,
developments in Hong Kong over the past 12 months have been
troubling. Policies announced by the central government and the
Hong Kong SAR government's own priorities seem designed to move
Hong Kong away from the promised ``high degree of autonomy''
and to delay developing the democratic institutions that most
Hong Kong people support. The Hong Kong SAR government's
October 2003 withdrawal of proposed legislation to implement
Article 23 of the Basic Law was an important positive step, but
other developments during the past year have diminished U.S.
hopes that Hong Kong's leaders soon would be elected by
universal suffrage. On April 6, 2004, the National People's
Congress Standing Committee (NPCSC) interpreted the Annexes of
the Basic Law to give itself overarching power to decide
whether or not there is a need to amend, and how to amend,
procedures for selecting the Hong Kong chief executive and
forming the Hong Kong Legislative Council.\979\ On April 26,
2004, the NPCSC exercised this power and issued a decision
dictating that the people of Hong Kong are prohibited from
electing either the chief executive in 2007 or the members of
the Legislative Council in 2008 through universal suffrage, and
mandated that the one-to-one ratio of legislators directly
elected by geographical constituencies to those elected by
professional and business groups shall not change in the 2008
election. The decision added encouragingly that ``the final
goal will surely be reached . . . that the chief executive will
be elected through universal suffrage . . .'' \980\ However,
these recent actions by the central government setting limits
on constitutional development in Hong Kong are inconsistent
with the ``high degree of autonomy'' promised by the central
authorities in the Basic Law and detailed in the Annexes.
A series of incidents in 2004 suggest that some political
forces in mainland China and Hong Kong wish to intimidate
democracy advocates. In mid-spring, PLA Navy vessels sailed
into Hong Kong's main harbor; many democracy activists saw this
show of military force as a Chinese government warning about
excessive zeal for democracy.\981\ In May, several radio talk
show hosts whose programs favored democratic development
resigned suddenly, complaining of threats against them and
their families. And in June, arsonists struck at the office of
outspoken pro-democracy legislator Emily Lau.\982\ Police said
tins of gas and alcohol were used in the blaze and a hate
message saying, ``all traitors must die'' was scrawled on an
outside wall. Although the Hong Kong police warned that
resorting to intimidation or damaging property would be
prosecuted fully,\983\ the attack unsettled democracy
supporters in Hong Kong.
Despite this uncertain environment, however, many in Hong
Kong continue their advocacy of democracy. A poll taken in
January by a group of university researchers found that nearly
80 percent of the Hong Kong populace supports direct
elections.\984\ In January 2004, about 100,000 people marched
to demand universal suffrage and direct election of the chief
executive in 2007 and the Legislative Council in 2008,
conveying the clear message that most people in Hong Kong want
universal suffrage and a democratic political system.\985\ On
July 1, 2004, citizens staged another demonstration in Hong
Kong, taking to the streets to demand greater democracy,
despite the Chinese government having ruled out direct
elections for the territory's next chief executive.\986\
Organizers of the march estimated the crowd at 530,000, while
the Hong Kong police estimates put the attendance figure at
about 200,000.\987\
In September 2004, a record 1.7 million Hong Kong voters
went to the polls to elect 30 of the 60 members of the
Legislative Council directly for the first time. Pro-democracy
reformers won 18 of the directly elected seats and attracted
enough support among deputies representing professional groups
that they now control some 25 seats in the legislature.
Candidates favoring PRC government policies won 12 of the
directly elected seats and now control a total of 34 seats in
the body. An independent holds one seat. Democrats said that
the results demonstrated that Hong Kong people want democracy,
but their opponents argued that the people proved at the polls
that they value stability and harmony first. More broadly, as a
political matter, the Hong Kong SAR government has not made the
case to the central government that Hong Kong would thrive with
a more democratic political system. According to one Hong Kong
expert, ``The government of Hong Kong isn't presenting a more
reasonable view of democracy and why people want it. The
consequence is that the Chinese Government is still hung up on
a very suspicious view of democracy.'' \988\
Chinese government officials have attacked some Hong Kong
democracy advocates on the grounds that they are not
``patriotic.'' \989\ For example, after longtime democracy
advocate and opposition legislator Martin Lee, former leader of
the Democratic Party of Hong Kong, traveled to the United
States to testify before the Senate Foreign Relations
Committee, an angry Chinese government statement labeled him a
traitor.\990\ The same statement admonished the U.S. government
for interfering in internal Chinese affairs. One senior PRC
official quoted the late Deng Xiaoping as saying that ``a
patriot was one who respected his own race,'' and reminded Hong
Kong citizens that, ``We need to respect and love our race,
love our country, and love Hong Kong.'' \991\
The Commission supports the people of Hong Kong and their
continued efforts to preserve their autonomy and the freedoms
that accompany it. The United States strongly supports the
development of democracy in Hong Kong through electoral reform
and universal suffrage. These reforms are essential to Hong Kong's
continuing prosperity and stability within the ``one country,
two systems'' framework.
IX. Appendix: Commission Activities in 2003 and 2004
Hearings
June 3, 2004 15 Years After Tiananmen: Is Democracy in
China's Future?
Randall Schriver,
Deputy Assistant
Secretary of State for
East Asian and Pacific
Affairs, Department of
State
Wang Youcai, Former
Student Leader and
founder of the China
Democracy Party
Lu Jinghua, Former
Worker's Federation
Leader
Andrew J. Nathan,
Professor and Chair of
the Department of
Political Science,
Columbia University
Sharon Hom, Executive
Director, Human Rights
in China, and Professor
of Law Emeritus, City
University of New York
School of Law
September 23, 2004 Hong Kong After the Elections: The Future
of One Country, Two
Systems
Randall Schriver,
Deputy Assistant
Secretary of State for
East Asian and Pacific
Affairs, Department of
State
Michael Davis,
Professor, Notre Dame
Law School
Veron Hung, Associate,
China Program, Carnegie
Endowment for
International Peace
William H. Overholt,
Asia Policy Chair,
Center for Asia and
Pacific Policy, RAND
Corporation
Roundtables
October 20, 2003 China's Mounting HIV/AIDS Crisis: How
Should the United
States Respond?
Amarmath Bhat,
Director, Office of
Asia and the Pacific,
Office of Global Health
Affairs, U.S.
Department of Health
and Human Services
Wan Yanhai, Director,
Beijing Aizhi Education
Institute, and World
Fellow, Yale University
Kevin Robert Frost,
Vice President,
Clinical Research and
Prevention Programs,
American Foundation for
AIDS Research
Philip Nieburg, Senior
Associate, HIV/AIDS
Task Force, Center for
Strategic &
International Studies
October 27, 2003 After the Detention and Death of Sun
Zhigang:
Prisons, Detention, and
Torture in China
James Dulles Seymour,
Senior Research
Scholar, East Asian
Institute, Columbia
University
Murray Scot Tanner,
Senior Political
Scientist, RAND
Corporation
March 19, 2004 Development Projects in Tibetan Areas of
China: Articulating
Clear Goals and
Achieving Sustainable
Results
Daniel Miller,
Agricultural Officer,
U.S. Agency for
International
Development
Melvyn Goldstein, John
Reynold Harkness
Professor of
Anthropology, Case
Western Reserve
University
Arlene M. Samen,
Founder and Executive
Director, One
H.E.A.R.T., and Nurse
Practitioner, Maternal
Fetal Medicine
Division, School of
Medicine, University of
Utah
March 26, 2004 China and U.S. Agriculture: Sanitary and
Phytosanitary
Standards, A Continuing
Barrier to Trade?
Peter Fernandez,
Associate
Administrator, Animal
and Plant Health
Inspection Service,
U.S. Department of
Agriculture
Merlyn Carlson,
Director, Nebraska
Department of
Agriculture
Paul Dickerson, Vice
President, Overseas
Operations, U.S. Wheat
Associates
April 2, 2004 Influencing China's WTO Compliance and
Commercial Legal
Reform: Beyond
Monitoring
Henry Levine, Deputy
Assistant Secretary for
Asia Pacific Policy,
U.S. Department of
Commerce
Linda Wells, Chief
Counsel for Commercial
Law Development, U.S.
Department of Commerce
Leslie Griffin,
Director, Asian
Affairs, U.S. Chamber
of Commerce
April 19, 2004 The Plight of North Korean Migrants in
China: A Current
Assessment
Joel Charny, Vice
President for Policy,
Refugees International
Suzanne Scholte,
President, Defense
Forum Foundation
Kim Sang Hun, Activist
on Behalf of North
Korean Refugees
May 17, 2004 Practicing Islam in Today's China: Differing
Realities for the
Uighurs and the Hui
Jonathan Lipman,
Professor of History,
Mount Holyoke College
Gardner Bovingdon,
Assistant Professor of
Central Eurasian
Studies, Indiana
University at
Bloomington
Kahar Barat, Lecturer,
Department of Near
Eastern Languages and
Civilizations, Yale
University
June 21, 2004 Property Seizure in China: Politics, Law, and
Protest
Sara (Meg) Davis,
Researcher, Asia
Division, Human Rights
Watch
Jacques deLisle,
Professor of Law,
University of
Pennsylvania Law School
Roy Prosterman,
President, Rural
Development Institute
July 12, 2004 Access to Justice in China
Kevin O'Brien,
Professor of Political
Science, University of
California, Berkeley
Benjamin Liebman,
Associate Professor of
Law and Director of the
Center for Chinese
Legal Studies, Columbia
Law School
September 17, 2004 Catholics and Civil Society in China
Janet Carroll M.M.,
Program Associate, U.S.
Catholic China Bureau
Richard Madsen,
Professor of Sociology,
University of
California at San Diego
Web Resources
The Commission maintains a Web site at www.cecc.gov, which
features announcements of upcoming events, topical news items
on issues within the Commission's mandate, transcripts of
hearings and roundtables, and basic source materials on human
rights and the rule of law.
In addition, the Commission launched a new feature in June
2004: the CECC Virtual Academy (www.cecc.gov/virtual Acad/
index.phpd). The Virtual Academy provides users with more
convenient access to a wide array of news, useful Web links,
and information about China prepared by Commission staff and
other
experts. Organized by topic area, the Virtual Academy currently
has information on freedom of expression; commercial rule of
law; criminal justice; labor rights; freedom of religion;
China's Uighur minority; and Tibet. The Virtual Academy also
provides timely summaries of stories from English and Chinese-
language news media on important developments in human rights
and rule of law, updated throughout the day. For those
interested in learning more about China, the Virtual Academy
includes extensive information on China's history, culture, and
government. The Commission hopes over time to attract original
scholarly writing from both U.S. and Chinese sources about
issues relating to China for the Virtual Academy.
X. Endnotes
Voted to approve: Representatives Leach, Dreier, Wolf,
Pitts, Levin, Kaptur, Brown, and Wu; Senators Hagel, Thomas, Roberts,
Smith, Baucus, Levin, Feinstein, and Dorgan; Deputy Secretary Law,
Undersecretaries Dobriansky and Aldonas, and Assistant Secretary Kelly.
Voted not to approve: Senator Brownback.
=For sources cited more than once within a lettered subsection, or,
in the case of Sections II, VI, VII, and VIII, within a numbered
section, full citation format is used in the first citation, and an
abbreviated format is used in subsequent citations. Readers who
encounter a citation in abbreviated format may always find a citation
in full form within that lettered subsection or, for the sections
indicated above, numbered section.
\1\ ``Corrupt Officials' Political Mentality Viewed From Their
Confessions and Proposal,'' People's Daily Online, 5 November 03 (FBIS,
5 November 03).
\2\ See, e.g., Ren Hui-wen, ``New Features of Corruption and New
Anti-Corruption Moves,'' Hsin Pao, 3 October 03 (FBIS, 17 November 03).
\3\ Kang Weiping, ``Top Banker Sentenced to 12 Years in Prison,''
Finance [Caijing], 26 December 03 (FBIS, 5 January 04). See also Han
Qiao, ``Judicial Cadres Protest Against Light Punishment of Wang
Xuebing,'' Cheng Ming, 1 January 04 (FBIS, 1 January 04). Wang Xuebing
had been general manager of the New York branch of the Bank of China
from 1988 to 1993. The Treasury Department's Office of the Controller
of the Currency found that during this time, serious misconduct had
occurred in the branch, for which it assessed a fine of $20 million.
\4\ ``Public Trial of Mai Chongkai, Former President of the High
People's Court of Guangdong Province, Suspected of Taking Bribes,''
Xinhua, 19 December 03 (FBIS, 19 December 03). Mai was ultimately
convicted and sentenced to 15 years for taking more than one million
yuan in return for favoring donors in his judicial work. ``Former
Provincial Court President Sentenced to 15 Years in Prison for
Bribery,'' Xinhua, 24 December 03 (FBIS, 24 December 03).
\5\ ``PRC Court Sentences Former Official to Death with Reprieve
for Taking Bribes,'' Xinhua, 19 November 03 (FBIS, 19 November 03). See
also Guo Nei, ``Further on Ex-Vice-Governor of Anhui Province Sentenced
To Death,'' China Daily, 29 December 03 (FBIS, 30 December 03).
\6\ ``In 2003, China Strictly Administers its Officials, Punishing
One Ranking Official at Provincial-Ministerial Level Every Month,''
People's Daily, 29 December 03 (FBIS, 2 February 04).
\7\ ``Campaign on Corruption Focus of Sessions,'' China Daily, 12
March 04, . An analysis of a survey done by the
China Social Research Institute [Zhongguo shehui diaochasuo] on the eve
of the winter 2004 meetings found that the top three concerns of
respondents in 10 top cities were: jobs, social security, and
corruption, in that order. The percentage wanting stricter punishment
of corruption amounted to 94.7 percent. Yan Xiaohong, ``SSIC Opinion
Research Shows 96.2 Percent of People Are Focusing on the `Two
Meetings;' '' The `Two Meetings' Affect Public Sentiment'' [SSIC minyi
diaocha biaoming 96.2% de gongzhong guanzhu `lianghui;' `lianghui'
qiandong minxin], China Manufacturing Economic News Report [Zhongguo
chanjing xinwenbao], 05 March 04. See also Mark Magnier, ``Chinese
Seize Upon a Chance to Sound Off,'' Los Angeles Times, 4 March 04,
.
\8\ Transparency International, 2004 Global Corruption Report, 25
March 04, 177.
\9\ Wang Yukai, ``Further on How Provincial CPC Committee
Secretaries should be Supervised: Should Supervision be Conducted
Through Systems or Self-Restriction? '' News Weekly [Xinwen zhoukan],
15 September 03 (FBIS, 27 October 03).
\10\ ``2003 Work Report of Auditor General Li Jinhua,'' [Li jinhua
shentao zhengzhuo 2003 niandu shentao gongzuo baogao (chuan wen)],
Xinhua, 23 June 04, .
\11\ ``Top Procurator Focuses on Job-Related Crimes,'' Xinhua, 10
March 04, ; Supreme People's Procuratorate Work
Report, 19 March 04.
\12\ SPP Work Report, March 2004.
\13\ Ibid.
\14\ ``Highlights: PRC Legal, Judicial Developments,'' Foreign
Broadcast Information Service, 26 April 04 (FBIS, 4 May 04).
\15\ Transparency International's Global Corruption Report 2004
notes that one response of the Chinese government to the Olympic
challenge was the passage of the PRC Government Procurement Law,
enacted 1 January 03.
\16\ ``China Uncovers Olympic Corruption,'' BBC News, 24 June 04,
.
\17\ ``China Sports Officials Misuse 2008 Olympics Funds--Report,''
Dow Jones Newswires, 24 June 04, . Much of the
auditing work done in China today is hampered by an inherent lack of
independent authority. For example, Article 109 of the PRC Constitution
states that ``[l]ocal auditing bodies at different levels independently
exercise their power to supervise through auditing in accordance with
law'' but adds that they ``are responsible to the people's government
at the corresponding level . . .'' Interestingly, the Beijing Municipal
Audit Bureau has recently announced its plan to audit nine entities
involved in construction for the Olympics, not as a result of the
National Audit's disclosures, but as part of a ``national
accountability campaign.'' David Fang, ``PRC Government Agencies with
Access to Beijing Olympics Funds To Undergo Audits,'' South China
Morning Post, 07 July 04, . Again, these audits will not
reach the Beijing Olympics Organizing Committee.
\18\ See infra, Fighting Corruption in a One-Party State: Formal
Institutions and Political Controls.
\19\ PRC Constitution, art. 91. See also the PRC Audit Law, enacted
31 August 94, and Temporary Measures for Inspecting the Audit of the
Circumstances of the Implementation of the Central Government Budget
[Zhongyang yusuan zhixing qingkuang jiandu shenji zanxing banfa],
issued 19 July 95.
\20\ Li Jinhua, ``Promoting Auditing Work with the Spirit of
Seeking the Truth and Being Pragmatic,'' Seeking Truth [Qiushi], 01 May
04 (FBIS, 3 June 04). PRC Constitution, arts. 91 and 109; PRC Audit
Law; and Temporary Measures for Audit and Supervision of the
Implementation of the Central Government Budget. The 1982 Constitution
provided for the establishment of auditing bodies at the central and
local levels, and auditing offices have existed since 1983. See infra,
Fighting Corruption in a One-Party State: Formal Institutions and
Political Controls for further discussion of the audit system.
\21\ Zhong Xuebing, ``National Audit Administration Plans for
Reform to Publish Audit Reports on All Projects in the Future--Two
Premiers Both Lay Stress on Audit Work; They Never Delete or Change Any
Parts of Audit Reports,'' China Youth Daily [Zhongguo qingnian bao], 06
July 04 (FBIS, 07 July 04). Not long after this report, however, an
unnamed source in the Audit Office seemed to draw back from the promise
to publish by noting that the Office is part of the government, and
therefore less arms-length than similar reviews in the United States.
Jane Cai, ``State Auditor's Probes to Remain `Family Business,' ''
South China Morning Post, 08 July 04, .
\22\ ``China to Audit More State-Funded Institutions to Curb
Corruption,'' Xinhua, 06 July 04 (FBIS, 07 July 04).
\23\ Joseph Kahn, ``Expose of Peasants' Plight Is Suppressed by
China,'' New York Times, 09 July 04, .
\24\ The Tangshan case has been a topic of frequent bulletins from
Human Rights in China. See, e.g., Human Rights in China Press Release,
``Journalist Pursued for Aiding Peasants,'' 12 July 04, and ``Tangshan
Petitioners Persecuted,'' 2 July 04.
\25\ Zhou Hailiang, ``Do the People's Disasters Become Money Trees
for Local Governments? '' [Baixing huonan chengwei difang zhengfu
yaoqianshu?], People's Daily [Renmin ribao], 2 July 04, .
\26\ Ibid.
\27\ Liu Weifeng, ``7 Provincial Officials May Face Trial for
Alleged Educational Fund Abuse,'' China Daily, 7 July 04 (FBIS 7 July
04).
\28\ Zhang Liwei, ``The Collapse of Zhou Zhengyi's `Shanghai
Empire' '' [Zhou zhengyi `shanghai wangguo' bengta], China Business
Post [Caijing shibao], 7 June 04, .
\29\ Ling Huawei, ``The Rise and Fall of Zhou Zhengyi,'' [Zhou
zhengyi xing shuai], Finance [Caijing], 20 Jun 03,
.
\30\ Human Rights in China Press Release, ``Lawsuit Alleges
Corruption in Shanghai,'' 30 May 03. Their suit was eventually
dismissed, but it may have helped bring Zhou Zhengyi's legal
improprieties to the attention of the authorities.
\31\ Commission Staff Interview.
\32\ Some details about the court's judgment against Zheng are
included in Human Rights in China Press Release, ``HRIC's Statement on
the Conviction of Zheng Enchong,'' 5 November 03. Although Zheng had
copied the information in the fax from a Xinhua report, the procuracy
charged him with ``illegally obtaining state secrets'' and transmitting
them to foreigners. The procurator offered as proof the fact that the
report was part of a Xinhua product called Selected Internal Briefing,
and Zheng had himself described the information as such by writing on
the fax: ``Xinhua News Agency, Internal Draft.'' However, as noted in
an opinion submitted to the court by the defense team, a regulation
issued jointly by the Ministry of Public Security and the Bureau of
State Secrets in 1995 provides for a clear distinction between matters
relating to police work that are ``internal'' and those that qualify as
state secrets. Regulation on the Specific Scope of Public Security Work
in State Secrets and Secrets Classification [Gongan gongzuo zhong
guojia mimi ji qi miji juti fanwei de guiding], issued 20 February 95,
art. 3.
\33\ Regulation on the Specific Scope of Public Security Work in
State Secrets and Secrets Classification, art. 6.
\34\ Measures for Supervisory Organs' Work in Receiving Reports
[Jiancha jiguan jubao gongzuo banfa], issued 28 March 03.
\35\ Measures for Supervisory Organs' Work in Receiving Reports,
art. 20 (3).
\36\ Supervision scholar Li Yongzhong discussed the shuanggui
system in an interview in ``Two Summons: A Special Organizational
Procedure and Investigative Tool'' [Shuanggui: teshu de zuzhi cuoshi he
diaocha shouduan], China News Net [Zhongguo xinwen wang], 19 October
03, . See also the Notice issued by the General
Office of the Central Disciplinary Inspection Commission on the
Temporary Measures on the Method for Disciplinary Inspection Organs to
Use the `Two Summons,' [Zhongyang jiwei bangongting guanyu yinfa
`Guanyu jiwei jiguan shiyong `lianggui' cuoshi de banfa (shixing)' de
tongzhi], issued 20 January 00.
\37\ Temporary Measures on the Method for Disciplinary Inspection
Organs to Use the ``Two Summons,'' art. 7.
\38\ Chinese Communist Party's Inner-Party Supervision Regulations
[Zhongguo gongchandang dangnei jiandu tiaoli (shixing)], issued 17
February 04, art. 34.
Notes to Section III(a)--Rights of Criminal Suspects and Defendants
\39\ Josephine Ma, ``Falun Gong Still Biggest Threat, Says
Minister,'' South China Morning Post, 03 August 04 (FBIS, 3 August 04)
(citing Central Party School article which identified ``rapid increase
in crime'' as a major threat to social stability). See also Randall
Peerenboom, ``Out of the Frying Pan and into the Fire: Well-Intentioned
but Misguided Recommendations to Eliminate All Forms of Administrative
Detention in China,'' 98 Northwest University Law Review 991, 1049
(2003). For examples of reports on rising crime rates in 2003, see Chow
Chungyan, ``Guangdong Blames Crime Surge on Migrants,'' South China
Morning Post, 22 July 04 (FBIS, 22 July 04); Leu Siew Ying, ``Extra
Police for Crime-hit Guangzhou,'' South China Morning Post, 9 September
03 (FBIS, 9 September 03); ``Official Crime Rate Still High in China,''
Xinhua, 22 December 03 (FBIS, 22 Dec 03); Chow Chungyan, ``More Police
Promised As Crime Rate Soars 57 percent in Shenzhen,'' South China
Morning Post, 14 January 04 (FBIS, 14 January 04); Leu Siew Ying,
``Guangzhou Police Rue Passive Role on Migrants,'' South China Morning
Post, 8 October 04, ; Shi Jiangtao, ``Rethink Police
Vagrancy Powers,'' South China Morning Post, 13 January 04 (FBIS, 13
January 04); Josephine Ma, ``Falun Gong Still Biggest Threat, Says
Minister,'' South China Morning Post, 03 August 04 (FBIS, 3 August 04).
\40\ See, e.g., Zhu Daqiang, ``China Goes All Out to Safeguard
Social Stability,'' Zhongguo Xinwen She, 24 December 03 (FBIS, 24
December 03)(noting that a recent execution had ``demonstrated China's
determination to intensify the `Strike Hard' campaign''); ``Chinese
Courts to Go on `Striking Hard' Serious Crimes,'' Xinhua, 10 March 04
(FBIS, 10 March 04)(claiming that ``Chinese courts in 2004 will adhere
to the principle of `striking hard,''); and Zhang Qizhi and Shen Lutao,
``At National Conference on Work of Comprehensive Management of Public
Security, Luo Gan Stresses: Do an Earnest Job in Work of Investigating,
Ascertaining, and Handling Contradictions and Disputes and Create a
Harmonious and Stable Social Environment for Reform and Development,''
Xinhua, 12 June 04 (FBIS, 12 June 04)(citing Zhou Yongkang, Minister of
Public Security, as urging departments to implement the ``strike hard''
principle).
\41\ Susan Trevaskes, ``Courts on the Campaign Path in China:
Criminal Court Work in the `Yanda 2001' Anti-Crime Campaign,'' 42 Asian
Survey 673-93 (September/October 2002); Craig S. Smith, ``Chinese Fight
Crime With Torture and Executions,'' New York Times, 9 September 01,
.
\42\ An August 2003 article in the People's Daily argues that that
the leadership should transform ``strike hard'' from a periodic
campaign into a continuously applicable general principle, suggesting
that this change is intentional. Du Yonghao, ``Strike Hard Should
Embody the Sprit of Rule of Law'' [Yanda geng ying tixian fazhi
jingsheng], People's Daily [Renmin ribao], 25 August 03,
. See also, Yu Bin, ``New Arrangements for Public
Security Prevention and Control,'' Outlook [Liaowang], 9 February 04
(FBIS, 18 February 04).
\43\ For examples of references to localized or periodic
crackdowns, see Zhang Changfeng, ``Public Security Work Should Adhere
to the Guiding Ideology of `Waging an Active War,' '' Security Studies
[Gongan yanjiu], 10 December 2003 (FBIS, 9 October 03); Zheng Caixiong,
``Guangdong Solves Thousands of Crimes,'' China Daily, 29 March 04,
; ``China Set to Crack Down on Muslim
Northwest,'' Reuters, 24 September 03.
\44\ Shi Jiangtao, ``Legal Scholars Have Diverse Interpretations of
Figures,'' South China Morning Post, 11 March 04 (FBIS, 11 March 04).
According to Xinhua, Minister of Public Security Zhou Yongkang ordered
police to stop using arrest quotas in July 2003. ``Zhou Yongkang Tells
Police to End Arrest Quotas, Shed Business Interests,'' Xinhua, 31 July
03 (FBIS, 31 July 03).
\45\ According to public security officials in one major city,
recent increases in the number of vagrants and beggars on the streets
have led to public complaints that police are not doing their jobs
effectively. Commission Staff Interview. The number of indigents
increased following the repeal of a controversial form of
administrative detention called custody and repatriation that police
had often employed to detain such individuals. [See infra, Arbitrary
Detention--Repeal of the Custody and Repatriation System]. In Beijing,
66 percent of respondents in an online survey expressed dissatisfaction
with police, while only 2 percent approved of the work of judicial
departments. ``Poll Shows Overwhelming Numbers of Beijingers
`Dissatisfied' with Government,'' Agence France-Presse, 21 November 03
(FBIS, 21 November 03). Reactions to several notable cases illustrate
the level of public frustration with law enforcement.
In November 2003, five officials were sacked for
negligence after police in Henan finally caught a serial killer who had
kidnapped and tortured 17 high school students over the course of three
years. Reports that police had ignored pleas from parents about their
missing children for two years sparked public outrage, and more than
40,000 citizens reportedly gathered outside of the courthouse on the
day of the alleged killer's trial. ``Five Officials Punished for
Negligence in Serial Murder Case,'' Xinhua, 29 November 03 (FBIS, 29
November 03); Irene Wang, ``Trial of Suspected Serial Killer to
Begin,'' South China Morning Post, 9 December 03, ; ``Up
to 50,000 Gather Outside Court for Trial of Chinese Serial Killer,''
Agence France-Presse, 9 December 03 (FBIS, 9 December 03).
In late 2003, authorities reopened the case of a Harbin
woman who was given a suspended sentence for ``accidental traffic
disturbance'' after she hit and killed a farmer's wife. Witnesses
reported that the woman became enraged after her BMW was damaged by the
farmer's cart. The light sentence fueled a storm of public anger and
rumors that the woman had an influential husband who had secured
lenient treatment for her. Jim Yardley, ``Chinese Go Online in Search
of Justice Against Elite Class,'' New York Times, 16 January 04,
. In March 2004, a local court upheld the sentence.
Irene Wang, `` `BMW Incident' Sentence Upheld,'' South China Morning
Post, 29 March 04, .
In July 2004, more than 15,000 Qingdao residents
reportedly surrounded a people's court to protest the lenient treatment
of a provincial official's son in a murder case. Hai Feng, ``More than
10,000 People Surround Qingdao City People's Court,'' Cheng Ming, 16
July 04 (FBIS, 11 August 04).
\46\ In the fall of 2003, a Shenyang court commuted the death
sentence of notorious mafia boss Liu Yong after finding that the
confession of a key government witness had been coerced. In response to
a flood of public outrage over the decision, the Supreme People's Court
retried the case and reinstated the death sentence, which was carried
out immediately. Legal scholars lamented that the case had ``set reform
of the criminal justice system back 10 years.'' John Pomfret,
``Execution Reveals Party's Grip on China,'' Washington Post, 23
December 03, ; Yan Xizao, ``Investigation Vital
To Rebuild Confidence,'' China Daily, 22 December 03,
.
\47\ Trevaskes, ``Courts on the Campaign Path in China,'' 673-93;
Peerenboom, ``Out of the Frying Pan and into the Fire,'' 1049.
\48\ Trevaskes, ``Courts on the Campaign Path in China,'' 687-90.
Chinese scholars who have studied past campaigns conclude that they
have had little impact on crime rates. Craig S. Smith, ``China's
Efforts Against Crime Make No Dent,'' New York Times, 26 December 01,
.
\49\ For an interesting domestic discussion of the problems faced
by public security and concerns about the deteriorating relationship
between law enforcement agencies and the public, see Yu Bin, ``New
Arrangements for Public Security Prevention and Control.''
\50\ Supreme People's Court Work Report, 19 March 04.
\51\ Supreme People's Procuratorate Work Report, 19 March 04.
According to the report, 18,515 ``major'' cases of corruption,
embezzlement, and bribery were investigated in 2003. 9,720
administrative law enforcement and judicial personnel and 14,844
employees of state-owned enterprises were investigated for corruption.
1,408 state employees were investigated for abuses of power such as
torture, illegal extended detention, and interfering in elections, and
7,160 state employees were investigated for dereliction of duty and
abuse of power that resulted in safety related incidents.
\52\ SPC Work Report, March 2004.
\53\ ``Serious Crimes in China in 2003 Are Down Compared to Last
Year [2003 nian zhongguo yanzhong xingshi fanzui anjian bi qiannian
yousuo jianshao],'' Xinhua, 23 February 04, ;
``Corruption, Bribery Cases Drop 2.2 Percent Over 2003,'' People's
Daily [Renmin ribao], 8 January 04, .
\54\ ``Dismal Record of China's Police Force Made Public,'' Agence
France-Presse, 12 June 04 (FBIS, 12 June 04). The official blamed poor
investigation work, rising crime rates, official corruption, and new
restraints on police as factors.
\55\ PRC Constitution, art. 35.
\56\ Crimes of endangering state (or national) security are found
in the PRC Criminal Law, enacted 1 July 79, amended 14 March 97, 25
December 99, 31 August 01, 29 December 01, and 28 December 02, arts.
102-113. The most notable are Article 105, which prohibits organizing,
plotting, or carrying out a scheme to subvert state power or overthrow
the socialist system or inciting others to do the same, and Article
103, which prohibits organizing, plotting, or carrying out a scheme to
split the state or undermine the unity of the country or inciting
others to do the same.
\57\ A recent article published by the Central Party School
reportedly ranked Falun Gong, ethnic, and religious activities ahead of
terrorism and the rapid increase in crime as threats to social
stability. Josephine Ma, ``Falun Gong Still Biggest Threat, Says
Minister.''
\58\ PRC Criminal Law. Articles 101-113 deal with ``endangering
state security.''
\59\ Ibid., art. 105.
\60\ Ibid., art. 103.
\61\ Jilin Province, Changchun City Intermediate People's Court,
Criminal Judgment in the Case of Luo Yongzhong, 14 October 03 (on file
with the Commission).
\62\ PRC Criminal Law, art. 13.
\63\ Wang Youcai, a founding member of the China Democracy Party,
was serving a 12-year sentence for ``endangering state security.'' He
was released on medical parole and flown to the United States in March
2004. Phuntsog Nyidron, one of the ``singing nuns of Lhasa,'' was
serving a sentence for ``counterrevolutionary propaganda and
incitement.'' She was released on medical parole and flown to the
United States in February 2004. Liu Di, the ``stainless steel mouse,''
had been held in detention for more than one year in connection with a
series of Internet essays she had written. In November 2003,
prosecutors ordered her released on the grounds of insufficient
evidence for prosecution.
\64\ See infra, Arbitrary Detention: Disappearances, Security
Sweeps, and House Arrests.
\65\ Commission Staff Correspondence. For the estimate of one such
analyst, see After the Detention and Death of Sun Zhigang: Prisons and
Detention in China, Staff Roundtable of the Congressional-Executive
Commission on China, 27 October 03, Testimony of James Dulles Seymour,
Senior Research Scholar, East Asia Institute, Columbia University. Note
that this estimate is highly qualified by a variety of unknowns and
uncertainties.
\66\ For the removal of the crime of counterrevolution from the PRC
Criminal Code, see Lawyers Committee for Human Rights, Wrongs and
Rights: A Human Rights Analysis of China's Revised Criminal Law,
December 1998, 2930, 41-45.
\67\ Commission Staff Interview.
\68\ Supreme People's Court, Notice on ``Regulations on Certain
Concrete Practical Questions Related to Sentence Reduction and
Parole,'' [Zuigao renmin fayuan yinfa ``Guanyu banli jianxing, jiajie
anjian juti yingyong falu ruogan wenti de guiding'' de tongzhi], issued
29 October 97. Under the 1997 Notice, sentence reduction and parole for
all cases involving crimes of ``endangering state security'' are to be
``strictly handled.'' Although the notice superceded a 1991 SPC notice
that required sentence reduction and parole for crimes of
``counterrevolution'' to be ``strictly handled,'' the SPC argues that
because the crime of endangering state security is equivalent to the
crime of counterrevolution, the new notice should continue to apply to
individuals serving sentences for counterrevolution. Commission Staff
Interviews.
\69\ The corollary to this argument is that the SPC notice on
``strictly handling'' sentence reduction and parole for crimes of
endangering state security should not be applied to prisoners convicted
of a crime that no longer exists.
\70\ Commission Staff Interviews.
\71\ United Nations Commissioner for Human Rights, Fact Sheet #26,
The Working Group on Arbitrary Detention, . The Working Group's mandate ``extends to deprivation of
freedom either before, during or after the trial (a term of
imprisonment imposed following conviction), as well as deprivation of
freedom in the absence of any kind of trial (administrative detention).
The Group also regards as forms of detention measures of house arrest
and rehabilitation through labor, when they are accompanied by serious
restrictions on liberty of movement.''
\72\ International Covenant on Civil and Political Rights, arts.
9(3) and 9(4).
\73\ Philip P. Pan, ``China Gives Prison Term To Dissident Based in
U.S.,'' Washington Post, 14 May 04, . For a
discussion of Yang's pre-trial detention, see Congressional-Executive
Commission on China, 2003 Annual Report, October 2003, 17.
\74\ Congressional-Executive Commission on China, Zhang Jianzhong
Case Update, March 2004, ; Congressional Executive
Commission on China, Defense Lawyers Turned Defendants, Zhang Jianzhong
and the Criminal Prosecution of Defense Lawyers in China, 27 May 03.
\75\ ``Recently Released PRC Dissident Liu Di Told Not the Meet
With Foreign Journalists,'' Agence France-Presse, 1 December 03 (FBIS,
1 December 03); ``Held for Over a Year, Procuratorate Rejects Public
Security Bureau Position for Lack of Evidence,'' World Journal [Shijie
ribao], 7 November 03, .
\76\ Chinese official sources define ``illegal extended detention''
as the detention of criminal suspects and defendants by law enforcement
agencies or courts beyond domestic statutory time limits for handling
criminal cases.
\77\ ``China's Public Prosecutors Crack Down on Illegal Prolonged
Detention,'' Xinhua, 22 July 03 (FBIS, 22 July 03); Zhu Daqiang ``China
Moves Against Extended Detention,'' China News Agency [Zhongguo xinwen
she], 3 August 03 (FBIS, 3 August 03).
\78\ Supreme People's Court, Supreme People's Procuratorate, and
Ministry of Public Security, Notice on Strictly Enforcing the Criminal
Procedure Law and Rectifying Extended Detention in Practice [Zuigao
renmin fayuan, zuigao renmin jianchayuan, gonganbu guanyu yange zhixing
xingshi susongfa, qieshi jiufang chaoqi jiya de tongzhi], issued 11
November 03. Supreme People's Court, Notice on Issues Related to
Clearing Cases of Extended Detention [Zuigao renmin fayuan guanyu
qingli chaoqi jiya anjian youguan wenti de tongzhi], issued 29 July 03.
Authorities publicly expressed frustration with the persistence of the
extended detention problem, which they blamed on lack of legal
consciousness on the part of police, prosecutors, and judges. Cui
Zhenping, ``Two Yuan Jointly Answer Reporters Questions on the `Notice
on Rectifying Extended Detention,' '' [Liang yuan yibu jiu `jiufang
chaoqi jiya tongzhi' da jizhe wen], People's Court Daily [Fayuan
ribao], 12 November 03.
\79\ Among other things, the Notice prohibits manipulating criminal
provisions on ``supplementary investigation'' and withdrawals of
prosecution or jurisdiction transfers to extend detention in
``disguised form,'' calls on law enforcement organs to make full use of
provisions on bail and residential surveillance where time limits for
detention have expired by investigation or adjudication is incomplete,
and stresses that defendants must be released if a crime cannot be
proven or a judgment cannot be reached within the legal time limits.
Note, however, that investigators and courts may apply to the SPC or
SPP for an ``interpretation'' of the Notice in complex or foreign-
related cases or cases involving the crime of endangering state
security.
\80\ The man, a farmer from Guangxi, had initially been detained in
1974 on suspicion that he possessed an ``enemy'' leaflet. ``Chinese
Peasant Detained Without Charges for 28 Years,'' Agence France-Presse,
26 June 03 (FBIS, 26 June 03), citing Southern Weekend [Nanfang
zhoumo]. A public security investigation found 64 cases involving
extended custody that exceeded three years. ``All of the Extended
Custody Cases in the Public Security System Rectified in 2003'' [2003
nian gongan xitong suoyou chaoqi jiya anjian quanbu dedao jiuzheng],
Xinhua, 20 January 04, .
\81\ SPC Work Report, March 2004; SPP Work Report, March 2004. The
SPP reported that it had handled 25,181 cases of extended detention.
The SPC reported that it had handled 4,100 cases of extended detention
involving 7,658 individuals. It is possible that there is some overlap
between the cases handled by the SPC and the SPP. The SPC claimed that
a few cases of extended detention remained unresolved for ``legal
reasons.'' A January report in Xinhua suggested that there were still
91 outstanding cases. ``Except for 91 Cases, All Cases of Extended
Detention Have Been Cleared Up,'' [Chu 91 jian anjian wai, quanguo
suoyou chaoqi jiya anjian ruqi xingli wanbi], Xinhua, 1 January 04,
.
\82\ SPC Work Report, March 2004; SPP Work Report, March 2004.
\83\ Commission Staff Interview.
\84\ Commission Staff Interviews. See also ``China Rounds Up
Disgruntled Petitioners, Herds Them to Gym and Stadium,'' Agence
France-Presse, 9 March 04 (FBIS, 9 March 04); Human Rights in China
Press Release, ``Dissidents Detained and Beaten as NPC Opens,'' 5 March
04; Josephine Ma, ``Petitioners Rounded Up in Police Raids,'' South
China Morning Post, 11 March 04, .
\85\ Joe McDonald, ``China Mobilizes to Silence Dissent,''
Associated Press, 11 March 04; Ralph Jennings, ``PRC Police Block
National Complaint Office,'' Kyodo World News Service, 10 March 04
(FBIS, 10 March 04).
\86\ Matt Pottinger, ``Petitioning Beijing,'' Wall Street Journal,
10 September 04, A11; Human Rights in China Press Release, ``Massive
Crackdown on Petitioners in Beijing,'' 8 September 04.
\87\ For an overview of Jiang's activities, see ``SARS
Whistleblower Urges Reassessment of Tiananmen Massacre,'' South China
Morning Post, 8 March 04, . His letter urging an official
reassessment of the verdict on the Tiananmen demonstrations is
available at . Jiang and his wife went missing on June 1.
Chan Siusin, ``Joint Appeal for Doctor's Release,'' South China Morning
Post, 11 June 04, . His wife was released on June 16 and
Jiang was released in late July. According to Commission sources, Jiang
was taken by public security to an undisclosed location for
``discussions'' regarding his June 4 activism.
\88\ Ralph Jennings, ``China Police Lodge Troublemakers at Resorts
to Foil Protests,'' Kyodo World Service, 11 March 04 (FBIS, 11 March
04); Human Rights in China Press Release, ``Mass House Arrests Before
June 4,'' 28 May 04; Audra Ang, ``Dissidents Detained as Tiananmen
Anniversary Approaches,'' South China Morning Post, 28 May 04;
``Leading AIDS Activist and Tiananmen Dissident Roughed Up by Chinese
Police,'' Agence France-Presse, 2 June 04 (FBIS, 2 June 04). Some
dissidents were instructed to leave Beijing or their home cities,
prevented from moving freely, or otherwise harassed.
\89\ Jonathan Hecht, ``Reforming Re-education Through Labor,''
October 2003 (draft manuscript on file with the Commission); Veron Mei-
ying Hung, ``Improving Human Rights in China: Should Re-Education
Through Labor Be Abolished,'' 41 Columbia Journal of Transnational Law
303 (2003). But see Peerenboom, ``Out of the Frying Pan and into the
Fire,'' 1010-1046 (note that Peerenboom disputes the basis for these
contentions and argues that in many cases, RETL detainees would be
worse off in the formal criminal justice system). Although re-education
through labor subjects in theory have the legal right to request
judicial review of their detention by a people's court under the PRC
Administrative Litigation Law, such review rarely takes place in
practice. Hung, ``Improving Human Rights in China,'' 317-23.
\90\ Hecht, ``Reforming Re-education Through Labor.''
\91\ After the Detention and Death of Sun Zhigang, Written
Statement of James D. Seymour, Senior Research Scholar, Weatherhead
East Asian Institute, Columbia University; Hecht, ``Reforming Re-
education Through Labor''; Hung, ``Improving Human Rights in China,''
303; Peerenboom, ``Out of the Frying Pan and into the Fire,'' 999.
\92\ Hecht, ``Reforming Re-education Through Labor.'' For an
excellent study on the growing number of social protests in China, see
Murray Scott Tanner, ``China Rethinks Unrest,'' 27 Washington Quarterly
137 (2004).
\93\ Commission Staff Interview.
\94\ Philip Pan, ``Easing of Penal System Part of Change in
China,'' Washington Post, 18 January 04, .
According to one government source cited by Pan, a subcommittee on
reforming RETL suspended its work after the government's campaign
against Falun Gong was launched in 1999.
\95\ Hecht, ``Reforming Re-education Through Labor.''
\96\ In the fall of 2003, six members of the Guangdong CPPCC
Provincial Committee reportedly submitted a proposal questioning the
legality of the RETL system and calling for it to be abolished in
Guangdong. Guo Guosong, ``Members of the CPPCC Guangdong Provincial
Committee Point Out that the Country's Re-education Through Labor
System Lacks Legal Basis,'' Southern Weekend [Nanfang zhoumo], 4
September 03 (FBIS, 8 September 03). According to one Commission
source, legal scholars filed a petition with the NPC Standing Committee
last year arguing that regulations on RETL should be repealed as
unconstitutional. Reportedly, the NPC Standing Committee denied the
petition and authorities barred the Chinese media from reporting on it.
In another instance, the South China Morning Post reported that
dissident Li Guotao was detained in September 2004, prior to the Party
Central Committee meeting in Beijing, for organizing a petition drive
calling for the abolition of RETL. Bill Savadove, ``Petition Sees
Dissident Put Under House Arrest,'' South China Morning Post, 14
September 04, . For RETL reform discussions, see also
``Several Problems in the Reform of Judicial Administration'' [Sifa
xingzheng gaige de ruogan falu wenti], Legal Daily [Fazhi ribao], 12
August 04, .
\97\ See, e.g., ``Husbands and Wives of Laojiao Detainees Can Enjoy
the Pleasure of Being Fish in Water,'' [Laojiaosuo nei fuqi ke
xiangyushuihuan], Southern Metropolitan Daily [Nanfang dushibao], 22
October 03, ; Liang Jie, ``Preliminary Results
Achieved in Special Work for Re-education Through Labor'' [Laojiao you
tese gongzuo chujian chengxiao], Guangming Daily [Guangming ribao], 17
November 03, ; ``Beijing Public Security Organs Hold
the Country's First Public Question and Answer for a Re-Education
through Labor Subject'' [Beijing gonganju zai guonei shouci duini
laojiaoren juxing gongkai lingxun], Xinhua, 5 September 03,
. In August 2003, the Ministry of Public
Security issued regulations reforming the procedures for handling RETL
and other administrative detention cases. Regulations on Procedures for
Public Security Handling of Administrative Cases [Gongan jiguan banli
xingzheng anjian chengxu guiding], issued 26 August 03, art. 26.
\98\ ``Standardizing the Re-Education Through Labor System: The NPC
Drafts a New Law'' [Guifan laojiaozhi: renda qicao xinfa], World
Journal [Shijie ribao], 9 March 04, ; ``The Re-
Education Through Labor System Is to Be Transformed in a Major Way''
[Laojiao zhidu jiang zuo zhongda biange], Southern Metropolitan Daily
[Nanfang dushibao], 8 March 04, .
\99\ Pan, ``Easing of Penal System Part of Change in China.''
\100\ According to both mainland Chinese and Hong Kong reports, the
Internal and Judicial Affairs Committee of the NPC is considering a new
``Law on Security Administration Publishments'' to replace the 1987
Security Administration Punishment Regulations. ``China is Mulling Over
the Abolition of Re-education Through Labor,'' Tai Yang Pao, 29 July 04
(FBIS, 30 July 04); Li Yan, ``Security Punishments Expected to Abolish
Re-education Through Labor,'' [Zhian chufa youwan quxiao laojiao],
Southern Metropolitan Daily [Nanfang dushibao], 28 July 04,
. The State Administration Punishment
Regulations permit authorities to detain individuals for up to 15 days
for a wide variety of minor public order offenses. PRC Security
Administration Punishment Regulations [Zhian guanli chufa tiaoli],
issued 5 September 86. Some violators may be subject to RETL under the
regulations and local rules for repeat offenders.
\101\ Enshrining RETL in a national statute, as opposed to an
administrative regulation, would undermine the arguments that the
domestic legal basis for RETL is flawed. At least one Western China
scholar argues that calls for repeal are misguided. Peerenboom, ``Out
of the Frying Pan and into the Fire,'' 991. Others note that if the new
law provides RETL detainees with rights to judicial review, legal
representation, and other protections that are in theory afforded to
criminal defendants, it would still be a significant positive step.
Commission Staff Interview.
\102\ CECC, 2003 Annual Report, Section III(a).
\103\ Commission Staff Interview.
\104\ Human Rights in China, Forced Psychiatric Treatment
Threatened for AIDS Activist Hu Jia, 9 June 04; Chan Siusin, ``Activist
Fears Being Put in Mental Home,'' South China Morning Post, 11 June 04,
.
\105\ See CECC, 2003 Annual Report, Sections III(e) and V(e), for a
discussion of custody and repatriation and the reasons for its repeal.
\106\ Approximately 80 percent of the aid centers are converted C&R
centers, while 20 percent are newly constructed. In several large
cities such as Shanghai and Chengdu, civil affairs departments have
established a network of small feeder centers in the city center and
larger facilities on the city outskirts. The feeder centers accept aid
recipients and transfer them to the larger centers if they want to
receive housing and aid there. Commission Staff Interviews.
\107\ Pan Congwu, ``Four Big Problems Vexing Aid Stations'' [Si da
nanti kunrao jiuzhuzhan], China Legal Publicity [Zhongguo pufa wang],
18 August 04, . For increases in indigent
populations, see also Li Xueju (Minister of Foreign Affairs), ``New
Social Relief System To Emphasize Voluntary Acceptance of Assistance,
Put Equal Stress on Aid and Management,'' Seeking Truth [Qiushi], 1
April 04 (FBIS, 15 April 04); Pan Haixia, ``Beggars Can't be Choosers
of Shelters,'' China Daily, 12 January 04, ;
Josephine Ma, ``Beijing Ponders How to Tackle Surge in Beggars,'' South
China Morning Post, 9 October 03, ; Shi Jiangtao,
``Rethink Police Vagrancy Powers.'' Some civil affairs officials
complain that one of the biggest problems with the new aid system is
that of repeat and ineligible visitors and acknowledge the growing
number of indigents. Commission Staff Interviews. For a contrary view
on the new aid measures, see American Federation of Labor and Congress
of Industrial Organization, Section 301 Petition before the United
States Trade Representative, 34.
\108\ Li Xueju, ``New Social Relief System To Emphasize Voluntary
Acceptance of Assistance, Put Equal Stress on Aid and Management''; Leu
Siew Ying, ``Guangzhou Police Rue Passive Role on Migrants''; Shi
Jiangtao, ``Rethink Police Vagrancy Powers.'' According to officials in
some Chinese cities, the begging problem has become so pervasive that
the public is criticizing police and aid centers for failing to do
their jobs. Commission Staff Interview; Pan Congwu, ``Four Big Problems
Vexing Aid Stations.'' Although some Chinese newspapers expressed
concern about a backlash and the possibility that C&R would be re-
instituted in a different form, Chinese scholars and officials
expressed confidence that the old system of coercive repatriation would
not be re-instated. Commission Staff Interviews.
\109\ Public security officials in at least one major Chinese city
told Commission staff that even unregistered migrant laborers are
largely being left alone unless they commit crimes. Commission Staff
Interview.
\110\ PRC Criminal Law, arts. 247-248; PRC Criminal Procedure Law,
enacted 1 July 79, amended 17 March 96, art. 43.
\111\ According to Murray Scot Tanner, an American political
scientist who tracks domestic reporting and debate on public security
and in particular on the issue of torture, torture is a problem that
``even many [Chinese] law enforcement officials concede is pervasive.''
After the Detention and Death of Sun Zhigang: Prisons and Detention in
China, CECC Roundtable, Testimony and Written Statement of Murray Scot
Tanner. One recent Procuratorial Daily article, while noting that only
a ``minority'' of investigators participate in torture, nonetheless
called it a ``chronic disease'' that elicited ``serious negative
reaction from the populace.'' Fu Kuanzhi, ``The Three Factors That Must
be Present to End the Extortion of Confessions Through Torture'' [Jujue
xingxun bigong xu jubei san ge yinsu], Procuratorial Daily [Jiancha
ribao], 11 August 04, .
\112\ See, e.g., Cheng Honggen, ``Former Deputy Director of a Sub-
bureau Under the Hebei City Public Security Bureau Gets a 13-Year Jail
Term on Charges of Torturing and Causing the Death of a Person,''
Xinhua, 16 May 04 (FBIS, 17 May 04); ``A Wenzhou `Criminal Sentenced to
Death' Who Sat in Jail For Eight Years Wants State Compensation''
[Wenzhou yi ``sixingfan'' chuzuo ba nian dajian tichu yao guojia
peichang], Xinhua, 14 April 03, ; ``Chongqing
Resident Obtains 130,000 in State Compensation for Wrongful Murder
Judgment and Seven Years in Prison'' [Chongqing yi shimin bei cuopan
sharenzui fuxing qi nian huo guojia peichang shisanwan], Procuratorial
Daily [Jiancha ribao], 10 November 03, ; Irene Wang,
``Police Officers Jailed Over Torture Deaths,'' South China Morning
Post, 17 December 03, (citing a story in a Shenyang
paper describing the death of two detainees); Chen Lei, ``Dialing 110
Unexpectedly Invites Fatal Accident; Bengbu's Barbarous Patrolmen
Publicly Beat to Death Man Making Police Report,'' China News Service,
29 August 03 (FBIS, 29 August 03); Chen Hong, ``Police, Prosecutors
Have Image Problem,'' China Daily, 22 July 04, .
\113\ See, e.g., ``Chinese Police Officer Gets Death for Killing,
Secretly Burying Detainee,'' Agence France-Presse, 26 June 04 (FBIS, 26
June 04); Wang Chien-min, ``Reflecting on Prisoner Abuse by US Forces,
Beijing Will Strictly Investigate Savage Torture,'' Asia Weekly [Yazhou
zhoukan], 30 May 04 (FBIS, 20 May 04); Chan Siu-sin, ``Injured Man's
Family Seeks Payout,'' South China Morning Post, 21 November 03,
; ``Deceased Tibetan Monk Leaves Letter Detailing
`Torture' by Chinese Jailers,'' Agence France-Presse, 7 October 03
(FBIS, 7 October 03); Chi Shuo-ming, ``Case Outside Disputed Case of
British Espionage Involving Xinhua News Agency,'' Asia Weekly [Yazhou
zhoukan], 30 May 04 (FBIS, 28 May 04); Amnesty International, Executed
According to Law--The Death Penalty in China, 17 March 04; Irene Wang,
``New Twist in Convicted Killers' Fight for Justice,'' South China
Morning Post, 7 August 04, . Falun Gong affiliates
actively report on alleged cases of torture. See, e.g., ``62 Cases of
Falun Gong Practitioners Killed from Torture, Abuse Reported in April
and May 2004,'' Falun Dafa Information Center, 9 June 04,
; ``Death of 25 Falun Gong Practitioners Verified in
March,'' Falun Dafa Information Center, 20 April 04,
; ``30 Torture and Severe Abuse-Related Deaths of
Falun Gong Practitioners Reported in February,'' Falun Dafa Information
Center, 25 March 04, ; ``64 Falun Gong Deaths from
Torture in China Reported in Three Months,'' Falun Dafa Information
Center, 12 February 04, .
\114\ Ibid. For an alleged castration case, see Chan Siu-sin,
``Injured Man's Family Seeks Payout,'' South China Morning Post, 21
November 03, .
\115\ ``Violations of Law by Administrative Law Enforcement
Officials Result in More Than 650 Million Yuan in Losses and 460
Deaths'' [Xingzheng zhifa renyuan fanzui zaocheng sunshi 6.5 yi duo
yuan siwang 460 ren], Xinhua, 10 October 03, .
\116\ Chan Siusin, ``Authorities Responsible for 4,000 Cases of
Abuse,'' South China Morning Post, 27 May 04, .
\117\ Commission Staff Interview.
\118\ See infra, Reform Initiatives and Public Discussion of the
Criminal Justice System.
\119\ Chen Honggen, ``Former Deputy Director of a Sub-bureau'';
``Guangdong Baishi Police Substation Ordered to Pay 56,000 Yuan in
Compensation for Extorting a Confession from Art Student Through
Torture'' [Guangdong baishi paichusuo xingxun bigong yixiao xuesheng
bei panpei 5.6 wan yuan], Information Times [Xinxi shibao], 15 November
03, reprinted in .
\120\ Murray Scot Tanner, ``Shackling the Coercive State: China's
Ambivalent Struggle Against Torture,'' Problems of Post-Communism XV,
No. 5 (September/ October 2000), 13-30. After the Detention and Death
of Sun Zhigang, Testimony and Written Statement of Murray Scot Tanner;
Commission Staff Interview.
\121\ Regulations on Procedures for Public Security Handling of
Administrative Cases [Gongan jiguan banli xingzheng anjian chengxu
guiding], issued 26 August 03, art. 26. Local governments also
announced new measures against torture.
\122\ Article 26, clause 2 of the new regulation states, ``It shall
be strictly forbidden to extort confessions by torture and to collect
evidence by threat, enticement, deceit, or other unlawful means.
Evidence obtained through unlawful measures may not be taken as the
basis for determining a case.''
\123\ Supreme People's Court, Interpretation on Several Issues
Regarding Implementation of the PRC Criminal Procedure Law [Zuigao
renmin fayuan guanyu zhixing zhonghua renmin gongheguo xingshi susongfa
ruogan wenti de jieshi], issued 29 June 98.
\124\ Provisions on Application of Continuing Interrogations by
Public Security Organs [Gongan jiguan shiyong jixu panwen guiding],
issued 12 July 04. For a description of the new regulations, see Xin
Wen, ``The Ministry of Public Security Promulgates `Provision on the
Application of Continuing Interrogations by Public Security Agencies,''
Ministry of Public Security, 3 August 04 (FBIS, 11 August 04); and
Zhang Weina, ``If a Person Being Interrogated Commits Suicide the
People's Police Officer Directly Responsible Must Be Dismissed'' [Bei
panwenren zisha yao kaichu zhijie zeren minjing], China Court Net
[Zhongguo fayuan wang], 4 August 04, .
\125\ Provisions on Application of Continuing Interrogations by
Public Security Organs, art. 39.
\126\ See, e.g., ``Zhejiang: Public Security Officers Who Extort
Confessions Through Torture in Handling Cases to be Dismissed Without
Exception'' [Zhejiang: Gongan minjing zai ban'an guocheng zhong xingxun
bigongzhe yi lu kaichu], Xinhua, 22 September 03, .
\127\ Yan Yang, ``Why It Is So Difficult to Convict Someone for
Extorting Confessions Through Torture,'' [Xingxun bigong weihe nanyi
xingzui], Legal Daily [Fazhi ribao], 23 October 03, . A similar discussion based on comments by Chinese
judges and scholars may be found in Wang Chien-min, ``Reflecting on
Prisoner Abuse by US Forces.'' One Chinese scholar quoted in this
article refers to the ``stinking bean curd'' theory of torture that is
prevalent in Chinese judicial circles. This type of bean curd ``stinks
but tastes good when you eat it.'' Law enforcement officials may view
torture as unseemly, but they find it useful and like the results.
\128\ Yan Yang, ``Why It Is So Difficult to Convict Someone for
Extorting Confessions Through Torture.''
\129\ Fu Kuanzhi, ``The Three Factors That Must be Present to End
the Extortion of Confessions Through Torture.''
\130\ After the Detention and Death of Sun Zhigang, Testimony and
Written Statement of Murray Scot Tanner.
\131\ ``China Lets UN Rights Expert Visit Detention Centers,'' Wall
Street Journal, 31 March 04, .
\132\ ``UN Rights Expert's Visit Postponed,'' Xinhua, 16 June 04
(FBIS, 16 June 04).
\133\ ``Shanghai Seeks to Curb Illegal Organ Trade,'' South China
Morning Post, 17 January 2004, .
\134\ ``Gansu Prisoners on Death Row Forced to `Donate' Organs,''
Tai Yang Pao, 24 September 03 (FBIS, 24 September 03) (citing the
Lanzhou Morning News). The Dunhuang case is significant as a judicial
recognition of rules relating to organ harvesting. In 1984, the Chinese
government issued the ``Temporary Rules Concerning the Utilization of
Corpses of Organs from the Corpses of Executed Prisoners.'' These
regulations provided for the use of organs of executed criminals if no
one claims the corpse, the family consents to the use of the corpse, or
the executed criminal voluntarily donates his organs, but stipulated
that, ``Where the executed criminal has volunteered to have his corpse
provided to a medical treatment unit for use, there should be a formal
written certificate or record signed by the criminal and deposited at
the people's court where it can be inspected.'' Temporary Rules
Concerning the Utilization of Corpses of Organs from the Corpses of
Executed Prisoners [Guanyu liyong sixing zuifan shiti huo shiti qiguan
de zanxing guiding], issued 9 October 84, clause 3.
\135\ ``Law Urged on Organ Transplant,'' China Net [Zhongguo wang],
15 November 03, ; ``Shanghai Seeks to Curb Illegal
Organ Trade,'' South China Morning Post, 17 January 04, .
\136\ ``Shenzhen: First Domestic Regulations Passed on the Donation
and Transplantation of Human Organs'' [Shenzhen: Guonei shoubu renti
ziguan sunxian yizhi tiaoli huo tongguo], People's Daily [Renmin
ribao], 22 September 03, .
\137\ PRC Criminal Procedure Law, art. 33.
\138\ PRC Criminal Procedure Law, art. 34; Regulations on Legal Aid
[Falu yuanzhu tiaoli], issued 16 July 03, art. 12.
\139\ PRC Criminal Procedure Law, art. 34; Regulations on Legal
Aid, chapter 2.
\140\ In 2002, 180,000 out of a total 600,000 applicants for all
types of cases were granted legal aid. Yan Ting, ``New Regulation
Standardizes Legal Aid,'' South China Morning Post, 1 August 03,
. According to official statistics, courts appointed
counsel for 77,199 criminal defendants in 2003 (11,864 blind, deaf, or
mute defendants, 28,868 minor defendants, 24,052 defendants facing the
death penalty, and 12,415 other defendants). Legal aid organizations
approved applications for an additional 8,991 criminal defendants.
Ministry of Justice Legal Aid Center, 2003 Annual Report on Legal Aid
Work [2003 Falu yuanzhu gongzuo nianbao], January 2004, 25. The total
number of legal aid applications for 2003 is not available. However,
official statistics indicate that courts nationwide imposed sentences
on 933,967 criminal defendants in 2003. SPC Work Report, March 2004.
For a detailed description of legal aid in China, see Section V(c)--
Access to Justice and Legal Aid.
\141\ The Legal Daily, a newspaper published by the Ministry of
Justice, reported in January 2003 that the percentage of criminal
defendants represented by counsel dropped from 40 percent in 1996 to 30
percent in 2001. Cha Qingjiu, ``Lawyers Turn Pale at the Mention of
Defending Criminal Suspects--Worries Arising from the Decreasing
Percentages of Criminal Cases with Defense Lawyers [Lushi tan xingbian
er sebian, xingshi anjian bianhu lu xiajiang zhi you],'' Legal Daily
[Fazhi ribao], 13 January 03, . A professor at
the National Judicial College confirms that in many courts, fewer than
30 percent of criminal defendants are represented by counsel. Wang Jin,
``Are Defense Lawyers Able to Enjoy `Special Rights,' '' [Xingshi lushi
nengfou hengshou `tequan'] Beijing Youth Daily [Beijing qingnianbao],
22 May 01. Surprisingly, the percentage of criminal defendants
represented by counsel dropped between 1996 and 2002, even as the
number of attorneys in China increased by over 20 percent.
\142\ Commission Staff Interviews; Wang Jin, ``Are Defense Lawyers
Able to Enjoy `Special Rights' '' (noting that in some areas, the
percentage of defendants represented by counsel is as low as 10
percent). According to Minister of Justice Zhang Fusen, 206 counties in
China do not have a single lawyer at all. Li Weiwei, ``206 Counties in
My Country Do Not Have a Single Lawyer'' [Wo guo 206 ge xian meiyou
yiming lushi], Xinhua, 23 March 04, . At a recent
national meeting of Chinese justice officials, one commentator
identified lack of access to lawyers in rural and minority areas as an
especially pressing problem. ``Several Problems in the Reform of
Judicial Administration,'' Legal Daily.
\143\ PRC Criminal Procedure Law, arts. 36, 47, 96
\144\ See CECC, 2003 Annual Report, Section III(a)--Criminal
Justice, Access to Counsel; CECC, 2002 Annual Report, Criminal Justice.
\145\ In the case of dissident Yang Jianli, for example, Chinese
officials refused his lawyer's repeated requests to meet with him until
July 2003, a year and a half after his detention. Yang Jianli, Closing
Statement in Court, 4 August 03 (on file with the Commission). Alleged
spy Chen Yulin was reportedly held for nearly one year before being
permitted to meet with his lawyer. Chi Shuoming, ``Case Outside
Disputed Case of British Espionage Involving Xinhua News Agency,'' Asia
Weekly [Yazhou zhoukan], 30 May 04 (FBIS, 28 May 04). When suspects are
permitted to meet with a lawyer, their conversations are often
monitored and recorded by authorities.
\146\ Commission Staff Interviews. In the Yang Jianli case, Yang
was only permitted to meet with his defense attorneys three times, and
each of these meetings was recorded. Prosecutors had nearly a year and
a half to prepare their case against Yang. Yang Jianli, Closing
Statement in Court, 4 August 03 (on file with the Commission).
\147\ See, e.g., ``Several Problems in the Reform of Judicial
Administration,'' Legal Daily; ``New Rules Enshrine Rights of Lawyers
in Criminal Cases,'' Xinhua, 4 March 04 (FBIS, 5 March 04); ``Chinese
Procuratorate Moves to Protect the Rights of the Accused,'' Xinhua, 11
March 04 (FBIS, 11 March 04).
\148\ Commission Staff Interviews.
\149\ Commission Staff Interviews; Ping Yu, ``Glittery Promise vs.
Dismal Reality: The Rule of a Criminal Defense Lawyer in The People's
Republic of China After the 1996 Revision of the Criminal Procedure
Law,'' 35 Vanderbilt Journal of Transnational Law 827 (2002).
\150\ CECC, Zhang Jianzhong Case Update.
\151\ CECC, Defense Lawyers Turned Defendants, Zhang Jianzhong and
the Criminal Prosecution of Defense Lawyers in China.
\152\ Xiao Yang, ``Scrapping Article 306 Would Make Law Fairer,''
China Daily, 12 April 04. Chinese judicial officials also publicly
acknowledged the problem in August 2004. ``Several Problems in the
Reform of Judicial Administration,'' Legal Daily.
\153\ Provisions on People's Procuratorates Safeguarding Lawyers
Carrying Out Professional Work According to Law During the Criminal
Process [Guanyu renmin jianchayuan baozhang lushi zai xingshi susong
zhong yifa zhiye de guiding], issued 30 December 03.
\154\ For example, the new provisions require prosecutors to inform
defense attorneys when a suspect has been detained and of the place of
detention, and to ``arrange'' a meeting between lawyers and clients
within 48 hours of a request by either party.
\155\ Xiao Yang, ``Scrapping Article 306 Would Make Law Fairer'';
``New Rules Enshrine Rights of Lawyers in Criminal Cases,'' Xinhua;
``Chinese Procuratorate Moves to Protect the Rights of the Accused,''
Xinhua; ``Several Problems in the Reform of Judicial Administration,''
Legal Daily.
\156\ See, e.g., Xiao Yang, ``Scrapping Article 306 Would Make Law
Fairer.''
\157\ Prosecutors conduct initial investigations in only a limited
number of cases. This function is usually carried out by public
security. The Ministry of Public Security is reportedly drafting a
similar set of regulations, but it is unclear when these regulations
will be released. ``China in Need of More Good Lawyers,'' Xinhua, 23
March 04 (FBIS, 23 March 04). Several attorneys complained that the
regulations have had no impact in practice.
\158\ For example, prosecutors undermine the spirit of the
provision on client access by concluding ``arrangements'' for a client
meeting within 48 hours but setting the actual date for meetings much
later. Chinese attorneys suggested to Commission staff that the
regulations have not yet had a meaningful impact in practice.
Commission Staff Interviews.
\159\ In 2003, Chinese courts imposed sentences on 933,967 criminal
defendants and declared 4,835 defendants not guilty. SPC Work Report,
March 2004. A conviction rate of 99 percent raises obvious questions
about the fairness of criminal trials. High conviction rates are not
uncommon in other parts of Asia. For example, police in Japan report
very few suspects who are not convictable, and about 99 percent of
those who are prosecuted are convicted. However, defendants in Japan
are treated with extraordinary leniency. According to one expert,
defendants are often punished with only minor fines, and courts suspend
criminal sentences in almost 50 percent of cases. John Owen Haley,
Authority Without Power, Law and the Japanese Paradox (Oxford: Oxford
University Press, 1991), 125-33, 135-38, reprinted in John Henry
Merryman, David S. Clark, John Owen Haley, eds. The Civil Law Tradition
(Charlotesville: Michie, 1994), 1119-21.
\160\ Shi Jiangtao, ``Legal Scholars Have Diverse Interpretations
of Figures.'' One particularly egregious example of the presumption of
guilt was described in the Beijing Youth Daily. A criminal named Wang
Youen was tried and retried a total of four times for murder. At his
third trial, the judge was reported to have asked, ``What evidence do
you have that you didn't commit the murder? '' Six years after he was
first detained, Wang was finally exonerated by the Heilongjiang High
People's Court. Amnesty International, Executed According to Law,
(citing ``Condemned Prisoner wins 140,000 in compensation,'' Beijing
Youth Daily, 28 April 02).
\161\ In 2000, for example, people's courts of first instance
nationwide handled a total of 560,111 criminal cases, while courts of
second instance handled 86,619 cases (giving a rough appeal rate of
approximately 15 percent). 2001 China Law Yearbook [2001 Zhongguo falu
nianjian], (Beijing: Legal Press, 2001), 1256, 1258. In 2001, people's
courts of first instance nationwide handled a total of 623,792 criminal
cases, while courts of second instance handled 98,157 cases (also a
rough appeal rate of approximately 15 percent). 2002 China Law Yearbook
[2002 Zhongguo falu nianjian], (Beijing: Legal Press, 2002), 1,238 and
1,240. These figures provide only a rough estimate of the rate of
defendant appeals. Not all of the second instance cases handled in a
year correspond to first instance cases handled that same year.
Moreover, in China, prosecutors have the right to appeal a verdict of
not guilty. Chinese law also permits ``private prosecutions'' in some
cases and allows private prosecutors to appeal not guilty verdicts. PRC
Criminal Procedure Law, arts. 180-1. Overall, the SPC places the rate
of appeal in China at about 12 percent for all cases (civil, criminal,
and administrative). ``Chinese Grassroots Courts Adjudicate 5.2 Million
Cases Each Year,'' Xinhua, 6 July 04 (FBIS, 6 July 04). In December
2003, dissident Yang Jianli declined to exercise his right to appeal,
arguing in a written statement that the process was a sham. ``U.S.-
Based Dissident Yang Refuses to Appeal Sentence for Espionage
Charges,'' Agence France-Presse, 25 May 04 (FBIS, 25 May 04). In
February 2004, serial killer Yang Xinhai waived his right to appeal
after an hour-long trial, despite the fact that he had been sentenced
to death. ``Death for China's Serial Killer,'' BBC News, 2 February 04,
.
\162\ PRC Criminal Procedure Law, arts. 181, 203-207. Although
decisions by appeals courts are supposed to be ``final,'' provisions on
``adjudication supervision'' in the Criminal Procedure Law require
people's courts to retry cases when prosecutors find a ``definite error
in a legally effective judgment or order'' and protest to the court. In
fact, China's State Compensation Law creates a perverse incentive for
prosecutors to continue appealing, as a verdict of not guilty may
subject them to criminal compensation liability for wrongful arrest and
prosecution. State Compensation Law, adopted 12 May 94, art. 15.
Chinese scholars have noted this unintended effect of the State
Compensation Law. De Hengbei, ``An Analysis of Basic Concepts in the
Controversy over Seeking the Criminal Liability of Lawyers.''
\163\ There are numerous examples of trials in sensitive or complex
cases that lasted only hours or a day, including those of Internet
dissident Du Daobin (20 minutes), serial killer Yang Xinhai (one hour),
democracy activist He Depu (two hours), entrepreneur Sun Dawu (six
hours), Zhang Jianzhong (one day), dissident Yang Jianli (one day), and
resident activist and advocate Zheng Enchong (one day). While the
length of a trial alone cannot be taken as the sole indicator of
fairness, such short trials in key cases, when considered along with
the many other problems and statistics raised in this section, suggest
that trials are little more than a formality.
\164\ Under Article 152 of the Criminal Procedure Law, all criminal
cases of first instance, except those involving ``state secrets,'' the
``private affairs of individuals,'' or minors, are required to be held
in public. If a case is not to be held in public, the court must
announce the specific reason at the proceeding. Authorities sometimes
restrict access to trials not falling within such exceptions. For
example, the trials of Zhang Jianzhong and the officials charged with
dereliction of duty in the death of Sun Zhigang were restricted,
despite the fact that these cases did not involve state secrets.
\165\ Human Rights in China Press Release, ``Internet Activist Du
Daobin Goes to Trial,'' 17 May 04.
\166\ Ibid.
\167\ Shi Jiangtao, ``Legal Scholars Have Diverse Interpretations
of Figures.''
\168\ City of Beijing, Bureau of National Security Opinion
Recommending Prosecution, 4 June 03; Defense Statement in Trial of
First Instance of Yang Jianli, 4 August 03 (on file with the
Commission).
\169\ Shanghai No. 2 Intermediate Court, Criminal Judgment in the
Case of Zheng Enchong, 28 October 03; Defense Statement in Trial of
First Instance of Zheng Enchong, 28 August 03 (on file with the
Commission).
\170\ Shao's conviction appears to have been based primarily on a
Judicial Accounting Audit commissioned by public security, Shao's
alleged confession, and the statements of other witnesses, including
two import agents who themselves were implicated in the case. Both Shao
and a panel of legal experts have raised compelling questions about the
reliability of the Judicial Accounting Audit. Shao denies confessing to
any crimes, and the police interrogation record produced at trial
reportedly contained no record of his confession. Police have refused
to release the original interrogation records. According to the trial
court judgment, several witnesses who were also charged with crimes and
who implicated Shao were given lenient treatment for their cooperation.
Shao maintains that he was prosecuted because he refused to pay bribes
to local tax auditors. An extensive collection of documents relevant to
the case, including the indictment and the trial court judgment, is on
file with the Commission.
\171\ Under Article 46 of the Criminal Procedure Law, ``Confession
by the defendant only, without other evidence, cannot be used to
determine that the defendant is guilty and to make any sentencing.''
\172\ See, e.g., ``A Wenzhou `Criminal Sentenced to Death' Who Sat
in Jail For Eight Years Wants State Compensation,'' Xinhua. In the
Wenzhou case, Dong Wenlie was sentenced to death for drug crimes. He
reportedly confessed after two days of torture. No witnesses appeared
at his trial and no documentary evidence of his crimes was submitted to
the court. See also, ``Chongqing Resident Obtains 130,000 in State
Compensation for Wrongful Murder Judgment and Seven Years in Prison,''
[Chongqing yi shimin bei cuopan sharenzui fuxing qi nian huo guojia
peichang shisanwan], Procuratorial Daily [Jiancha ribao], 10 November
03, (citing the case of Dong Liming, who was
convicted for murder and sentenced to death on questionable evidence
and confessions that were later withdrawn), and Pan, ``Easing of Penal
System Part of Change in China'' (citing the case of Li Ping, a migrant
worker convicted of murder and sentenced to death on the basis of a
confession obtained through torture and later released by authorities);
Irene Wang, ``New Twist in Convicted Killers' Fight for Justice,''
South China Morning Post, 7 August 04, .
\173\ Peerenboom, ``Out of the Frying Pan and into the Fire,''
1,034.
\174\ CECC, 2003 Annual Report, Section V(e).
\175\ One Chinese legal scholar recently decried the influence of
Political-Legal Committees on the judiciary. ``Scholar Accuses
Political-Legal Committees of Obstructing the Independence of the
Judiciary--The Courts Sink to the Level of `Prisoners' and
Constitutional Violations Should be Eliminated,'' Ming Pao, 30 July 03
(FBIS, 30 July 03).
\176\ John Pomfret, ``Child's Death Highlights Problems in Criminal
Justice,'' Washington Post, 3 July 03, .
\177\ John Pomfret, ``Execution Reveals Party's Grip on China,''
Washington Post, 23 December 03, .
\178\ PRC Criminal Law. Yang Shilong, ``How Much Longer Until China
Abolishes the Death Penalty'' [Zhongguo li feichu sixing haiyou duo
yuan?], Huanqiu [Globe], 1 June 04 (an interview with scholar Liu
Renwen). According to one recent NGO report, there is some disagreement
among scholars on the exact number of capital offenses in China.
Amnesty International, Executed According to Law, 10. The majority of
offenses for which individuals may be subject to the death penalty are
non-violent economic offenses. ``Is There a Limit to Deterrence of
Corruption? Experts Say We Can Consider Abolishing the Death Penalty
for Economic Crimes,'' [Fubai weishe you xian? Zhuanjia cheng ke kaocha
feizhi jingji fanqui sixing], China News Net [Zhongguo xinwen wang], 10
August 04, .
\179\ Amendment III to the PRC Criminal Procedure Law, adopted 29
December 01. Supreme People's Court, Supreme People's Procuratorate,
Interpretation on Several Questions Related to Specific Law to Be
Applied in Handling Criminal Cases Involving the Illegal Production,
Sale, Transport, and Storage of Strong Rat Poison and Other Prohibited
Deadly Chemicals [Zuigao renmin fayuan, zuigao renmin jianchayuan,
guanyu banli feifa zhizao, maimai, yunshu, chucun dushuqian deng jinyun
judu yuaxueping xingshi anjian juti yingyong falu ruogan wenti de
jieshi], issued 29 August 03. Supreme People's Court, Supreme People's
Procuratorate, Interpretation on Certain Problems of Concretely
Applying the Law in Handling Criminal Cases Involving Impairment of the
Prevention or Control of Outbreaks of Contagious Diseases and Epidemics
and Other Disasters [Zuigao renmin fayuan, zuigao renmin jianchayuan
guanyu banli fanghai, kongzhi tufa zhuanranbing yiqing deng zaihai de
xingshi anjian juti yingyong falu ruogan wenti de jieshi], issued 13
May 03.
\180\ Yang Shilong, ``How Much Longer Until China Abolishes the
Death Penalty''; Guo Guangdong, ``The Death Penalty: Keep It or Abolish
It? '' [Sixing: Baoliu? Feichu?], People's Daily [Renmin ribao], 10
January 03.
\181\ Peerenboom, ``Out of the Frying Pan and into the Fire,'' 1050
(citing various polls taken between 1995 and 2001 indicating public
support for heavy punishments and the death penalty). In December 2002,
one scholar tracked messages posted to an Internet chat room in
response to media stories about a scholarly conference on the death
penalty. According to the scholar, more than 80 percent of the
respondents supported the death penalty, while 76 percent called for
the number of capital crimes to be increased. Reportedly, only 13
percent of the submissions favored abolishing capital punishment.
``Death Row Lawyer Heads China's Execution Debate,'' Reuters, 4
February 02, . The strong public outcry in response
to the decision by a Shenyang court to change the death sentence of
mafia boss Liu Yong also suggests strong support for capital
punishment. See supra, China's ``Strike Hard'' Anti-Crime Campaign and
the accompanying note on the Liu Yong case. For one recent article that
reflects mainstream views on the efficacy on the death penalty, see
``Death Sentences in Major Corruption Cases Terrify Corrupt
Individuals'' [Jutan bei pan sixing ran fubazhe danzhanxinjing], Legal
Evening News [Fazhi wanbao], 26 August 04. In August 2004, Reuters
reported that more than 50 individuals in Xinjiang were executed as
part of a government crackdown on separatists and alleged terrorists.
John Ruwitch, ``China Convicts 50 to Death in `Terror Crackdown,' '' 13
September 04. Chinese scholar Liu Renwen contends that public support
of the death penalty is problematic, however. If the public were
informed about the number of executions and wrongful judgments
involving death sentences, experts were allowed to discuss materials
and problems related to the death penalty openly, and the public was
not constantly bombarded with propaganda about the positive impact of
the death penalty, he argues, the public would likely have a different
view. Yang Shilong, ``How Much Longer Until China Abolishes the Death
Penalty.''
\182\ ``Is There a Limit to Deterrence of Corruption? Experts Say
We Can Consider Abolishing the Death Penalty for Economic Crimes,''
China News Net. Even senior Chinese officials who oppose abolition of
the death penalty now acknowledge that the trend is for capital
punishment to be phased out. Commission Staff Interview.
\183\ ``PRC Foreign Ministry Spokesman Defends Keeping PRC
Execution Statistics Secret,'' Agence France-Presse, 5 February 04
(FBIS, 5 February 04).
\184\ Amnesty International, Executed According to Law, 1.
\185\ Huang Yong, ``Forty-One National People's Congress Deputies
Submit a Joint Proposal Calling on the Supreme People's Court To
Reclaim the Power To Examine and Approve Death Sentences'' [41 daibiao
lianming jianyi zuigao renmin fayuan shouhui sixing hezhunquan], China
Youth Daily [Zhongguo qingnianbao], 12 March 04. According to the
report, the NPC delegate also stated that China executes five times the
total in all other countries combined each year.
\186\ It is possible that the delegate could have been referring to
cases in which death sentences were handed down as opposed to cases in
which death sentences were actually carried out. Some death sentences
are suspended for two years or commuted to life imprisonment.
\187\ John Kamm of the Dui Hua Foundation estimated in 2003 that
there are at least 10,000 executions in China each year. Disidai [The
Fourth Generation], a book purportedly written by an internal Chinese
government source, cites a Party dossier on Luo Gan as indicating that
15,000 people a year were executed between 1998 and 2002. Andrew Nathan
and Bruce Gilley, China's New Rulers: The Secret Files, NYREV, Inc.,
2003.
\188\ Benjamin Kang Lim, ``China Security Czar Orders Fewer
Executions,'' Reuters, 9 March 04. Luo is reported to have issued a
directive stating that ``If it's possible to execute fewer people, then
execute fewer people'' and ``If it's possible not to execute people,
then don't execute people.'' One Chinese expert confirms that while
this is the policy on paper, it is not concrete enough to affect
practice, particularly in the context of the leadership's ``strike
hard'' effort.
\189\ Yang Shilong, ``How Much Longer Until China Abolishes the
Death Penalty.''
\190\ Congressional-Executive Commission on China, The Execution of
Lobsang Dondrub and the Case Against Tenzin Deleg: The Law, the Courts,
and the Debate on Legality, 10 February 03, 5-10.
\191\ SPC Work Report, March 2004. According to the work report, of
300 cases involving the review of death sentences, the original
sentence was sustained in 182 cases, the sentence was changed in 94
cases, and 24 cases were remanded to lower level courts for retrial.
One Chinese scholar reports that the annual rate of reversal for death
sentences reviewed by the SPC fluctuates between 20 percent and 29
percent. Yang Shilong, ``How Much Longer Until China Abolishes the
Death Penalty'' (citing Liu Renwen as putting the range from 20 to 29
percent). See also, Pan, ``Easing of Penal System Part of Change in
China'' (citing Chen Xinliang as placing the rate between 25 percent
and 30 percent).
\192\ Yang Shilong, ``How Much Longer Until China Abolishes the
Death Penalty''; Pan, ``Easing of Penal System Part of Change in
China.''
\193\ Huang Yong, ``Forty-One National People's Congress Deputies
Submit a Joint Proposal,'' ``Response to the Delegates' Motion to Take
Back the Power to Approve Death Sentences: The Supreme People's Court
is Considering Establishing Branch Chambers to Review Death Sentences''
[Huiying daibiao shouhui sixing yian: zuigao renmin fayuan kaocha
shefenyuan zhuanhe sixing], Southern Metropolitan Daily [Nanfang
dushibao], 12 March 04, . There is some debate
as to whether the SPC can do this unilaterally or whether the NPC
Standing Committee must approve the change. ``Who Should Determine
Whether to Recall the Power of Death Penalty Review'' [Shouhui sixing
hezhunquan ying shui shuo le suan], Procuratorial Daily [Jiacha ribao],
17 March 04, . A senior judicial official interviewed
by Commission staff indicated that the NPC would have to resolve the
issue. Commission Staff Interview.
\194\ Response to the Delegates' Motion to Take Back the Power to
Approve Death Sentences,'' Southern Metropolitan Daily; Pan, ``Easing
of Penal System Part of Change in China.''
\195\ A People's Court Daily article listed ``benefits to China's
international human rights struggle'' as one of the four principal
reasons the SPC is considering the move to take back review of death
sentences. Wang Lianying, ``Give the Power to Review and Approve Death
Sentences Back to the Supreme People's Court'' [Jiang sixing anjian
hezhunquan shougui zuigao fayuan], People's Court Daily [Renmin
fayuanbao], 12 March 04. This and other reform proposals were announced
shortly before the UN Human Rights Commission met in Geneva in April
2004.
\196\ See, e.g., Chow Chung-yan, ``Mainland Police Vow to Open Up
to Media,'' South China Morning Post, 3 January 04; Liu Renwen,
``Social Order Information Disclosure System: Public's Right to Know
About Situation,'' Study Times, 19 January 04 (FBIS, 23 January 04);
Sun Chingwen, ``Academics Expect CPC Central Committee to Institute
Spokesman System,'' Ta Kung Pao, 12 October 03 (FBIS, 13 October 03);
``Supreme People's Procuratorate Sets Up Spokesman System for Quarterly
News Briefings,'' Xinhua, 23 July 03 (FBIS, 23 July 03); Li Xu,
``Beijing Municipal Procuratorate Unveils `Extended Custody Reporting
Telephone Hotline,' '' Xinhua, 2 August 03 (FBIS, 2 August 03);
``China's Supreme Peope's Procuratorate Establishes Hotlines to Hear
Human Rights Complaints,'' Xinhua, 27 June 04 (FBIS, 27 June 04).
\197\ Under the program, citizen supervisors participate in the
investigation of cases involving procuratorial misconduct, review case
files and charging decisions upon the request of a defendant, submit
opinions on the handling of cases, and appeal to higher level
procuratorial organs in cases of concern. Wu Huanqing, ``3000 Citizen
Supervisors Begin Work in 10 Provinces'' [3000 ming renmin jianduyuan
10 sheng shanggang], Xinhua, 30 October 03; ``200 Cases Are Subjected
to Monitoring Procedure by People's Monitors'' [Erbai yu anjian jinru
renmin jianduyuan jiandu chengxu], Guangming Daily [Guangming ribao],
12 December 03, . In March 2004, the SPP reported that
a total of 4,944 citizen supervisors had handled nearly 500 cases. SPP
Work Report, March 2004. One leading defense lawyer critical of other
reform efforts expressed optimism about the citizen supervisor program.
Commission Staff Interview.
\198\ Regulations on Disciplinary Measures for Prosecutors
[Jianchayuan jilu chufen tiaoli], issued 21 June 04. For a brief
introduction to the measures, see ``Disciplinary Punishment Rules for
Prosecutors,'' Xinhua, 13 August 04, (FBIS, 13 August 04).
\199\ In the summer of 2003, Minister of Public Security Zhou
Yongkang launched a campaign to address a backlog of citizen complaints
about public security organs and to investigate the ``seven major
problems in public security.'' ``The Ministry of Public Security Will
Concentrate on Settling the Backlog of Seven Major Complaints About
Public Security'' [Gonganbu jiang jizhong qingli fanying gongan zi da
wenti de jubao jiyajian,'' Xinhua, 13 August 03, .
According to official reports, public security organs at all levels
dispatched more than 20,000 inspection teams to root out abuses.
``China Sacks 387 Policemen for Misconduct in 2003,'' Xinhua, 15
January 04 (FBIS, 15 January 04).
\200\ ``China Sacks 387 Policemen for Misconduct in 2003''; Chow
Chungyan, ``Thousands of Rogue Police Officers Sacked,'' South China
Morning Post, 8 January 04, ; ``PRC State Councilor Zhou
Yongkong Calls For Police Force,'' Xinhua, 9 April 04 (FBIS, 9 April
04).
\201\ ``China Punishes 972 Court Staff for Violating Discipline,
Law,'' Xinhua, 15 December 03 (FBIS, 15 December 03).
\202\ New initiatives announced include work release programs,
legal aid for prisoners, degree equivalency and other professional
training, limited remuneration for prison laborers, spousal visits,
societal rehabilitation programs, and programs to improve production
safety for prison laborers. ``In Jail But Helped by Society,'' Xinhua,
28 December 04 (FBIS, 28 December 04); Verna Yu, ``Extension of
Community Service Scheme Applauded,'' South China Morning Post, 30 July
04 (FBIS, 30 July 04); ``China Holds First Seminar On Protecting
Prisoners' Rights,'' Xinhua, 10 September 03 (FBIS, 10 September 03);
``China Pays Salary to Prisoners at Labor Camp,'' Xinhua, 25 September
04, (FBIS, 25 September 04); Alice Yan, ``Prison Initiative Gives Ex-
Convicts a Helping Hand in Finding Work,'' South China Morning Post, 27
January 04, ; ``Work of the Ministry of Justice Unit on
Prison Production Safety'' [Sifabu bushu jianyu anquan shengchan
gongzuo], Legal Daily [Fazhi ribao], 18 February 04,
; ``Legal Assistance Provided to Prisoners in
Beijing,'' Xinhua, 19 March 04 (FBIS, 19 March 04); ``Convict
`Hearings' Come to China's Prisons'' [Fanren ``tingzhenghui'' zoujin
zhongguo jianyu], Procuratorial Daily [Jiancha ribao], 30 March 04,
.
\203\ ``China's Top Judicial Body Sets Timetable for Curbing Prison
Irregularities,'' Xinhua, 24 May 04 (FBIS, 24 May 04), ``Addressing
Concerns on Treatment of Prisoners,'' China Daily, 19 May 04 (FBIS, 19
May 04). In June 2004, the SPC announced a nationwide review of parole
and sentence reduction decisions
\204\ Sun Haifeng, ``National Procuratorial Investigation Reveals:
13, 961 Sentence Reductions Illegal'' [Quanguo jiancha jiguan qingcha
faxian: 13,961 ren jianxing shuyu weifa], Xinhua, 10 September 04. The
authors note that problem illegal sentence reductions has been a major
flashpoint for public anger.
\205\ Chan Siusin, ``Authorities Responsible for 4,000 Cases of
Abuse,'' South China Morning Post, 27 May 04, ;
``Protecting Human Rights,'' China Daily, 1 July 04,
.
\206\ ``China in Need of More Good Lawyers,'' Xinhua, 23 March 04
(FBIS, 23 March 04).
\207\ Commission Staff Interviews. For an example of some of the
broad ranging changes to the Criminal Procedure Law that have been
proposed by one Chinese legal scholar, see Yan Xianghua, Han Hongxing,
``The Time is Already Ripe for Another Revision to the Criminal
Procedure Law'' [Xingshi susongfa zai xiugai shiji yijing chengshu],
Procuratorial Daily [Jiancha ribao], 17 December 03, .
\208\ In April 2004, a university graduate named Sun Zhigang was
mistakenly detained by police in Guangzhou and beaten to death while in
custody. The case sparked a national outcry and forced the government
to repeal a controversial form of administrative detention called
custody and repatriation that had been applied in Sun's case. CECC,
2003 Annual Report, Sections III(a) and V(e). In July 2003, a three-
year old girl named Li Siyi died of thirst or starvation when public
security officials sent her mother to a drug detoxification center and
ignored the mother's pleas that her daughter was home alone. Pomfret,
``Child's Death Highlights Problems in Chinese Justice.'' The story
caused public outrage when it broke. In the wake of the Sun Zhigang and
Li Siyi cases, stories of law enforcement abuses and public criticism
of authorities proliferated in domestic Chinese media and in Internet
chatrooms. Commission Staff Monitoring. In mid-2003, as the law
enforcement public relations campaign was launched, Minister of Public
Security Zhou Yongkang admonished police officers nationwide to
``resolutely stop malignant violations that offend the heavens and
reason and stir up public indignation.'' Hu Kui, Sun Zhan, ``A Powerful
Drive To Exercise Management Over the Police,'' News Weekly [Xinwen
zhoukan], 4 August 03 (FBIS, 11 August 03). According to one Chinese
government report, the public provided only 6,073 tips on crimes in
2003 (as opposed to 216,000 in 1983), a development Chinese analysts
attributed in part to corruption and ``unhealthy trends'' in law
enforcement. Yu Bin, ``New Arrangements for Public Security Prevention
and Control.'' For official acknowledgement of public anger at and
distrust of law enforcement agencies, see also Chen Hong, ``Police,
Prosecutors Have Image Problem,'' China Daily, 22 July 04,
; Xin Wen, ``The Ministry of Public Security
Promulgates `Provisions on the Application of Continuing Interrogations
by Public Security Agencies,'' Ministry of Public Security, 3 August 04
(FBIS, 16 August 04).
\209\ On August 20, banner headlines on Xinhua's Chinese-language
Web site lauded recent reforms as symbols of ``new governance'' and the
government's concern for the lives of average citizens. ``Focusing
China's `New Governance': Taking People as the Basis, Paying Attention
to People's Lives'' [Zhujiao zhongguo `xin zheng': yi ren wei ben,
guanzhu rensheng], Xinhua, 8 August 03, . Wen
Jiabao's work report to the National People's Congress in March 2004
stressed these populist themes. PRC Government Work Report, 5 March 04.
For external analysis of Hu and Wen's motives, see ``Congress to Reveal
Leaders' Way Forward,'' South China Morning Post, 5 March 04,
; and ``China's Hu Jintao Begins Working on Image in
Quest To Consolidate Power,'' Agence France-Presse, 20 October 03
(FBIS, 20 October 03).
\210\ Commission Staff Monitoring.
\211\ In some programs, Chinese counterparts held mock Chinese
trials to demonstrate Chinese procedure to visiting American scholars
and officials. According to Commission sources, mock hearings and
trials encouraged an atmosphere of mutual exchange and generated
significant interest and goodwill on the part of Chinese counterparts.
\212\ Seventeenth International Penal Law Conference Opens in
Beijing'' [Di shiqi jie guoji xingfa dahui zai jing zhaokai], Legal
Daily [Fazhi ribao], 13 September 04, .
\213\ Commission Staff Interviews. Commission staff were struck by
the unanimity of Chinese scholars and reformers on this issue and the
enthusiasm with which they encouraged further exchange.
\214\ Commission Staff Interviews.
Notes to Section III(b)--Protection of Internationally Recognized
Labor Rights
\215\ Boris Cambreleng, ``Roaring Demand For Coal Exacts Steep
Price in Human Lives,'' South China Morning Post, 20 April 04,
.
\216\ Active Society in Formation: Environmentalism, Labor, and the
Underworld in China, Program of the Woodrow Wilson Center, 18 May 04,
Paper and Speech of Ching Kwan Lee, Professor at the University of
Michigan.
\217\ ``U.S. Secretary of Labor Elaine L. Chao and the USDOL
Delegation Meet with Chinese Academic Experts to Discuss Chinese Labor
Laws,'' U.S. Department of Labor Web site, 6 June 04, .
\218\ These eight conventions (available at ) are:
No. 29 Concerning Forced or Compulsory Labor
No. 87 Concerning Freedom of Association and Protection of
the Right to Organize
No. 98 Concerning the Application of the Principles of the
Right to Organize and to Bargain Collectively
No. 100 Concerning Equal Remuneration for Men and Women
Workers for Work of Equal Value
No. 105 Concerning the Abolition of Forced Labor
No. 111 Concerning Discrimination in Respect of Employment
and Occupation
No. 138 Concerning Minimum Age for Admission to Employment
No. 182 Concerning the Prohibition and Immediate Action
for the Elimination of the Worst Forms of Child Labor.
\219\ The United States has ratified only two of the eight ILO Core
Conventions. U.S. State Department officials point out that, even
without ratification, the Conventions largely are already present
within U.S. law.
\220\ ``China and the ILO,'' China Labour Bulletin, Issue No. 58,
Jan-Feb 2001, .
\221\ Thomas Lum, Congressional Research Service, Workplace Codes
of Conduct in China and Related Labor Conditions, 23 April 03, 3.
\222\ PRC Trade Union Law, enacted 3 April 92, amended 27 October
01, art. 11.
\223\ Anita Chan, ``China and the International Labour Movement,''
15 August 04, .
\224\ Gerard Greenfield and Tim Pringle, ``The Challenge of Wage
Arrears in China,'' International Labor Organization Labor Education
2002/3, No. 128, 31-3 .
\225\ Hong Kong Confederation of Trade Unions, Chinese Labour and
the WTO, June 2004, 33-43 (discussing the role of the ACFTU).
\226\ Phillip P. Pan, ``When Workers Organize, China's Party-Run
Unions Resist,'' Washington Post, 15 October 02, A11.
\227\ Commission Staff Interview.
\228\ Ibid.
\229\ ``Six Textile Workers Formally Arrested for Alleged
Involvement in 8 February Mass Workers Protest in Suizhou, Hubei,''
China Labour Bulletin, 28 February 04, .
\230\ Four other detained workers were released in April 2004, and
one women detainee was released because of ill health. ``Criminal
Trials of the Detained Tieshu Workers Begins: Two Tried, Two More
Awaiting Trial,'' China Labour Bulletin, 24 April 04, .
\231\ ``Petitioners Attempt Mass Suicide in Beijing,'' Radio Free
Asia, 12 July 04, reprinted in Asian Labour News, 14 July 04,
. Their central complaint was that the mining
bureau had distributed only a quarter of the $10,000 per worker set
aside for layoffs.
\232\ ``Beijing Police Turn Back Hundreds of Heilongjiang Miners,''
Radio Free Asia, 19 July 04, reprinted in Asia Labour News, 20 July 04,
.
\233\ Murray Scott Tanner, ``China Rethinks Unrest,'' 27 Washington
Quarterly 141 (2004).
\234\ Ibid., 147.
\235\ David Fang, ``Industrial Accidents on Mainland Drop 13PC,''
South China Morning Post, 14 June 04,
\236\ Ibid.; Tony Fung Kam Lam, ``Occupational Safety and Health in
China,'' Asia Monitor Resource Center, November 2000,
.
\237\ John Fabian Witt, ``Can China Improve Work Safety? '' Bangkok
Post, 8 May 04.
\238\ Shi Jiangtao, ``Industrial Safety Still a Distant Dream,''
South China Morning Post, 19 April 04, .
\239\ David Fang, ``Industrial Accidents on Mainland Drop 13PC.''
\240\ Peter S. Goodman, ``In China, Miners Pay a High Toll,''
Washington Post, 22 March 04, A1.
\241\ David Fang, ``Industrial Accidents on Mainland Drop 13PC.''
\242\ ``News Review: Reported Coal Mine Accidents in March 2004,''
China Labour Bulletin, 2 April 04, .
\243\ ``Mine Owners Arrested Over `Cover-Up','' China Labour
Bulletin, 14 June 04, .
\244\ Regulations on Insurance for Occupational Injuries [Gongshang
baoxian tiaoli], issued 27 April 03.
\245\ Ibid., art. 2.
\246\ ``China to Establish Work Safety Indexes this Year,'' Xinhua,
24 February 04, reprinted in China Net, .
\247\ The State Administration of Work Safety will issue indexes
for seven categories: the national death toll from industrial
accidents, the death rate per 100,000 yuan of GDP, the death rate per
100,000 people, the death rate for industrial accidents per 100,000
people, the death toll per 100,000 for industrial enterprises, and the
death toll for coal mines and the death rate per one million tons of
coal. The death tolls and rates will be published every quarter. Ibid.
\248\ ``U.S. China to Broaden Cooperation on Safety, Workers'
Rights,'' U.S. Department of State Web site, 21 June 04, . Under one agreement, relevant agencies will broaden
their cooperation on wage and hours regulations, the enforcement of
wage and hours laws, and the analysis of wage and hour enforcement
data. In another agreement on mine safety and health, the governments
pledged to broaden cooperation in emergency responses to coal mine
accidents. The third agreement assures the broadened cooperation in
areas of occupational health and safety, particularly regarding the
handling of hazardous chemicals, emergency response procedures in
workplace accidents, private insurance promoting health and safety, and
the collection of data and analysis of occupational safety and health.
The fourth agreement covers administration and oversight of pension
programs.
\249\ ``Minimum Wage System Set Up,'' Xinhua, 26 July 04,
.
\250\ National Labor Committtee, Putting a Human Face on the Global
Economy, 15 August 04, . One survey shows that full
time beggars in Beijing average more than 600 yuan per month. Leil a
Fernandez-Stembridge and Richard Madsen ``Beggars in the Socialist
Market Economy,'' in Popular China, eds. Perry Link, Richard Madsen,
and Paul Pickowicz (Lanham: Rowman & Littlefield, 2002), 215.
\251\ Gerard Greenfield and Tim Pringle, ``The Challenge of Wage
Arrears in China,'' 31-3.
\252\ Ibid., at 32.
\253\ Anthony Kuhn, ``A High Price to Pay For a Job,'' Far Eastern
Economic Review, 22 January 04, .
\254\ Ibid. Some experts estimate that as many as 90 percent of
Chinese migrants work without contracts. ``Scheme to Help Recover Back
Pay,'' South China Morning Post, 19 March 04 (FBIS, 19 March 04). Other
sources provide even higher numbers. Anthony Kuhn, ``Migrant Workers
Are Owed Billions in Unpaid Wages, Sparking Demand for Justice,'' Wall
Street Journal, 19 January 04 (FBIS, 19 January 04).
\255\ Josephine Ma, ``Workers Face a Long Wait For Justice,'' South
China Morning Post, 21 January 04, .
\256\ ``Five Thousand Workers Besiege Hong Kong Factory in Buji,''
Tai Yang Pao, 6 June 04 (FBIS, 6 June 04).
\257\ ``Jiangxi SOE Workers Protest Prohibition on Appealing to
Higher Authorities,'' Ming Pao, 17 September 03 (FBIS, 17 September
03).
\258\ Numerous localities are preparing legislative responses. The
Beijing city government has prepared local regulations on the payment
of wages. Under the new regulations, to take effect January 22, wage
payments are not to be delayed more than 30 days. ``Beijing: Back Wages
May Not Be Delayed More Than 30 Days'' [Beijing: tuo qian gongzi bu dei
chaoguo 30 tian], China Youth Daily [Zhonghua qingnian bao], reprinted
in Xinhua, 27 December 03, . The Guangdong
vice-governor has set a three-year timeframe for resolving the back-
wage issue. ``Province Will Resolve Back Wages Within Three Years''
[Quansheng sannian jiejue gongcheng kuan], Southern Metropolitan Daily
[Nanfang dushi bao], 10 December 03, . For one
illustrative case that required eight years and the intervention of Wen
Jiabao himself to resolve, see ``Hundreds of Migrants Chase Wages for 8
Years'' [Shubai mingong 8 nian zhuixin], Southern Metropolitan Daily
[Nanfang dushi bao], 10 December 03, . The
issue has attracted the attention of top leaders. One member of the
Political Bureau of the CPCC and vice premier of the State Council has
publicly emphasized the importance of the issue and criticized the
slowness with which certain localities have been addressing it. ``Zeng
Peiyan: Firmly Grasp [the Goal of] Returning Last Year's Migrant Back
Wages in the Construction Sector'' [Zeng Peiyan: Zhua jin duixian
jianshe lingyu qunian tuoqian de mingong gongzi], Xinhua, 2 January 04,
reprinted in Sina.com, .
\259\ Josephine Ma, ``Workers Face a Long Wait For Justice''
(citing the Chinese Minister of Construction as stating that various
levels of government account for at least a quarter of debts owed to
construction companies).
\260\ Critical voices have emerged in the Chinese media, raising
key questions of accountability and oversight for government
construction projects, many of which are undertaken to raise prestige.
``Curing the Problem of Migrant Back Wages, Challenging the Career
Development Model'' [Genzhi nongmingong qianxin nanti, tiaozhan zhengji
fazhan moshi], 21st Century Business Herald [21 shiji jingji baodao],
17 January 04, .
\261\ PRC State Council Decision on Amending the ``State Council
Regulations on Work Hours for Laborers'' [Guowuyuan guanyu xiugai
``guowuyuan guanyu zhigong gongzuo shijian de guiding'' de jueding],
issued 25 March 95, arts. 1 and 2.
\262\ Verite, Inc., A Persistent Problem: Excessive Overtime in
Chinese Supplier Factories Worker and Management Perceptions of the
Causes and Impacts, July 2004, 4, .
\263\ Ibid., 21.
\264\ Commission Staff Interview.
\265\ Thomas Lum, Workplace Codes of Conduct in China and Related
Labor Conditions, 10.
\266\ China Labour Bulletin, Child Labour in China: Causes and
Solutions, 26 November 03, .
\267\ In 2001, 42 people, many children as young as eight, perished
in an explosion in a rural school in Jiangxi province that had forced
the students to manufacture fireworks to earn money to support the
school. ``China's `Fireworks School' Yields Its Dead,'' CNN Web site, 7
March 01, ; ``China Announces New Crackdown on Dangerous
Fireworks Production,'' Associated Press Worldstream, 26 November 03.
See also ``Private Schools Organize New Students to Engage in Child
Labor'' [Minban xuexiao zuzhi xinsheng jiti zuo tonggong], New Beijing
News [Xin jingbao], 15 September 04, .
\268\ ``Focus 13 June Reports on Knitting Mill Illegally Hiring
Child Workers, CCTV Beijing, 13 June 04 (FBIS, 13 June 04).
\269\ ``Fujian Company Fined in Child Labor Case,'' Xinhua, 13
January 03, . The local Labor Supervision
Detachment fined the company 30,000 yuan. Ibid.
\270\ See, e.g., reports published on the Laogai Research
Foundation Web site at .
\271\ World Organization to Investigate the Persecution of the
Falun Gong, WOIPFG Report on Products Practitioners Are Forced to
Manufacture in China's Labor Camps, 16 October 03,
; China: The 15th Anniversary of the Tiananmen
Square Crackdown, Hearing of the Congressional Human Rights Caucus, 3
June 04, Testimony of Erping Zhang, Executive Director, Association of
Asian Research (noting ``over 100,000 Falungong practitioners serving
in labor camps, jails, and mental institutions'').
\272\ ``China to Reform Prisons; `Productive Units' Separated From
Prisons,'' ANSA English Media Service, 22 September 03 (FBIS, 22
September 03).
\273\ U.S.-China Economic and Security Review Commission, Policy
Paper on Prison Labor and Forced Labor in China, U.S--China Economic
Security Commission Report, 2002, .
\274\ Bilateral Trade Policies and Issues Between the United States
and China, Hearing of the U.S.-China Economic and Security Review
Commission, 2 August 01, Testimony of Charles Winwood, Customs
Commissioner on Chinese Prison Labor.
\275\ 22 USC Sec. 501.
Notes to Section III(c)--Freedom of Religion
\276\ ``Chinese Communist Party Policy on Religion Outlined by
Party Paper,'' People's Daily [Renmin ribao], 14 November 03 (BBC
Monitoring, 26 November 03).
\277\ Ibid.
\278\ Jiang perfected the solution, but the formulation traces its
roots to Deng Xiaoping. In 1982, China's Constitution was amended to
protect ``normal religious activities,'' a guarantee that would provide
``sufficient'' religious freedom for the five faiths officially
recognized by the Chinese government (Buddhism, Taoism, Islam,
Catholicism, and Protestantism) while enlarging the Party's mass base
of support. Deng's new thinking was designed to energize the productive
capacity of religious believers by tempering the unrelenting hostility
toward religion that had grown out of the Cultural Revolution. The new
Party policy on religion was laid out in the 1982 document, ``The Basic
Viewpoint and Policy on the Religious Question during Our Country's
Socialist Period (Document 19).'' Mickey Spiegel, ``Control and
Containment in the Reform Era,'' in God and Caesar in China: Policy
Implications of Church-State Tensions, eds. Jason Kindopp and Carol
Hamrin (Washington, D.C.: Brookings Institution Press, 2004); Pitman B.
Potter, ``Belief in Control: Regulation of Religion in China,'' 174
China Quarterly 317, 319-321 (2003).
\279\ Sun Chengbin, ``During Hebei Inspection, Jia Qinglin
Emphasizes Commanding Religions Work Through the Important Thinking of
the `Three Represents,' Leading Masses of Religious Believers to Devote
Themselves to Comprehensively Building Well-off Society,'' Xinhua, 10
November 03 (FBIS, 10 November 03).
\280\ Chen Songshao, ``Ruling Party and Religion: An Extremely
Important Theoretical Issue,'' China Religion [Zhongguo zongjiao], 26
January 04 (FBIS, 29 April 04).
\281\ Ibid.
\282\ Ma Xuejun, ``Do a Good Job of Religious Work in the New
Period,'' Gansu Daily [Gansu ribao], 30 June 04 (FBIS, 2 July 04).
\283\ Ibid.
\284\ Ambiguity has challenged Party policy on religion from the
start. Even Mao commended the anti-religious activities of peasants,
while he warned that ``it is wrong'' for anyone to ``cast aside the
idols'' or ``pull down the temples'' of others. Mao Zedong, ``An
Investigation into the Peasant Movement in Hunan,'' in Selected Works
of Mao Tse-tung, Vol. 1 (Beijing: Foreign Languages Press: 1975), 23-
29. See also, Michael A. Lev, ``China Touts New Churches, But Rules
Crimp Faithful; Government Still Controls Religion,'' Chicago Tribune,
3 March 04.
\285\ Wang Yan, ``Uphold the Use of Important Thinking of the
`Three Represents' to Lead Religious Work,'' Heilongjiang Daily
[Heilongjiang ribao], 25 May 04 (FBIS, 28 May 04); Ma Xuejun, ``Do a
Good Job of Religious Work in the New Period''; Hu Shaojie, ``Together
They Strike Up the Magnificent Melody of Religious Work,'' China
Religion [Zhongguo zongjiao], 26 March 04 (FBIS, 10 June 04).
\286\ China's current ``socialist religious theory'' is routinely
attributed to the third generation leadership, specifically Jiang
Zemin, in the Chinese press. At the same time, China's fourth
generation leadership under President and General Secretary Hu Jintao
has embraced the theory, and ``stressed using the important thinking of
the `Three Represents' to command religion work.'' ``Study Session of
Provincial Leading Cadres on Religious Work Opens in Beijing,'' Xinhua,
3 June 04 (FBIS, 3 June 04).
\287\ The official Party line pursued during the Cultural
Revolution, the elimination of religion, stands out as an aberration in
an otherwise consistent policy focus on ``control of religion'' since
the early 1950s. Holmes Welch surveyed the role of the religious
affairs bureaucracy as it was created and institutionalized in the
early 1950s. Although the title of the national-level organization has
now changed to the State Administration for Religious Affairs, little
else regarding doctrinal hostility toward religion or SARA's
implementing guidelines has changed. See, in particular, Homes Welch,
Buddhism Under Mao (Cambridge, Mass.: Harvard University Press, 1972),
35.
\288\ See, e.g., regulations posted on the Hunan Provincial
Religious Affairs Bureau Web site, , and the
United Front Work Department's Web site, .
\289\ ``Chinese Religious Leaders Condemn U.S. Religious Freedom
Report,'' Xinhua, 21 May 04 (FBIS, 21 May 04).
\290\ ``China Foreign Ministry Spokesman Refutes U.S. Accusations
Against Religious Policy,'' Xinhua, 14 May 04 (FBIS, 14 May 04).
\291\ These laws and regulations include: Implementing Measures on
Managing the Registration of Religious Social Organizations [Zongjiao
shehui tuanti dengji guanli shishi banfa], issued 6 May 91; Regulations
on Managing Places for Religious Activities [Zongjiao huodong changsuo
guanli tiaoli], issued 31 January 94; Measures for the Registration of
Places for Religious Activities [Zongjiao huodong changsuo dengji
banfa], issued 13 April 94; Provisions on Managing the Religious
Activities of Aliens in China [Zhonghua renmin gongheguo jingnei
waiguoren zongjiao huodong guanli guiding], issued 31 January 94;
Measures for the Annual Inspection of Places of Religious Activities
[Zongjiao huodong changsuo niandu jiancha banfa], issued 30 July 96;
and Detailed Rules on Implementing the Provisions on Managing the
Religious Activities of Aliens in the People's Republic of China
[Zhongguo jingnei waiguoren zongjiao huodong guanli guiding shishi
xize], issued 26 September 00. For an in-depth analysis of the Chinese
legal structure controlling religion, see Potter, ``Belief in Control:
Regulation of Religion in China.'' Also see the CECC Web site,
www.cecc.gov, for a more complete listing of these laws and
regulations, with translations.
\292\ Ye Xiaowen's statement as referenced in, Magda Hornemann,
``China: Religious Freedom and the Legal System: Continuing Struggle,''
Forum 18 News Service, 28 April 04, .
\293\ Potter, ``Belief in Control: Regulation of Religion in
China.''
\294\ ``PRC Official on `Three Represents' Commanding Religion in
China,'' Xinhua, 3 June 04 (FBIS, 3 June 04), Ma Xuejun, ``Do a Good
Job of Religious Work in the New Period.''
\295\ Yu Kai, ``Hubei Holds Forum on `Cults' in Wuhan, Remarks
Against Falungong, Li Hongzhi,'' Hubei Daily [Hubei ribao], 3 Jul 04
(FBIS, 6 July 04).
\296\ For an extensive treatment of PRC government abuses against
Falun Gong practitioners, see Bureau of Democracy, Human Rights, and
Labor, U.S. Department of State, Country Reports on Human Rights
Practices--2003, China (including Tibet, Hong Kong and Macau), 25
February 04.
\297\ For an analytical treatment of the impact of the Party's
handling of the Falun Gong movement on criminal justice reform in
China, see Ronald C. Keith and Lin Zhiqiu, ``The `Falun Gong Problem':
Politics and the Struggle for the Rule of Law in China,'' 175 China
Quarterly 623 (2003).
\298\ ``Beijing Steps up Campaign Against `Cults' in Rural Areas,''
Foreign Broadcast Information Service, 21 May 04 (FBIS, 21 May 04). See
in particular the FBIS reference to a Politiburo-level commentator in
the 17 April 2004 edition of People's Daily calling for more localities
to enforce the crackdown.
\299\ See analytical comments in ``Beijing Steps up Campaign
Against `Cults' in Rural Areas,'' Foreign Broadcast Information
Service. See, in particular, the FBIS description of an article on the
Web site of the Beijing Association of Science Technology referencing a
central directive titled ``Circular on Launching Anti-Cult Warning
Education in Rural Areas Throughout the Country.''
\300\ Xu Hong, ``China Anticult Association Holds Ninth Public
Lecture and Academic Symposium in Chengdu to Discuss Ways to Prevent
Cults From Breeding and Infesting Rural Villages,'' Sichuan Daily
[Sichuan ribao], 30 May 04 (FBIS, 02 June 04). See analytical comments
in ``Beijing Steps up Campaign Against `Cults' in Rural Areas,''
Foreign Broadcast Information Service. See in particular FBIS
description of an article on the Web site of the Beijing Association of
Science Technology referencing a central directive titled ``Circular on
Launching Anti-Cult Warning Education in Rural Areas Throughout the
Country.''
\301\ The U.S.-based Falun Dafa Information Center reported that
one of the highest tolls in official violence and indoctrination
against China's Falun Gong practitioners occurred in April 2004. ``62
Cases of Falun Gong Practitioners Killed from Torture, Abuse Reported
in April and May 2004,'' Falun Dafa Information Center, 9 June 04,
.
\302\ See analytical comments in ``Beijing Steps up Campaign
Against `Cults' in Rural Areas,'' Foreign Broadcast Information
Service. See, in particular, the FBIS reference to a Politiburo-level
commentator in the 17 April 2004 edition of People's Daily identifying
Falun Gong as a target of the campaign, and the FBIS description of an
article posted on the PRC Ministry of Agriculture Web site outlining
the campaign. The crackdown in Deqing county, Zhejiang province
resulted in 10 small churches and 392 temples being closed between
September and October 2003. ``Deqing County in Zhejiang Province Has
Closed Down 392 Temples and 10 Churches,'' Hong Kong Information Center
for Human Rights and Democracy, 8 November 03 (FBIS, 12 November 03).
\303\ Ma Xuejun, ``Do a Good Job of Religious Work in the New
Period.''
\304\ Wu Qingcai, ``Beijing Experts Call for Emphasis on Education
in Scientific Atheism Directed at Youth,'' China News [Zhongguo
xinwen], 31 May 04 (FBIS, 2 June 04).
\305\ Ibid.
\306\ Ibid. See also, Tian Yu, ``It is the Good Spring Time in
Jiaodong--What I Have Seen and Heard About the Anti-Cult Education
Campaign Through Admonition and Instruction in the Rural Areas of
Yantai City, Shandong Province,'' Xinhua, 16 April 04 (FBIS, 21 April
04).
\307\ Ghupur Reshit, ``Reflections on the Work of Cultivating
Patriotic Religious Personnel,'' Social Sciences in Xinjiang [Xinjiang
shehui kexue], 25 November 03 (FBIS 08 January 04).
\308\ Tian Yu, ``It is the Good Spring Time in Jiaodong--What I
Have Seen and Heard About the Anti-Cult Education Campaign Through
Admonition and Instruction in the Rural Areas of Yantai City, Shandong
Province.''
\309\ Ma Xuejun, ``Do a Good Job of Religious Work in the New
Period.''
\310\ Yue Zong, ``Constantly Raise the Level of Religious Work and
Resist Foreign Religious Infiltration,'' Southern Metropolitan Daily
[Nanfang dushibao], 22 May 04 (FBIS, 22 May 04); Chen Songchao,
``Ruling Party and Religion--An Extremely Important Theoretical
Issue,'' China Religion [Zhongguo zongjiao], 26 January 04 (FBIS, 29
April 04).
\311\ Yu Kai, ``Hubei Holds Forum on `Cults' in Wuhan, Remarks
Against Falungong, Li Hongzhi.''
\312\ ``Chinese Communist Party Policy on Religion Outlined by
Party Paper,'' People's Daily.
\313\ Wang Yan, ``Uphold the Use of Important Thinking of the
`Three Represents' to Lead Religious Work.''
\314\ For a more extensive treatment of this subject, see the CECC
2003 Annual Report. See also infra, Religious Freedom for Tibetan
Buddhists and Religious Freedom for China's Muslims.
\315\ TAR Leading Committee for Patriotic Education in Monasteries,
TAR Patriotic Education for Monasteries Propaganda Book No. 4. Handbook
for Education in Policy on Religion, May 2002, Section 2, 14(d). (The
International Campaign for Tibet obtained an official Tibetan-language
version as distributed in the monasteries. English translation by ICT
on file with the Commission.)
\316\ Commission Staff Interviews. An official in the TAR said
there are 46,000 monks and nuns in the TAR, and that this figure
``accounts for two percent of the Tibetan population.'' (46,000 would
be about 1.9 percent of the TAR's 2.43 million Tibetans in 2000.) An
official in Qinghai said there are about 21,000 Tibetan monks and nuns
in the province. (21,000 would be about 1.9 percent of Qinghai's 1.09
million Tibetans in 2000.) An official in Gansu said there are about
10,000 Tibetan monks and nuns. (10,000 would be about 2.3 percent of
Gansu's 443,000 Tibetans in 2000.)
\317\ TAR Patriotic Education for Monasteries Propaganda Book No.
4, Section 1, Question 7.
\318\ Ibid., Question 8(i).
\319\ Propaganda Department of the Committee of the Communist Party
of the TAR, A Reader for Advocating Science and Technology and Doing
Away with Superstitions, 2002, Section 1, Question 17. (The
International Campaign for Tibet obtained an official Chinese-language
version of the Reader after it had been distributed to county-level
Education Offices in the TAR. English translation by ICT on file with
the Commission.)
\320\ TAR Leading Committee for Patriotic Education in Monasteries,
TAR Patriotic Education for Monasteries Propaganda Book No. 2. Handbook
for Education in Anti-Splittism, May 2002, Section 2, 2(d). (The
International Campaign for Tibet obtained an official Tibetan-language
version as distributed to monasteries. English translation by ICT on
file with the Commission.)
\321\ The Gelug sect's spiritual head is the Dalai Lama. There are
three other major sects of Tibetan Buddhism: the Kagyu, Sakya, and
Nyingma.
\322\ The Dui Hua Foundation, ``Criminal Verdict of the Sichuan
Province Ganzi Tibetan Minority Autonomous Prefecture Intermediate
People's Court, 2000. Ganzi Intermediate Court Verdict No. 11,'' in
Selection of Cases from the Criminal Law, August 2003, 42-55. Dui Hua's
translation of the official sentencing document shows that the court
agreed that Sonam Phuntsog had not explicitly called for ``Tibetan
independence,'' but nonetheless sentenced him for inciting splittism
because he ``incited the masses to believe in the Dalai Lama.''
\323\ TAR Patriotic Education for Monasteries Propaganda Book No.
4. Handbook for Education in Policy on Religion, Section 3, Question
29: ``How should the internal management of monasteries be
strengthened? '' The answer, in part: ``Monasteries are not permitted
to impose any burden on ordinary people by whatever means.'' Section 4,
Question 42: ``What is the general procedure for diligently guiding the
adaptation of Tibetan Buddhism to Socialist society in the Tibet
region? '' The answer, in part: ``The monks and nuns in general became
self-sufficient workers in the Socialist family, and the economic
burden on the masses was reduced by an ascertained measure.'' (The
International Campaign for Tibet obtained an official Tibetan-language
version as distributed to monasteries. English translation by ICT on
file with the Commisison.)
\324\ Entry fees are rising rapidly. ``New Metal Barricades in
Lhasa's Jokhang Control Access to Inner Temple,'' Tibet Information
Network, 12 May 04, . Lhasa's Jokhang Temple,
Tibetan Buddhism's oldest and most important temple, charges 70 yuan
for entry, 10 yuan more than Beijing's Forbidden City. Metal barricades
have been erected to control Tibetan worshippers and ensure that non-
Tibetans, including Han, pay the steep fee.
\325\ ``Tibet Receives More Tourists in First Half,'' Xinhua, 31
July 04, . 505,000 tourists visited the TAR
in the first half of 2004. 470,000 were from elsewhere in China; 37,000
were from ``overseas regions and countries.'' (Tourists from inside
China outnumbered those from outside China by nearly 13 to 1.)
\326\ In the late 1950s, the Chinese government organized the
Catholic Patriotic Association (CPA), gave it control of all Church
property, and convinced a small group of bishops and priests to
proclaim their independence from the Holy See and subordinate
themselves to the CPA. Since that time, the government has worked to
persuade and coerce Catholic clergy and laity to register with this
``official Church.'' The majority refused to do so and went
``underground,'' where, persisting in their fidelity to the Holy See,
they refused to attend Masses offered by priests of the ``official
Church.'' China today has an estimated 8 million unregistered and 4
million registered Catholics.
\327\ ``Beijing Says the Bishop Went Abroad Illegally,'' AsiaNews,
11 March 04, ; Bernardo Cervellera, P.I.M.E., ``New
Churches Built to Destroy Even More,'' AsiaNews, 4 February 04,