[Joint House and Senate Hearing, 111 Congress]
[From the U.S. Government Publishing Office]
HUMAN RIGHTS AND THE RULE OF LAW IN CHINA
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HEARING
before the
CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
OCTOBER 7, 2009
__________
Printed for the use of the Congressional-Executive Commission on China
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CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
LEGISLATIVE BRANCH COMMISSIONERS
Senate House
BYRON DORGAN, North Dakota, SANDER LEVIN, Michigan, Cochairman
Chairman MARCY KAPTUR, Ohio
MAX BAUCUS, Montana MICHAEL M. HONDA, California
CARL LEVIN, Michigan TIMOTHY J. WALZ, Minnesota
DIANNE FEINSTEIN, California DAVID WU, Oregon
SHERROD BROWN, Ohio CHRISTOPHER H. SMITH, New Jersey
SAM BROWNBACK, Kansas EDWARD R. ROYCE, California
BOB CORKER, Tennessee DONALD A. MANZULLO, Illinois
JOHN BARRASSO, Wyoming JOSEPH R. PITTS, Pennsylvania
EXECUTIVE BRANCH COMMISSIONERS
Department of State, To Be Appointed
Department of Labor, To Be Appointed
Department of Commerce, To Be Appointed
At-Large, To Be Appointed
At-Large, To Be Appointed
Charlotte Oldham-Moore, Staff Director
Douglas Grob, Cochairman's Senior Staff Member
(ii)
C O N T E N T S
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Page
Opening statement of Hon. Byron Dorgan, a U.S. Senator from North
Dakota; Chairman, Congressional-Executive Commission on China.. 1
Walz, Hon. Tim, a U.S. Representative from Minnesota; Member,
Congressional-Executive Commission on China.................... 4
Smith, Hon. Christopher H., a U.S. Representative from New
Jersey; Ranking Member, Congressional-Executive Commission on
China.......................................................... 5
Kamm, John, Founder and Chairman, Dui Hua Foundation............. 6
Economy, Elizabeth C., C.V. Starr Senior Fellow and Director for
Asia Studies, Council on Foreign Relations..................... 8
Clarke, Donald C., Professor of Law, George Washington University 10
Bovingdon, Gardner, Assistant Professor, Indiana University,
Bloomington.................................................... 13
Wu, Hon. David, a U.S. Representative from Oregon; Member,
Congressional-Executive Commission on China.................... 27
APPENDIX
Prepared Statements
Kamm, John....................................................... 32
Economy, Elizabeth C............................................. 44
Clarke, Donald C................................................. 48
Bovingdon, Gardner............................................... 57
HUMAN RIGHTS AND THE RULE OF LAW IN CHINA
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WEDNESDAY, OCTOBER 7, 2009
Congressional-Executive
Commission on China,
Washington, DC.
The hearing was convened, pursuant to notice, at 2:04 p.m.,
in room 628, Dirksen Senate Office Building, Senator Byron
Dorgan (Chairman of the Commission) presiding.
Also present: Senator John Barrasso; Representatives
Timothy J. Walz; Christopher H. Smith; Michael M. Honda; and
David Wu.
OPENING STATEMENT OF HON. BYRON DORGAN, A U.S. SENATOR FROM
NORTH DAKOTA; CHAIRMAN, CONGRESSIONAL-EXECUTIVE COMMISSION ON
CHINA
Chairman Dorgan. We're going to call the hearing to order.
This is a hearing of the Congressional-Executive Commission on
China. The U.S. House is currently in the middle of a vote, but
my colleagues from the House and Senate will join us.
The Commission voted today on the adoption of its 2009
report to be released next week. The Commission issues a report
each year, as many of you know, to the Congress and to the
President on the subject of human rights conditions and the
development of the rule of law in China.
In connection with today's vote, the Commissioners asked a
distinguished group of witnesses to join us today to assess
China's
efforts in the witnesses' areas of expertise, whether it is
environmental protection, criminal defense, or civil rights. We
will also hear the perspectives of the witnesses on how the
United States might best engage and incorporate human rights
and the rule of law issues into its overall agenda with China.
In its 2009 Annual Report, the Commission expresses deep
concern about continued human rights abuses and stalled rule of
law development. It notes with concern that some Chinese
Government policies designed to address social unrest and to
bolster the Party's authority are resulting in a period of
declining human rights for Chinese citizens.
Serious abuses result in part from the absence of basic
protections available to citizens through the legal system.
A stable China with a robust commitment to the rule of law
and human rights is in the national interest of the United
States, and also very much in the interest of the people of
China.
In fact, I believe that advancing human rights concerns
with China is more important now to the national interests of
the United States than ever before. The reporting of this
Commission makes that crystal clear. Press censorship in China
makes it possible for toxic food and public health crises to
spread globally. Abuse of low-wage labor compromises goods that
come to the United States, which have harmed American
consumers, as well as an untold number of Chinese consumers,
and these abuses are well-documented.
The harassment of whistleblowers and human rights lawyers
and the suppression of criticism and dissent remove internal
checks against environmental damage that not only hurts
ordinary Chinese citizens, but has a global impact as well. The
shuttering of law firms that are perceived as challenging the
government removes important avenues for justice for the poor
and the most vulnerable.
To maximize progress on food safety, product quality, even
clean air, the Chinese Government must engage as allies
environmental whistleblowers, a watchdog press, the NGOs, and
human rights lawyers. They cannot continue to repress them as
enemies of the state.
I want to briefly mention one human rights lawyer who has
had the courage and the tenacity to take on politically
sensitive cases, and then as a result, has been branded an
``enemy of the state.'' I am talking about Gao Zhisheng, a
pioneering Chinese human rights lawyer who went missing in
February 2009. Gao represented some of China's most vulnerable
people. They included exploited coal miners, underground
Christians, and Falun Gong members. He believed in the power of
the law. He sought to use the law to battle corruption, to
expose police abuses, and to defend religious freedom.
I have written to the Chinese Government about Gao on a
number of occasions and have met with his wife earlier this
year here in Washington, DC. I understand that Mr. Kamm may
have some information from the Chinese Embassy which it
yesterday asked him to relay to me, and I look forward to
hearing what you have to report, Mr. Kamm.
China has also taken many potentially positive steps in
recent years that must be noted. The government has enshrined
in its Constitution the state's responsibility to protect and
promote human rights. China recently adopted new labor
protections and relaxed restrictions on foreign journalists
inside China. This year, the Chinese Government issued a
national human rights action plan that uses the language of
human rights to cast an ambitious program for promoting the
rights of its citizens. The government now needs to translate
words into action. It is one thing to write something down,
another thing to represent it as having importance, yet it is
quite another practice altogether to decide that you are going
to abide by that which you have presented to the world.
Let there be no doubt, I have enormous respect for the
country of China. I respect the progress that China has made by
lifting many people out of poverty. I admire its rich and
remarkable culture and its immensely talented people. But I
firmly believe that its people ought to be able to be free to
speak their minds and to practice their chosen faiths without
fear. Too often that is not now the case in China.
So to help us better understand human rights conditions and
the development of the rule of law in China, we are going to
hear from four witnesses. John Kamm is founder and chairman of
the Dui Hua Foundation. He started his own chemical company
with offices in Hong Kong and China in 1979. He served as the
Hong Kong representative of the National Council for U.S.-China
Trade from 1976 to 1981. He was president of the American
Chamber of Commerce in Hong Kong in 1990. He serves as a
director of the National Committee on U.S.-China Relations. In
1999, he founded the Dua Hua Foundation. He also directs
ongoing research for the Project in Human Rights Diplomacy at
Stanford University's Institute for International Studies.
Mr. Kamm, we appreciate your being here today. You have a
wealth of experience, and we are anxious to hear from you.
Elizabeth Economy is a C.V. Starr Senior Fellow and
Director for Asia Studies at the Council on Foreign Relations.
She has taught at Columbia University, Johns Hopkins
University's Paul H. Nitze School of Advanced International
Studies, and the University of Washington's Jackson School of
International Studies, and now serves on the board of the
China-U.S. Center for Sustainable Development. Dr. Economy's
publications include ``The River Runs Black: The Environmental
Challenge to China's Future,'' ``China Joins the World:
Progress and Prospects,'' and ``The Internalization of
Environmental Protection.''
Dr. Economy, we are pleased that you are here as well.
Donald Clarke is a Professor of Law at George Washington
University Law School. He specializes in modern Chinese law,
focusing particularly on corporate governance, Chinese legal
institutions, and the legal issues presented by China's
economic reforms. He has practiced law at the New York firm of
Paul, Weiss, Rivken, Wharton & Garrison. He has lived for
extended periods of time in China.
He is a member of the Academic Advisory Group to the U.S.-
China Working Group of the U.S. Congress, and has served as a
consultant to a number of organizations, including the
Financial Sector Reform and Strengthening Initiative, which is
called FIRST, the Asian Development Bank, and the Agency for
International Development.
Mr. Clarke, we are pleased you are here.
Finally, Mr. Gardner Bovingdon, Assistant Professor at
Indiana University in Bloomington. He has taught at Cornell,
Yale, and Washington University in St. Louis. His research
interests are politics in contemporary China, the history of
modern China nationalism, and ethnic conflict. His book will be
published by Columbia University in the spring of 2010,
``Strangers In Their Own Land.'' We welcome all of the
witnesses today.
Before I call on my colleagues, I want to take one moment
to recognize another person in this room, and that is Mr. Fang.
At the Commission's June 4 hearing, Mr. Fang Zheng, who
recently arrived from China, was confined to a wheelchair. He
lost both of his legs when he was run over by a tank in
Tiananmen Square in 1989; an extraordinary, courageous citizen
of China who, the last time he was with us, did not have legs.
This evening at the Capitol, he will dance with his wife at a
party in his honor. This is due to the generosity of a number
of American good Samaritans who have provided him with a new
set of legs. We are so pleased you are here. Would you stand
and be recognized? [Applause].
Mr. Fang, thank you very much. We use the word ``courage''
without always understanding exactly what it means, and the
loss of your legs in 1989 in Tiananmen Square, exhibiting
unbelievable courage in standing for the destiny of people
being able to speak for themselves and act for themselves and
choose their own destiny, that is courage. We appreciate your
being here.
Let me call on my colleagues. Congressman Walz?
STATEMENT OF HON. TIMOTHY J. WALZ, A U.S. REPRESENTATIVE FROM
MINNESOTA; MEMBER, CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
Representative Walz. Well, thank you, Chairman Dorgan, for
your leadership.
Thank you to all of our panelists for being here. We truly
appreciate this. The importance of getting together and the
importance of this Commission I do not think can be over-
stressed, and I, too, extend my welcome.
Fang Zheng, thank you for being here. When you were here in
June, my only disappointment was that we did not have as many
people here or as many cameras to tell the story, and to tell
the story to our young people of what happened.
As we as a country develop our relationships with China, it
is critically important that we develop them not just on the
economic side of things, we develop them on the environmental
side, on the moral side, the human rights side, and all of
those together, trying to understand one another in a way that
betters our societies for everyone.
Yesterday, I had a unique opportunity to spend a little
over an hour with His Holiness the Dalai Lama, and spoke
extensively with him. When I asked the question about this
Commission and the work that we are doing in here and the
report that we publish, I said, ``Is this helpful for
furthering democratic principles and human rights principles?
'' And he didn't miss a beat and said: ``Very helpful. Keep
doing your work. Keep doing the work and keep publicizing it.''
He said, ``Not just for us, not just for Tibet, but for China,
for the People's Republic of China, to further their growth to
bring them into the community of nations fully and for us to
understand one another.''
So I am proud of the work we do in here. I think that the
Chairman has summed it up. The group that met with the Dalai
Lama is the China Working Group in the House, and their motto
is, kind of, it is a group of people that aren't panda-huggers
or dragon-slayers, they're folks that want to get this thing
right in our relationship. I'm very proud of the work of this
group of staying consistent with our principles on human
rights, from trade, to the environment, to everything else.
So with that, Chairman, I thank you again and I yield back.
Chairman Dorgan. Thank you.
Congressman Smith?
STATEMENT OF HON. CHRISTOPHER H. SMITH, A U.S. REPRESENTATIVE
FROM NEW JERSEY; RANKING MEMBER, CONGRESSIONAL-EXECUTIVE
COMMISSION ON CHINA
Representative Smith. Thank you very much, Mr. Chairman. I
would ask that my full statement be made a part of the record,
and I will be very brief.
Chairman Dorgan. Without objection.
Representative Smith. Mr. Chairman, I am afraid that what
we have seen in China is not the emergence of rule of law, but
rule by law. All of China's developing legal structures,
regulatory institutions, and bureaucratic agencies do not
amount to real law, since the Communist Party and the
government are not subject to them. These structures are tools
the Party and the government use to more effectively control
people, people who want to worship freely, found families, live
as Tibetans or Uyghurs, access the global Internet, bargain
collectively, or choose their own government.
Reviewing this Commission's report, I was struck by both of
these things in respect to one of the Chinese Government's most
neglected victims, women. With the coercive One-Child Policy,
the Chinese Government itself intrudes in a deadly fashion into
the private life of every Chinese woman, not numberless
millions, but each woman with her own dignity, often distorted
or destroyed by the government in ways we can hardly imagine.
Few in the West, I believe, understand what a massive and
cruel system of social control the One-Child-Per-Couple Policy
entails, a system marked by mandatory monitoring of women's
reproductive cycles, mandatory contraceptions, mandatory birth
permits, coercive fines for failure to comply, and in some
cases, forced abortion and forced sterilization.
Women who bear a child without a birth permit can be fined
up to 10 times their annual income, that is both husband and
wife, and those who cannot pay the fine can be forcibly aborted
or their homes smashed in. Group punishments are often used to
socially ostracize women who manage to bear a child without a
permit. Their colleagues and neighbors are denied birth permits
as well. If a pregnant woman goes into hiding, her relatives
are jailed.
In every country in the world the male suicide rate is
higher than the female, except China, where the female suicide
rate is three times higher than the male. The estimates are
that there are some 500 women who commit suicide every day in
the People's Republic of China. This is to say nothing of
gendercide, sex-selection abortion, to the point that in some
provinces, for every 100 boys today, only 71 girls are born.
Here, too, we see the dangerous development of rule by law, the
development of inflated structures which continually elaborate
rules and regulations of repression, and even shamelessly
posting them on the Internet.
Mr. Chairman, I do ask that the full statement be made a
part of the record. I asked that already. Again, I want to
thank you for having this hearing. I think it is very timely
and important.
Chairman Dorgan. Thank you very much, Congressman Smith.
Mr. Kamm, thank you for being with us. You may proceed.
Your entire statements will be made a part of the permanent
record.
[The prepared statement of Representative Smith appears in
the appendix.]
STATEMENT OF JOHN KAMM, FOUNDER AND CHAIRMAN, DUI HUA
FOUNDATION
Mr. Kamm. Mr. Chairman and distinguished members of the
Congressional-Executive Commission on China, it is good to be
with you again.
In 2008, more than 1,600 people were arrested for
endangering state security in China. That is more than double
the number in 2007. Endangering state security is the most
serious political crime in China, but it is by no means the
only crime for which people are detained by China's political
police. There are probably more people in China imprisoned
today for political crimes since the protests of 1989, and in
light of the disturbances that have rocked Xinjiang since July,
the number of political prisoners is expected to rise again
this year.
Despite a relentless search for the names of those
imprisoned, we know relatively few of them. The Chinese
Government rarely discloses this information. When they do, or
when NGOs get a hold of their names through other means, these
names find their way onto prisoner lists submitted to the
Chinese Government during the human rights dialogues that the
Chinese Government holds with foreign governments.
Prisoners who are on prisoner lists or whose names are
raised in meetings with Chinese officials tend to be better
treated and released from prison earlier than those whose names
are not known and not raised. They must remain at the center of
our human rights dialogue with China, another round of which is
due to take place either before the end of the year or early
next year.
It is vitally important that the State Department submit a
detailed, focused list of cases of concern well in advance of
the next round of the dialogue. We should use cases to
illustrate systemic issues, like reeducation through labor.
Interestingly, and for reasons that are not clear, the number
of people serving sentences in these camps appears to have
dropped over the last year.
Over the last 12 months, Dui Hua has obtained information
from central and local governments on 60 individuals detained
in political cases. In terms of the quantity and the quality of
this information, it represents an improvement over previous
years. Among other findings, Dui Hua estimates that there still
are around 20 people in prison for what they did on June 4,
1989. We urge the Chinese Government to release them.
The effort to win the release of prisoners relies not just
on the presentation of lists and the raising of names in
meetings with
Chinese officials. Over the last two years, Dui Hua has urged
the Chinese Government to issue special pardons to long-serving
prisoners--this is called for under China's Constitution--to
mark either the Olympic Games or the 60th anniversary of the
People's Republic of China.
Now, the Standing Committee did not issue a special pardon,
but over the last few days we have learned of some relatively
large-scale grants of clemency in the provinces to mark the
60th anniversary. It is not known at this point whether or not
any political
prisoners benefited from this clemency, but we have recently
learned of several sentence reductions for political prisoners
in August 2008 that were apparently linked to the Olympic
Games.
In my testimony, I discussed the legal experts' dialogue
between the United States and China. Three sessions of this
dialogue were held between late 2003 and mid-2005, and they
focused on sentence reduction and parole for prisoners
convicted of counterrevolution and endangering state security.
It appears that these talks have led to a relaxation of the
strict controls over sentence reduction and parole for these
prisoners, but they are still discriminated against. The issue
should be taken up again when the legal experts' dialogue
resumes.
Eliminating discrimination against political prisoners
represents one of the best ways to increase the number of
releases. Although China removed the crime of counterrevolution
from the criminal law in 1997, there are still as many as 100
counterrevolutionaries still in prison. This contradicts
Article 15 of the International Covenant on Civil and Political
Rights [ICCPR]. Urging China's ratification of the ICCPR with
as few reservations as possible should be a high priority of
our human rights diplomacy with China. We should use our
membership in the Human Rights Council to pursue this goal.
There have been a few positive steps in the direction of
greater transparency. I have already mentioned the willingness
of local authorities to provide information on prisoners. In
some provinces, courts have begun releasing verdicts.
Foreigners can attend trials in China, but rarely are allowed
to do so.
The number of executions remains a state secret, but the
recent admission that executed prisoners are the source of 65
percent of all organ transplants in China--and there were
10,000 transplants last year--is the first time that the
Chinese Government has acknowledged that thousands of people
are executed every year.
I am going to move to the end of my oral statement here. I
would say that reducing the use of the death penalty in China
should also be an important goal of our human rights policy.
I end my written statement by informing the Commission of
recent developments in the area of juvenile justice. Building a
comprehensive system of juvenile courts and ensuring protection
of the rights of juveniles by passing a juvenile criminal
procedure law are top priorities of China's legal reformers.
Dui Hua hosted a delegation of senior judges to study the U.S.
system, and we have been invited to send a return delegation to
China next year. We can learn from each other in certain areas,
and it is important to find areas where we can cooperate. If we
do, I suspect talking about those areas where we do not agree
will be easier.
I have enjoyed a close working relationship with this
Commission since its establishment. I am very pleased that you
invited me to testify again today. Thank you very much, and I
look forward to your questions and comments.
Chairman Dorgan. Mr. Kamm, could you just mention once
again the numbers on organ transplants? You talked about, 65
percent, or 10,000?
Mr. Kamm. Yes. On August 26, the Ministry of Health stated
that prisoners contribute 65 percent of organs transplanted in
China. There are 10,000 transplants a year. Now, a single
prisoner, executed prisoner, might--and in fact often does--
have more than one organ that is transplanted, so we cannot
just use the 10,000 transplants and come up with 6,500
executions. We estimate that about 5,000 people will be
executed in China this year. That marks a reduction; it is
significant, but it is still 5,000.
Chairman Dorgan. All right. Well, thank you for the
amplification.
Let me also say to you that you have been extraordinarily
helpful to the Commission.
Elizabeth Economy is--I have already introduced you--the
top expert in the United States on environmental protection and
climate change policies in China, so we are really pleased that
you've joined us. You may proceed.
[The prepared statement of Mr. Kamm appears in the
appendix.]
STATEMENT OF ELIZABETH C. ECONOMY, C.V. STARR SENIOR FELLOW AND
DIRECTOR FOR ASIA STUDIES, COUNCIL ON FOREIGN RELATIONS
Ms. Economy. Thank you very much, Senator Dorgan and
members of the Commission. It is a real pleasure to be here and
have the opportunity to discuss human rights and the rule of
law in the context of the environmental situation in China.
Let me just note the obvious, that China is facing an
environmental crisis. Levels of air and water pollution, as
well as land degradation, top world charts. Somewhat less
obvious are the critical ways in which the environment affects
human rights, the rule of law, and broader issues of
governance, and the ways in which human rights and the rule of
law affect the environment. So let me just tick off three of
these.
First, environmental pollution and degradation are having a
profound impact on the economic and public health well-being of
the Chinese people. The Minister of Environment, Zhou
Shengxian, has said that environmental degradation and
pollution costs the Chinese economy about 10 percent of its GDP
annually.
For farmers on the ground, this means that they don't have
clean water for their crops, or factory workers don't have
water to run their factories. Estimates are that by 2030 there
will be between 20 and 30 million environmental refugees within
the country of China, largely because of land degradation, so
people are losing their land, their homes, oftentimes because
of desertification.
The health of the Chinese people is very much at risk, and
here the Ministry of Public Health has been very active
recently in identifying the link between pollution and health.
The Ministry of Water Resources says 700 million people drink
contaminated water, water that has been contaminated with
animal or human fecal matter, on a daily basis, and 190 million
people drink water that is so polluted, that it is dangerous to
their health.
Recently, again, a study was done by the Ministry of Public
Health that said there has been a rise in cancer in urban areas
and in rural areas since 2005 of 19 and 23 percent,
respectively. This, they attribute largely to pollution.
Why the government cares about these issues is really not
so much because of the environment or because of the health of
the Chinese people, but because both of these issues contribute
to social unrest. In 2006, again, the Ministry of Environment
said there were 50,000 environmental protests in China in 2005.
Some of these are relatively small; a protest of 100 farmers
blocking a road because the water is polluted and spoiling
their crops; or it could be 30,000 people storming 12 chemical
factories, as happened in Zhejiang Province, because they
believed not only that the pollution from the factories was
spoiling their crops but also a particularly high rate of
spontaneous miscarriages was occurring among the young women in
their villages. These protests often turned violent. Recently,
there has also been a rise in urban environmental protests. I
am happy to discuss that, if you are interested.
The one way in which the two are related really is at a
very personal level for the Chinese people. More broadly, of
course, poor human rights, rule of law, and governance impede
effective environmental protection. There is a lack of
transparency in China. It is very difficult to get accurate
data.
We saw in advance of the Olympics that the city of Beijing
was willing to simply move the air pollution monitoring
equipment in order to get better readings and have more blue-
sky days. This is a challenge when you're trying to implement
effective policy; you do not have accurate data, you cannot
make the right policy decisions. Of course, poor accountability
and corruption is rampant. About half of the funds that are
targeted for environmental protection end up in projects and
other areas that are completely unrelated to the issue.
Finally, the topic here, rule of law. China's premier
environmental lawyer, Wang Cangfa, has said about 10 percent of
China's environmental regulations and laws are effectively
enforced. As we look ahead toward the issue of global climate
change, for example, this is a very important fact for us to
bear in mind in terms of what kind of partner China will be,
and what we are going to need to do to help China be a more
responsible partner.
On the positive side, I think the environment is really at
the forefront of governance reform. The first NGO in China that
was formally registered in 1994 was an environmental NGO,
Friends of Nature. There are now over 3,000 formally registered
NGOs in China, and groups probably doubling that number operate
unregistered. They do everything from environmental education
to protesting dams, mobilizing large-scale Internet campaigns,
and launching lawsuits against factories on behalf of pollution
victims. It is a very exciting and dynamic part of China's
civil society and of the environmental protection effort.
In addition, over the past two years, China has adopted a
system of specialized courts for the environment, with trained
judges and some trained lawyers, to focus solely on
environmental issues. Currently China has 3 of these
environmental courts, with hopes to expand to 12 courts. The
problem these environmental courts face right now is that
apparently they do not have enough cases to try, which is hard
to believe, but that is what they are saying.
Still, it is important to bear in mind that environmental
activists continue to get harassed and imprisoned. Tan Kai, Wu
Lihong, Yu Xiaogang, and of course Dai Qing, are all very well-
known activists who have faced house arrest, been imprisoned,
or been harassed. There continues to be a very fine line, an
often moving line, over what is acceptable in terms of pushing
for change in China and what is not. Again, I think the
environment is very much at the forefront of this reform
process.
So, finally, for the United States why does it matter to
us, in addition to our desire to promote human rights and good
governance globally? It matters because China is now the
largest contributor of the greenhouse gas, carbon dioxide; it
is the largest polluter of the Pacific; the largest importer of
illegally logged timber in the world; and generally, as its
multinationals are going abroad into Southeast Asia, Latin
America, and Africa, they are exporting many of what we would
consider to be worst environmental practices, thereby having a
very profound impact on the global environmental landscape.
What can we do about it? We need to think very
strategically about how we engage with China on this issue, and
I think the environment is actually the perfect area to
continue to promote rule of law and governance. This means
thinking more broadly. We have many small-scale projects that
deal with the rule of law and training of lawyers, led by
groups such as the American Bar Association, the University of
Vermont.
I think we need to work together to have an environmental
summit to bring together all of these groups that are engaged
in these efforts and figure out what the best practices are,
what works, and what does not work. It also means taking
advantage of interests in China. There are model environmental
cities. There is a Green Companies initiative with some Chinese
companies that want to do the right thing. We should not be
banging our heads against those in China that are not
interested, we should be partnering with those who are. They do
exist, and I think we need to spend more time identifying the
most proactive partners.
The last thing I would say is, I think there is a lot of
interest in China now in the area of public health and good
opportunities to work with China in this arena as well.
Thank you.
Chairman Dorgan. Thank you very much for your testimony.
Finally, we will hear from Donald Clarke, and then Gardner
Bovingdon.
Mr. Clarke?
[The prepared statement of Ms. Economy appears in the
appendix.]
STATEMENT OF DONALD C. CLARKE, PROFESSOR OF LAW, GEORGE
WASHINGTON UNIVERSITY LAW SCHOOL
Mr. Clarke. Thank you. Mr. Chairman, distinguished
Commission members, ladies and gentlemen, I am going to talk a
bit about lawyers and the state in China.
The relationship between lawyers and the state in China is
quite complicated, but I think it is possible to reach a few
big-picture conclusions, which I discuss in my testimony. The
basic big-picture conclusion is that the environment for
lawyers who get involved in cases or activities of any
sensitivity--and it is important to remember this is not a
large number--has, I think, distinctly worsened over the last
several months.
Since spring of 2008--I date my testimony from then because
there is a good report by Human Rights Watch which deals with
developments up to that time--the central and local governments
have taken a number of steps to discourage lawyers from
challenging the state in any significant way: formal and
informal measures to prevent lawyers from effectively
representing parties
involved in sensitive incidents, and then the de-licensing of
particularly troublesome lawyers and firms, sometimes through
active
disbarment and sometimes simply through failure to renew their
licenses at an annual renewal process. I have some examples in
my testimony.
One well-known example is that of the Yitong law firm,
headed by activist lawyer Li Jinsong. They represented Hu Jia,
the HIV/AIDS activist. They represented Cheng Guangcheng, the
well-known blind ``barefoot'' lawyer. Yitong was also behind a
move by some lawyers in the Beijing Lawyers Association to try
to bring more democratic governance into that organization.
In response to their efforts in that respect, Yitong's
license was suspended for six months. Originally Li Jinsong,
the head of the firm, thought that would cause the firm to
close down, but in fact the six-month period expired last month
and they seem to have reopened. So what their future is, it is
hard to tell.
A very well-known example occurred in July: the closing of
the Open Constitution Initiative run by Xu Zhiyong. Xu Zhiyong
was then himself, at the end of July, detained and subsequently
formally arrested on charges of tax evasion. He has been
released pending trial. That case is still unfolding and is
worth watching.
The Beijing Lawyers Association case is quite interesting,
and I have appended to my testimony three appendices which show
in English some of the documents involved in that case. A group
of lawyers issued a call for direct election of leaders, as
well as some other reforms that would have the effect, they
said, of taking power away from a small group of rich lawyers.
The Beijing Lawyers Association's leadership did not take
this challenge lying down and issued really a rather nasty
response, full of all kinds of very threatening language, with
vocabulary straight from the Cultural Revolution, accusing them
of ``stirring up rumors,'' of ``rabble-rousing,'' ``inciting
lawyers,'' the old lines about ``lawyers who don't understand
the true situation being misled,'' and all that stuff. Lawyers
were urged to maintain a correct political orientation and to
resist the blandishments of this minority. The lawyers did not
back down, but they lost. Again, the leading law firm behind
this, Yitong, was suspended for six months.
Several well-known lawyers, again, were denied licensing
when their annual inspection process came around. This includes
lawyers such as Li Heping and Teng Biao.
Then also, several authorities, state and quasi-state
authorities such as bar associations at the central and local
level, have issued rules. Again, we see a lot of these just in
the last couple of years, this year and 2008, essentially
requiring lawyers to report to local authorities and take
instructions from them when they are involved in handling
sensitive cases, sensitive cases being defined often as any
case involving 10 or more plaintiffs, obviously cases involving
state security, and sometimes cases involving land takings.
One thing that is difficult to know is what does all this
mean and why is the government engaging in this continual
harassment of lawyers? Does it mean that in fact lawyers can
serve some valuable purpose for their clients? Does this mean
that if you get a good lawyer in court, that you might actually
get off, and therefore this is why the government is standing
in the way of lawyers?
I think that is probably not the explanation. I think the
state's concern is less with what lawyers do in court than what
they do out of it. A very persistent concern of these
regulations we see is the concern about publicity and other
out-of-court ways in which lawyers can promote the interests of
themselves, their cause, and their clients. So the clamping
down on lawyers doesn't necessarily mean they were being too
effective as lawyers in courts, but I think it may mean they
were being too effective as social activists who happened to be
lawyers.
Now, I was also asked, just moving away from lawyers, to
say a few words about the relationship between economic crime
and state security, particularly with respect to the Rio Tinto
case. As Commission members I am sure are aware, there has been
quite a bit of concern in the international community about the
detention, and subsequent formal arrest, of Stern Hu, formally
a PRC citizen, a naturalized Australian citizen, and Rio Tinto
employee. He was first charged with espionage and theft of
state secrets. These charges were later downgraded to charges
of commercial bribery and theft of trade secrets.
Then the question on everyone's mind is, does this mean it
is personally unsafe to do business in China? I do not have a
solid answer to this question, again, and that is partly
because we do not know the merits of the underlying charges.
If Rio Tinto was a normal business, certainly it is always
going to be engaged in trying to find out information related
to its business. Maybe it did nothing that would be unlawful in
any country, maybe it did something that would be unlawful in
any country, and maybe it did something that may not be
unlawful in most countries, but is unlawful in China. The
Chinese authorities have not, to my knowledge, made the
specific factual allegations behind the charges, so we do not
know yet. Obviously if the case ends as obscurely as it began,
then there will be good reason for concern.
But since I can't say much about the substance, I thought I
might say a few words about the process. My conclusion here is
that the case does not at this point indicate that conditions
have deteriorated, although partly this is because there were
already some problems beforehand.
There is a long history in post-Mao China of
criminalization of commercial disputes. The Rio Tinto case is
certainly not the first. It is not surprising to read reports
in local newspapers about the Public Security Bureau helping
out a local company by detaining a business rival. Usually the
detained person is ethnically Chinese. They may or may not be a
Chinese citizen.
I think they are particularly liable when they happen to
have been former Chinese citizens. Detention of non-ethnic
Chinese, in a kind of perverse reverse racism, seems to be
rather rare, although not unheard of. What makes the Rio Tinto
case unusual then is not that a foreign businessman of Chinese
ethnicity has been detained, but that the case has been so
high-profile.
There are a couple of other rather odd features about the
case maybe that are worth noting. First of all, bribery
prosecutions in China tend normally to focus on the recipient
of the bribe, not upon the alleged bribe-giver. Second, given
that the target of the allegations is really Rio Tinto--in
substance, it is being alleged that Rio Tinto, the company, is
behind this--then why have only individuals been targeted and
not the company itself?
I should note that the authorities seem to have been very
careful to follow legal procedures. I checked the timeline of
Stern Hu's detention against the consular treaty between the
People's Republic of China and Australia and they seem to have
given notification in accordance with the provisions of that
agreement, although stretching them as long as they could, and
I am not aware of any other procedural violations that have
been claimed in matters such as giving notice of charges or
providing access to counsel.
One thing we do not know--or at least I do not know, in any
case--is whether there has been any division within the Chinese
Government on this case. It is possible that the security
services need to show that they are indispensable by making
periodic high-profile arrests, and then of course once the
action has been taken it is very difficult for the government
to back down, even if other agencies think it was a bad idea.
Certainly it will be very difficult at this point for the
government to say it was all a mistake, sorry about that, and
drop the charges, but ultimately, unfortunately, not much can
be said until the government presents its evidence publicly and
we know the sentence imposed. Again, if we never see the
evidence, which again may be possible, then it would be
legitimate to draw unfavorable conclusions.
Thank you very much.
Chairman Dorgan. Mr. Clarke, thank you very much.
Finally, Mr. Gardner Bovingdon.
Mr. Bovingdon, you may proceed.
[The prepared statement of Mr. Clarke appears in the
appendix.]
STATEMENT OF GARDNER BOVINGDON, ASSISTANT PROFESSOR, INDIANA
UNIVERSITY, BLOOMINGTON
Mr. Bovingdon. Mr. Chairman and distinguished members of
the Congressional-Executive Commission on China, thank you very
much for the opportunity to come here and speak today and
participate in this very important event.
I would like to begin by observing, as I do in my written
testimony, that Beijing has long challenged the assertion that
there are universal human rights. The mildest objection has
been that different cultures define human values and rights
differently and these differences need to be respected. This
line was advanced in the 1993 Bangkok Declaration on Human
Rights, to which Beijing was signatory.
Some critics have more sharply denounced Americans'
criticisms of China's human rights record as interference in
China's internal affairs. Chinese officials have long worried
that foreign governments, including the U.S. Government, have
invoked concern for human rights in China as a cloak for
attempts to bring about peaceful evolution, which is an older
expression, or the newer color revolution, both euphemisms for
regime change.
Similarly, officials have worried, since at least the mid-
1990s, that behind criticisms of human rights abuses in Tibet
and Xinjiang lie plots to separate these territories from
China. We do well to acknowledge these concerns, and therefore
must take pains to avoid even the appearance of raising the
matter of human rights to serve other strategic aims.
When we speak of human rights we ought to focus, first and
last, on ``the conditions of human flourishing, on the dignity
and the worth of the human person,'' as the visionary Universal
Declaration of Human Rights puts it, and not on scoring
political points.
I begin my remarks with these general points about the
issue of human rights in China, despite the fact that I intend
to speak specifically about Xinjiang and the condition of
Uyghurs, because I have long found it remarkable how closely
political events--and we might say political problems,
including human rights problems--in Xinjiang track those in the
country as a whole.
To wit, despite the fact that Xinjiang is described
officially as an autonomous region, its politics, its
governance, and so forth very closely resemble those at the
national level, leading one to ask quite seriously what degree
of autonomy people in Xinjiang enjoy.
This summer, on July 5, there was a major political event
in Xinjiang. We unfortunately do not know enough to say for
certain how the events unfolded, and I say more about this in
my written remarks. I think it's safe to say at this point,
though, that they began with a political protest, a peaceful
protest, connected with the mishandling, or perhaps the
squelching, of information about an event in Shaoguang in
Guangdong Province in the previous month when a factory brawl
resulted in the death of 2 Uyghurs and the injuries of at least
100 more.
At some point in the day, regular police and the People's
Armed Police intervened, and one of the major questions that
remains is whether violence by protesters led to police
intervention or whether, rather, police intervention provoked
peaceful demonstrators into committing violence.
As one might expect, the Chinese Government has argued that
the police intervened after the violence to suppress it, and
much of the Chinese official case about what happened and how
to handle what happened on that day has rested on that
contention.
Outside observers--in particular, Uyghur organizations and
human rights groups--have argued to the contrary, that the
peaceful protests turned into a violent riot, or violent riots,
only because of the police intervention. As I say, we do not
have enough information about these events to decide one way or
the other, and unfortunately I do not think we will anytime
soon.
I raise this event, despite the fact that there's a whole
year of events in Xinjiang to be considered, because I think it
sort of signally indicates some of the problems with human
rights that we have to be concerned about in this region.
I would like to point out, first, that there are some small
reasons to have hope about improvements in the human rights
situation in the region, one example of which is the release of
the Uyghur economist and Beijing professor, Ilham Tohti, who
had been detained once previously in connection with his blog,
and was detained again after the July 5 events on the
suspicion, on the contention that he had helped organize the
event.
We have been charged with talking about how the United
States can hopefully engage. Mr. Kamm has already pointed out
that the United States has helped the plight of political
prisoners and detainees by making it known that it is
concerned, and in this case it is widely thought that the Obama
Administration's expression of concern led to Tohti's release.
Similarly, within only a few hours after the emergence of
the events on July 5 this summer, Beijing made the happy
decision to invite foreign reporters to Xinjiang to observe and
inquire about what had taken place. I think this stands in
marked and happy contrast to the media blackout that followed
the Tibet protests of 2008. It is to be celebrated, and one can
hope that Beijing will take this step in future episodes,
should they have them.
On the other hand, there is plenty of discouraging news
about the human rights situation in Xinjiang that we can glean
from these events and their aftermath. First of all, within
hours of receiving information that there were protests taking
place in Urumqi, the government in Beijing decided to shut down
Internet service, to curtail cell phone service, in particular,
to close down the capacity to make international calls, and to
close various text-messaging services.
The expressed reason was that the government was worried
that various malign perpetrators were using these means to
circulate information about what was going on and to drum up
participation. I think we can easily imagine other purposes.
One reason that I think we are entitled to imagine that other
purposes include a desire not to have information about these
events get out from the region to other parts of the country
and abroad, is that in that service, at least at major news
sites and government sites, continues to be closed down. I
checked this morning and confirmed that various sites in
Xinjiang remain closed, and it's hard to understand why they
would remain closed all this time later if the principal or
sole concern was to prevent further violence.
Next, we would want to observe the wide and rather
indiscriminate use of detention and arrests in response to
these political protests. Mr. Kamm has already spoken about
political prisoners. Unfortunately, as he mentioned, a
substantial proportion of political prisoners in recent years
have been Uyghur.
Let me just hit some bullet points.
As Professor Clarke was mentioning moments ago, lawyers
have received pressure when they consider taking on cases with
human rights implications. This has unfortunately been the case
in Xinjiang, where lawyers have been instructed to exercise
extreme caution taking on cases, and to submit to supervision
from digital organs, the very clear aim being to prevent them
or to discourage them from engaging cases with human rights
implications in the aftermath of these events.
I want to close, finally, by pointing out that there has
always been a problem with how we understand human rights, a
problem with policy implications. That is whether we think that
they inhere in individuals only or whether they also inhere in
groups, because if they do inhere in groups then there are
other issues we might want to raise, such as, for instance,
those of political representation, how well and in what way
Uyghurs' political aims are represented in government and party
organs, also the matter of language use, about which I can say
more in the question period, and then finally the broader issue
of cultural integrity. Once again, I thank you for the
opportunity to speak and I welcome your questions.
[The prepared statement of Mr. Bovingdon appears in the
appendix.]
Chairman Dorgan. Mr. Bovingdon, thank you very much for
your testimony.
Mr. Kamm, as you know, the Commission maintains a database
of political prisoners. In fact, I didn't hold it up, but this
is a printed copy of the Commission's database of political
prisoners. It's pretty ominous when you think that each of
these pages contains multiple names of prisoners, with dates.
It is perhaps the best compilation in the world of this kind of
information. It is very important to maintain.
These individuals have been imprisoned for exercising civil
and political rights under China's Constitution and laws or
under China's international human rights obligations.
You have provided information to us and been helpful to us
with respect to this information. We have previously had
discussions about Mr. Gao. Do you have any additional
information about Mr. Gao?
Mr. Kamm. Yes, Mr. Chairman. Before I convey that
information to you, I would like to acknowledge and recognize
the efforts you have made on behalf of Mr. Gao and his family.
If he survives this ordeal, it will be, in my opinion, no small
measure due to your relentless efforts on his behalf. So, thank
you for that.
You probably know, as other Commissioners know, that for
almost 20 years now I have been engaged in a long-running
conversation with the Chinese Government about their prisoners.
I understand I am one of the few people that they regularly
talk with about their prisoners and provide information on a
regular basis. As I just mentioned in the testimony, we have
received information on 60 different cases over the past year.
One of the channels for this information--just one of the
channels--is the Chinese Embassy. Yesterday, at one of my
regular meetings with the Embassy, I was provided with the
following information on Gao Zhisheng. I understand this is the
first time the Chinese Government has provided information on
his current situation.
I was told that Mr. Gao was permitted to return to his home
village in Shaanxi Province at the end of June to pay respects
to his ancestors. As you may know, it is a traditional Chinese
custom that, twice a year, you attend to the graves of your
ancestors. So he was permitted to return to his home village at
the end of June. The official went on to say that he has not
been mistreated, he's fine, and that he is not subject to what
was termed ``compulsory'' legal measures. I am just relaying
what was said.
Now, apart from the Chinese Government, we do have one
other bit of information about Mr. Gao, and it has been
released by his friend and lawyer Teng Biao on his blog, so
it's in the public record, although not necessarily easily
accessible. Mr. Teng has reported on his blog that, in July,
Mr. Gao was allowed to make a phone call to a relative. So what
we can, I think, reasonably conclude from this is that, as of
10 weeks ago, Mr. Gao was alive. That's the good news.
Unfortunately, we still do not know his whereabouts. There
is still a great deal of concern for his well-being, obviously.
Finally, we have no idea on what basis he is being held. We are
basically being told that he is not being held by legal means,
which leads one to a conclusion that however he is being held
is not legal. So that's basically the information. It's the
first information we've had in many months of trying.
I would just close very quickly by pointing out--and
especially with Mr. Smith here I feel compelled to do so--Mr.
Gao is by no means the only person who has been disappeared in
China for a long period of time. This is the 12th anniversary
of the disappearance of Bishop Su Zhimin. He has been
disappeared for 12 years. He is the leader of the Catholic
underground church in China. I certainly hope that this is not
Mr. Gao's fate, and that with your efforts he will be free long
before that.
Chairman Dorgan. Mr. Kamm, thank you very much for that
answer. In some ways it is encouraging, because we don't know
the whereabouts of Mr. Gao, we don't know what he is charged
with. We do know that he was abducted from his home after his
family escaped China. We do know that he has previously been
incarcerated and tortured in China, and we also know that his
behavior was the behavior of a lawyer who had a law office,
doing professional work in support of people who needed the
help of a lawyer, and for that he apparently has been once
again incarcerated.
Our intent obviously is to shine a light into the darkest
cells in China to provide some hope to those who have been held
and detained, in many cases for many years, and in some cases
tortured for believing in basic human rights for all citizens
of China. So I appreciate your comments.
I would say to the Chinese Embassy here in the United
States, the responses I have received from them about Mr. Gao
are wholly unresponsive and unsatisfactory to me and to this
Commission. We would hope that the Chinese Embassy and the
Government of China would take seriously our concerns about Mr.
Gao, and we hope for some additional information. But we thank
you very much for providing the information you have provided
to us today.
Ms. Economy, we hear a lot these days, especially in the
context of the debate over climate change in this country, that
we had better hurry because the Chinese are moving very quickly
toward a green economy. They will become the leaders of green
jobs in a green economy, and all the new technology and so on
if we do not rush very quickly. In fact, it may be too late
already. You have heard all the dialogue, and so on.
As I understand your testimony, you are saying China has
passed over 100 environmental laws, hundreds of regulations,
but the challenge is implementing them. Then I would also say,
in the context of your answering me, you know that President
Hu, in a speech at the U.N. Climate Change Summit, stated that
China will ``endeavor to cut carbon dioxide emissions per unit
of GDP by a notable margin by 2020 from the 2005 level.''
So tell me, you are the expert in our country about these
issues. Tell me what is happening in China. Are they taking a
lead? Is this serious? Are they on the level? What is going on?
Ms. Economy. Thank you very much for that excellent
question. I think there are two things that are going on when
we hear and read about China taking the lead in terms of
transforming their country into a green economy, taking the
lead globally. On the one hand there are many actors in the
international community who like to encourage China by
applauding them before they actually take action as a mechanism
for encouraging them to then take the action. I think in many
cases people get ahead of themselves.
The international reaction to President Hu's speech is the
perfect example of that because reducing carbon emissions per
unit of GDP is really nothing more than what they already have
outlined in their Five-Year Plan. It's nothing new. People
mistook it also for cutting carbon emissions rather than
cutting the growth in carbon emissions, two very different
things. So I think it is important to look very closely at what
President Hu has promised, and then again at the reality of the
situation.
I think the other thing that people often mistake is the
fact that China is already a leader in manufacturing, for
example, of photovoltaic cells. About 97 percent of the
photovoltaic cells China produces is exported. So, yes, they
are a leader in manufacturing. But they are not a leader in
actual implementation. Furthermore, when you look at China's
implementation of environmental technologies writ large,
putting aside what might be relevant to global climate change,
there was a great MIT study that just came out last year on the
implementation of China's regulation in desulfurization
technology for coal-fired powerplants. This technology limits
SO2 and acid rain. They found, in the 85 powerplants that they
surveyed, virtually none of them actually used the scrubbers
that were there because they lower the efficiency of the
powerplant making it more expensive to operate.
Frankly speaking, we ought to be concerned about our
competitiveness. We ought to be moving very quickly ahead on
pursuing green technologies for our own economy, for our own
jobs, for our own manufacturing center here in the United
States. However, I do not think that we are going to be looking
at China as a leader on the issue of global climate change
anytime soon.
Chairman Dorgan. I had read that the Chinese emit twice the
amount of CO2 per ton of steel produced than the United States.
Do you know whether that's the case?
Ms. Economy. I would guess--I haven't heard that precise
figure, but in general, Chinese industries use between four and
seven times more energy than those in the United States and
Japan, so that seems like a perfectly reasonable assumption to
make, although that is an area that they are targeting very
heavily and the Japanese are helping them a lot, with improving
the energy efficiency in their steel industry.
Chairman Dorgan. Two other very brief questions and then
I'm going to call on my colleagues and that will end my
questioning.
The increase in arrests last year, 2008. Could at least a
portion of that be attributed to the Olympics? Can anyone
answer that?
Mr. Kamm. Certainly there were detentions and arrests
around the time of the Olympics, but I really think last year
the main reason was the disturbances in Tibet. A great many
people were detained and formally arrested, charged, and tried.
So you would see those in the 2008 numbers. And in Xinjiang.
Very interestingly, in November, an official in Xinjiang gave
some numbers for the number of people arrested in endangering
state security cases in Xinjiang, and it was a very big number.
Chairman Dorgan. I thought I had heard that endangering
state security was some of the general charges of people they
rounded up during the Olympics because they didn't want them
around when a bunch of visitors showed up.
Mr. Kamm. Yes. And petitioners as well. You see, what
they've done--without going into a lot of detail--they've
restricted the use of ``endangering state security'' to the
most serious political crimes, but then you have the whole area
of ``disturbing the social order.'' So, for instance, Falun
Gong. Most Falun Gong practitioners are charged with disturbing
the social order. In the old days before they took
counterrevolution out of the criminal law, Falun Gong would
have been considered a counterrevolutionary group.
Chairman Dorgan. All right.
And finally, Mr. Clarke, are those who are in law schools,
do you think, in China and on the road to becoming lawyers, are
they observant of what is happening to lawyers like Mr. Gao who
have their law firms shut down and their licenses suspended and
thrown in prison? Does that have a substantial chilling effect,
despite what they're being taught in law school about
guarantees for prisoners and so on? Tell me, what are the
consequences of that with those that are being trained in the
law?
Mr. Clarke. I have to plead a little bit of ignorance on
that. I don't have a really solid answer to that. My guess
would be that there is a group of law students who are of
course quite idealistic, as there are in any country. But I
think it would be a mistake to think that the vast majority of
law students are idealistic and are looking at this kind of
thing, or even particularly worried about it. I think a lot of
people's ambition is to try to have a good life for themselves
and to get along.
If I could just supplement a bit what John just mentioned.
One of the differences also between locking people up under the
rubric of endangering state security and doing it under this
general rubric of disrupting social order is that a completely
different procedure applies. Endangering state security is a
criminal charge. If the issue is people such as Falun Gong
adherents, if you can say it's something like disturbing social
order, then you get to use the extremely elastic and forgiving
rules of reeducation through labor, which is an utterly
different procedure and really has very little realistic chance
of an appeal.
Chairman Dorgan. All right.
Congressman Walz?
Representative Walz. Thank you, Mr. Chairman. Again, thank
you all for your continued work. Just a couple of questions.
Mr. Kamm, we were talking on the prisoner list, and I
appreciate your work on this. You mentioned in there how to get
that more refined, focused, and better. Are we doing it right
or is there something else you'd rather see? How do we make
this list even better? In addition to trying to capture
everyone, how do we make it better, in your mind?
Mr. Kamm. Well, again, I would look at systemic issues and
then raise cases. Now, Congressman Smith just talked about
forced abortions and sterilization. Where women are in prison
or in RTL, reeducation through labor, for violating birth
control policies we can explore a systemic issue by raising
cases. There's an expression in Chinese, yi an shuo fa, which
means speak about the law by referring to cases. I use it all
the time when I speak to the Chinese. That's one example.
I just mentioned reeducation through labor. So when we talk
about the systemic issue of reeducation through labor, we ask
about a dozen or two dozen examples. So this is a way of tying
cases to systemic issues. Often I and others are criticized as
being focused on individual cases and not talking about
systemic issues. One way to get around that is to use cases to
illustrate systemic issues.
Another very good example is the death penalty, but in
those cases, of course, I'm afraid it's usually too late to
raise the prisoner's name. But last year there was an unusual
case that enabled the outside world to actually have a look at
how capital punishment is carried out in China, and last year
we had one such case, a man who, for endangering state
security, was executed.
He was the father-in-law of an American citizen and the
daughters were EU citizens. It was quite a case. But because of
his children's brave actions, we were actually able to track
that case right through the process of the man's arrest, trial,
appeal, review, and finally execution itself, and we learned a
lot. So that is what I would do a little different than we're
doing now.
The other thing, if I may, very quickly, more and more, Dua
Hua's lists are focused on provinces, that is, we take a
province and we build a list of 15 or 20 names in that
province. That, too, is a good way to go forward. There is
considerable differentiation in how prisoners are handled at
the provincial level in China. The regulations on sentence
reduction and parole differ from province to province, so
again, what we've been doing is getting information from
provinces. Over the last year, I think we received information
from seven different provinces.
Representative Walz. Well, I appreciate it.
Let me segue a little bit to you, Mr. Bovingdon, as a
teacher and someone who did some work in genocide studies, your
excellent preparatory set on human rights and this issue of
group rights and teaching of the universal declaration, as
we're required to do.
My question is just an observation from you of what you've
seen. Being in Tibet and in Urumqi in the 1990s--I was in
Urumqi six, seven years ago--how different is it today, in your
opinion? What I saw was not just modernization. I saw the
cultural shift, or the culturacide, if you may, in both places.
Would you say that that's coming to a peak? Is that the
realization of what's happening amongst Uyghurs and amongst the
folks in Urumqi?
Mr. Bovingdon. It's an excellent question. It's also hard
for me to answer, and I'll explain why. First of all, I wasn't
there when you were in the 1990s. I first went to Urumqi in
1994. I have never been to Tibet, although I have many
colleagues who have.
I can certainly say that in the time that I was able to
visit that region, I observed dramatic change. The most
obvious, if one came in on a helicopter, for instance, would be
the architectural change of the city. Enormous districts with
old-style Uyghur buildings were simply razed to the ground and
replaced with highrises and modern apartments, much more
expensive than their predecessors. Old, small shops were
replaced with large, modern-style shopping malls. I think the
economic and cultural implications of these architectural
changes are clear.
Another thing that many observers have pointed out is that
the demographics of Xinjiang have changed dramatically. In
1949, about three-quarters of the population was people we now
know as Uyghur, and today, officially they number about 43
percent, although the figure is probably lower than that. There
are some reliable demographers who suggest that the Han
population in Xinjiang is now over 50 percent. It is
unambiguous, the Han population in Urumqi and other large
cities is very substantial. Urumqi is over 75 percent Han at
this point.
Representative Walz. Yes.
Mr. Bovingdon. So these are two of the most conspicuous
changes one can see.
Representative Walz. That pattern is very similar to what
happened in Lhasa. Very similar. Okay.
A couple of questions, Dr. Economy. I appreciate your work
on this, this issue of environmentalism and trying to bring
China in, as I said, as we all try and work together. We have
all seen the nightmares. I've been to the electronic dump sites
in Guangdong Province. But we are culpable in that. Our
culpability is very high in that, this issue of this
interconnectedness as we deal with climate change, as we deal
with ecosystem degradation.
I had the chance last night--I was speaking--it was Klaus
Schwab and his folks from the World Economic Forum. Is that the
right forum to get this done? Is that the right way to carrot
and stick at the same time, as they're starting to bring in
their 85 or so different issues, much of it focusing on climate
as it comes together with economic development? Do you think
that is a way to go to get this, other than you won't dump
computers even though they're our computers and we don't want
to dump them here, type of thing?
Ms. Economy. Just to clarify, your question is whether the
World Economic Forum and their effort----
Representative Walz. Yes. Do you think that is the right
forum to effect positive change, in your mind as you see this?
Ms. Economy. Since I'm part of the China Council for the
World Economic Forum.
Representative Walz. Which I did not know, so it wasn't
planned.
Ms. Economy. So there you go. I would like to say yes, yes,
indeed.
Representative Walz. Okay.
Ms. Economy. I think it's a good way to move forward. I
think the challenge for the World Economic Forum, and in
general, again, is in moving from what are really good
discussions with really smart people to actually getting things
done. The advantage of the World Economic Forum is that you not
only have thinkers but you also have many companies involved,
many great corporations.
Representative Walz. Is it your experience the Chinese are
less resistant when it comes from that forum?
Ms. Economy. Certainly, because they are lauded at every
turn. I was just in Dalian for the meeting of the World
Economic Forum and it was really a grand celebration of China.
So I think they are very warm and welcoming for the World
Economic Forum and the way that the World Economic Forum
couches its messages. Yes.
Representative Walz. Well, I appreciate that.
I yield back, Mr. Chairman. Thank you.
Chairman Dorgan. Thank you very much.
Congressman Smith?
Representative Smith. Thank you, Mr. Chairman.
Let me, first of all, Mr. Kamm, thank you for your
tremendous, extraordinary work on behalf of prisoners. I think
your answer to Mr. Walz was a very fine way of setting up how
we ought to be talking about prisoners, and doing it
thematically. You talked about a thousand prisoners, and you've
gotten responses for about half of those, over half. That is a
remarkable record. Congressman Wolf and I, actually right
before the Olympics, brought the Commission's list of prisoners
with us to China. We haven't gotten word back on a single
prisoner and it is not for trying.
You mentioned Bishop Su of Hebei Province. I actually met
with him in the early 1990s and he celebrated mass in a very
small apartment, only to be recaptured, reincarcerated, re-, we
think, tortured, because there were some sightings of him with
puffed up cheeks and very significant harm having been done to
him.
I raise Bishop Su's case every time I have a meeting with
any Chinese leader and they either ignore it or say they'll get
back and they never get back. So we don't know if he's dead or
alive. But it's emblematic, I think, and symbolic, if you will,
of just how much they have tried--they being the Beijing
dictatorship--to crush religious belief outside of the patriot
church, outside of the officially recognized churches.
This man was perhaps the kindest, gentlest man I have ever
met. His eyes were crystal clear. He had no animosity
whatsoever toward the Chinese. He had already spent decades in
the prison camps, and he told me how he prayed for those who
were following the dictates of the Scriptures, for those who
maltreated him, and prayed for his people. It was moving. Yet,
they severely mistreat this man. So, thank you for raising his
name again at this hearing, and for the tremendous work you do
on political prisoners.
You mentioned the signing of the International Covenant for
Civil and Political Rights. It seems every time a Chinese
leader makes his way to Washington, there's a new buzz about
how, when they signed it, or they were going to sign it, then
they signed it, and no ratification. We'll probably hear about
a potential ratification next time somebody comes to the United
States. They seem to be gaming us, and we keep taking the bait.
I am worried--and if any of you would want to touch on
this--has our super-reliance on the Chinese buying our debt
either silenced or muted our voice on human rights? It seems to
me that when Mrs. Clinton--and I say this with all due respect
to the Secretary of State--en route to China, said we will not
allow human rights to ``interfere with global climate change,''
which I am very concerned about, and other issues, the debt
being another one, it is as if it was put, not in the back of
the bus, but off of the bus. They take their cues, I think,
from how we regard it. So, our reliance on debt, what is that
doing to our dialogue in human rights?
Second, and Mr. Clarke, you might want to speak to this as
well, or any of our distinguished panelists, I remember when
Rebiya Kadeer first came out, and she, like Wei Jingsheng and
others, couldn't be more emphatic that forced abortion is one
of the cruelest crimes against women imaginable, and both of
those individuals were shocked that we never talked about it
here, except in a very limited set of circumstances. It wasn't
like it was a mainstream human rights abuse. They thought that
we all knew about it and were very well-versed in it, and so
many Members of Congress, frankly, are not.
If a woman in China gets pregnant without having secured
permission from the state and is ordered to abort her child
against her will, does she have any legal remedies available to
her, and have any of our U.S. lawyers or the dialogues, the
programs we participate in, explored ways of legally assisting
a woman who is in that situation, to say we're here to be your
advocate? The United Nations has dropped the ball.
All of the expert bodies have yet to take up, including the
Human Rights Council, these crimes against women and against
children. It seems to me that in our dialoguing with lawyers,
we know about Chen Guangcheng and the price he's paid, but it
seems to me it would be a great place, an entry for saying,
let's take up these cases. If a woman is willing to stand up
and say I want this child not to be killed, we should stand
with her.
Then finally, on the whole issue of the prisoners you
mentioned, Mr. Kamm, who were executed to get their organs, 65
percent of the organ transplants being derived from there, I
had a hearing in May 1997 on the very issue. Harry Wu actually
brought in a man who had documentation that was very
significant that showed that prisoners were being shot, but not
killed. Ambulances were waiting--and he had pictures of all of
this and it seemed very credible--in order to take their
organs.
The Chinese Government said it was a lie, it was
misinformation. Now they're willing to say at least 65 percent
of those organ transplants are derived from prisoners. Why the
change? Do they feel that the atmosphere has so changed and
nobody cares? What would be your reason? I mean, that hearing
to me--the man who gave the testimony, we did it behind a
screen so there wouldn't be retaliation. I mean, it was very
cloak-and-daggerish, if you will, to protect his identity.
Harry Wu, again, was the one who helped get him out. The
Chinese Government said no way, and now they're admitting it.
If you could give any thoughts on that. Did you want to touch
on that?
Representative Walz. If I may, this is an interesting
point. When I was living in China in 1989, I had a friend who
was a physician and was trying to secure permission. He asked
if I would like to go to one of these executions. I'm not quite
sure why he assumed that I would participate in that. But it
was absolutely no secret whatsoever. At that time it was
happening he was doing kidney transplants, and he thought
nothing of it. This was a good man, but the system was so
prevalent, as my colleague is saying, that it was common
knowledge. So I'm very interested in this, too. What's changed
in, now, something that all of us knew was there, and now
they're willing to say, yes, it's happening?
Mr. Kamm. It's a fascinating development, and I wish I knew
why. But it's quite a striking admission after years and years
of denying it was going on. As I say, the number of executions
is a closely guarded state secret, on a level with the number
of nuclear warheads. It's a very serious top secret.
So when you make this kind of a statement, you are all but
admitting that thousands of people are being executed every
year, which is what the human rights groups have been saying
for a long time. Why make this admission? I wish I could tell
you. Why do they tell me about prisoners? I'm always asked
about that. Why yesterday, finally, after eight months, do they
reveal something of importance and interest? I really don't
know. It's just, I guess, something I've been doing for so
long, that that's what I do and they interact with me in that
way.
If we can be hopeful, the greater the transparency, the
faster that human rights reform will come. The Chinese
philosopher Confucius, over 2,000 years ago, spoke about the
need for transparency in government. It's a longstanding
traditional Chinese virtue in the area of governance.
I hope we're going to see bigger steps in the direction of
greater transparency. And if there is one thing we can do in
our work with China, whether it's the human rights dialogue or
the legal experts' dialogue, or any other dialogue, the number-
one priority should be to promote transparency, because when
the Chinese people themselves see things, they themselves will
be tempted to move in the direction of reform. So,
transparency, number one.
Chairman Dorgan. I want to allow Mr. Honda to ask a
question as soon as you are done, Mr. Smith.
Representative Smith. If you could, on the training up of
lawyers to help women who would like to fight to preserve the
life of the child within them.
Mr. Clarke. Sure. I can say a few words about that. Forced
abortions, technically under Chinese law, are not permitted. I
mean, if it were forced, it would count as an assault under the
Criminal Law of the People's Republic of China.
However, as a practical matter, there aren't really any
legal remedies. So a court could not step in, a court would not
step in in these cases, I think. This is precisely the sort of
thing that got Cheng Guangcheng into trouble. Part of the
reason is that local officials are graded very strictly on the
number of extra-quota births in their district. Nobody wants to
know why there were extra-quota births. The point is, if there
are any, that implicates what is called the ``one-vote veto.''
No matter what else they might have done in their district, if
they have out-of-quota births, I believe that that prevents
them from advancing further. But perhaps any of the other panel
members who know the system for grading Chinese officials a
little more intimately than I do can speak to that.
I do want to address your first question, even though I'm
not an expert on international finance. For that question, do
we in fact rely on China to buy our debt, I think you really
need expert testimony. But here's what I think an expert on
international finance would say, since I've done some reading
on this.
That is, of course you have to be nice to your banker, but
only if two conditions apply, which are: (A) your banker has
many choices about to whom to lend; and (B) you have no choices
about from whom to borrow. I don't think either of those
conditions actually hold. China really doesn't have a choice
except to lend us this money. They will be able to choose not
to buy U.S. debt at the same time they choose not to run a
large bilateral trade surplus with the United States. So China
really doesn't have any choice. There's no other place for
those dollars to go.
Second, with the U.S. savings rate rising as it is, the
deficit does not need to be funded by the Chinese, it can be
funded domestically. So those are my very brief, inexpert
answers. But I do not think that we in any sense need to be
nice to China because otherwise they will stop buying our debt,
because I don't think they're in a position to choose simply to
say, we're going to stop buying American debt.
Representative Smith. Thank you.
Chairman Dorgan. Congressman Honda?
Representative Honda. Thank you, Mr. Chairman. I appreciate
the experts here.
Mr. Chairman, if I just may ask my questions. I have to go
and defend my bill in five minutes. Then I'll get my answer
through the transcripts and I'll chat with my colleagues also.
But a couple of questions, and they're related. Yesterday I
had an opportunity to chat with the Dalai Lama. I think in
prior CECC meetings we spoke of Tibet, the Dalai Lama, and the
PRC Government, and the friction that exists between the
government and the movement that the Dalai Lama is the head of.
It seems to me that when I met with the embassy folks from
the PRC, the final conclusion I came to was that they're more
afraid of the Dalai Lama's area of religious influence that he
has, which appears to be about a fifth of China's land mass
rather than just Tibet itself. I was wondering how one can be
effective in promoting some access or some process of
confidence building and trust building between the two parties.
That's my first question.
The other is, we've had pretty important recent
opportunities to partner with the PRC on renewable energy
technology where Commerce Secretary Locke and Energy Secretary
Chu went to China and came back with a potential agreement,
being able to establish a Memorandum of Understanding in
developing technologies together, solving some of the thorny
problems of global warming, but solving in a way where we will
be working together with them, developing technologies and
sharing the intellectual property rather than protecting and
fighting with each other.
Do you see this process as a model where we can start to
look at developing not only trust, but a better working
relationship? Because I suspect that they also do not trust us
in terms of some of the things that we criticize them for. We
were the first to be polluters, and now they're catching up,
for the very same reason: the thirst for energy. We have green
technology. They need it, and we need to share that. The
dynamics aren't simple, but I suspect that we're capable of
solving it if we put our minds to it.
So I was hoping that maybe you might be able to comment on
some ideas or thoughts that you may have had relative to this,
building this mechanism with trust that will permeate in other
areas of both societies. I'll read my answers in the
transcripts. Thank you.
Mr. Bovingdon. Representative Honda, thank you very much
for those interesting questions. I will attempt to address the
first one about Tibet. I'm afraid it's hard to be very
optimistic that the United States might somehow encourage China
to engage with the Dalai Lama and the Tibetan government-in-
exile in a more extensive and positive way, for the following
reason: though the Dalai Lama announced in Strasbourg in 1988
that he no longer advocated independence for Tibet, and he has
for years called merely for full autonomy or a substantial
degree of autonomy, Chinese Government officials, including, if
I'm not mistaken, Li Zhaoxing, a few years ago, have continued
to accuse him of being a separatist. In fact, they've said that
there has never been a day when he hasn't been working to split
Tibet from China.
Furthermore, while the Dalai Lama or his agents have met
with various officials in the Chinese Government, neither the
government nor any particular Chinese official has ever
acknowledged that they were meeting with him as a
representative of the government. They've always said that they
were meeting with him as an individual or with his
representatives, the very clear point being to prevent anyone
from drawing the conclusion that Beijing recognizes him or the
Tibetan government-in-exile as a legitimate political
organization, as a legitimate interlocutor in a discourse that
might take place about events inside Tibet.
I don't, to be honest, see any way of getting Beijing
either to credit the Dalai Lama with walking back a great
distance from his original political formulations before 1988,
or getting Beijing to recognize that there is a legitimate
conversation partner outside China to be speaking about events
in Tibet.
One further point that I would make. Representative Honda,
I think, accurately suggested that the Dalai Lama has very wide
political influence. One thing that was conspicuous last year
was that the March 2008 events were not confined to Tibet. They
began there, but they spread to regions that a specialist on
Tibet described as ethnographic Tibet, including parts of
Sichuan and Hunan Provinces and Xinghai County.
This was, in fact, surprising to me and other observers who
have long focused on the politics of non-Han areas, areas where
non-Hans predominate, because it suggested on the one hand a
level of political bravery in the face of almost certain
retaliation, and on the other hand, a wider catchment of
political influence and concern about the fate of Tibetans than
we might have anticipated before.
So to make one final point about the Dalai Lama, when he,
as he often does, argues that he attempts to speak or he
attempts to represent not only Tibetans in Tibet, but Tibetans
in all of ethnographic Tibet, I think he makes an important
point that should be recognized. Unfortunately, I think there
is very little percentage, for reasons I've already mentioned,
in trying to get Beijing to recognize that ethnographic Tibet
is a meaningful political area as a whole. I'll stop my
comments there.
Ms. Economy. Very briefly, to Representative Honda's point
about the potential for cooperation on renewable energies
between the United States and China, and indeed not only the
most recent venture with Secretary Locke and Secretary Chu
establishing a $15 million joint energy research center, but
also the work that was done by Secretary Paulson previously
within the Strategic Economic Dialogue to develop joint
projects, such as electric cars.
They're all very important, and I hope that some of them
actually move forward to fruition. I think there's a great
challenge in establishing these joint projects and then
actually seeing them come to be. I think it would be worthwhile
to look already at what we have set in motion and see how it's
progressing. I would make one further point; that $15 million
in an area that is going to need billions of dollars of
technology investment is really a drop in the bucket. But, of
course, any step forward is a step forward.
Just one small point on Representative Smith's point about
the debt. I think Don is absolutely right in the technicalities
of how the debt works and the Chinese don't have any other sort
of option right now. That doesn't mean that the Chinese don't
perceive it as a source of leverage.
In virtually every discussion that I have with Chinese
officials these days, the first thing out of their mouth is,
that ``We are your banker, in essence, and the Chinese people
are depending on you to secure our investment,'' and so on. So
I think that there is something to it.
I would hazard a guess that it's not that the
administration is trading the debt issue, per se, for human
rights, but rather that they perceive a very broad range of
issues on which we need to cooperate with China, from trade and
IPR [intellectual property rights], to proliferation, North
Korea, et cetera, and that human rights is one among these
issues and that they don't want to grant it super status. But
maybe the point is being missed that in many respects these
issues of rule of law and human rights and good governance are
fundamental to almost any of those issues and to our successful
cooperation.
Chairman Dorgan. Mr. Wu, you are recognized for your
questions.
STATEMENT OF HON. DAVID WU, A U.S. REPRESENTATIVE FROM OREGON;
MEMBER, CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
Representative Wu. Thank you very much, Mr. Chairman.
I want to apologize to the panel. I am supposed to be in a
markup, and theoretically I'm there right now. But Members of
Congress being who they are, I think the chatting will continue
for a while. I just want to make a couple of remarks, and
perhaps to the extent necessary or appropriate, perhaps the
panel wants to comment.
I want to recognize Mr. Kamm's longstanding good work with
which I was familiar before I came to Congress. Professor
Clarke has been helpful to my office in some of the work we've
been trying to do to recognize the century mark for some of the
law schools in China, which, over the long haul, hopefully will
be very helpful to the development of the rule of law in a very
large country. That is actually an idea which I carried away
from the last Commission hearing.
But, first, one comment from decades ago. In the early
1980s, I went to China. I was with some relatives. One of them
said, ``I bet you had an easy time at the border this go-
round.'' I said, ``Well, what makes you say that? Because I did
have a relatively light and easy time at the border.'' He said,
``Well, the official situation between our governments is a
little bit testy right now, so what our government does is it
tells the border guards to be nice at a time when the official
situation is a little bit tougher.'' I don't know if it's that
formal, but at least that is the domestic Chinese perception
of, if you will, the Ying and the Yang of this relationship.
Since, among other things, our head of state chose not to
meet with the Dalai Lama this time, and perceives multiple
interests on the plate. I think that the work of this
Commission and the testimony from the panelists is especially
important at a time like this to make sure that we reinforce
that what I view as universal human values have a constancy of
concern and are the bedrock of a stable relationship in the
long term so that those issues never fall off the table.
As a second item that I just want to mention, I think I was
the first person who handed a letter of condolence to the PRC
Ambassador here in Washington about the Sichuan earthquakes. It
was the morning that we heard about the earthquakes. I had a
prior scheduled meeting with the Ambassador and I knew that it
was a bad situation and I wanted to express my concern and
condolences right away.
I am sincerely concerned about natural disasters that occur
anywhere in the world, but there are some places where we feel
a special connection. I was concerned then, and I'm concerned
now. I am especially concerned that some of the folks who have
asked for answers as to why school buildings seemed to have
collapsed at a much higher rate than other public buildings,
that some of these folks have been harassed and a couple of
have been arrested and tried.
I am in the process of preparing a House resolution asking
for a careful review of the cases of Mr. Huang Qi and Mr. Tan
Zuoren to accord them the rights that they have under the
applicable sections of the Chinese Constitution, because it
appears that by advocating for the parents of kids who were
killed in the earthquake, they have somehow been caught up in
their government's web of concern about state secrets and
subversion. At least to this observer, that seems to be a
stretch and it seems to be not necessarily consistent with the
Constitution and statutes of the People's Republic of China. I
would prefer not to put that kind of resolution in, but
depending on what the PRC Government does between now and then,
we will see.
I just wanted to make that brief statement because, quite
frankly, I don't have enough of the context of this hearing to
ask a sensible question. So I will turn it over to the panel
and then come back to you, Mr. Chairman.
Representative Walz [presiding]. Well, Mr. Smith, please go
ahead if you have a followup.
Representative Smith. Thank you very much, Mr. Chairman.
Let me just say, Dr. Economy, in response to your comment
about the cluster of issues, and that human rights would be
part of that cluster, I would just respectfully suggest, with
one big, red flag, human rights then becomes an asterisk, maybe
on page 8 of the dialogue, or whatever it might be. Our
argument about linking human rights with MFN [most-favored-
nation] and then PNTR [permanent normal trade relations] was
that, where were the Chinese going to find a market to dump so
many of their finished goods, except on U.S. soil? Otherwise,
it's just not there. So we had real leverage and we just threw
it away, right off, squandered it. And who got hurt--the
dissidents and those striving for human rights.
I remember, Frank Wolf and I had a meeting with Li Peng in
the early 1990s. We brought up human rights. We had prisoner
lists, we raised all of the issues. We were surprised we got to
see him, quite frankly. He was incensed that we brought up
human rights, and we did it very respectfully and very
diplomatically. He wouldn't even touch the list of prisoners,
Mr. Kamm. Wouldn't even touch it. It's like, he moved away from
it, and then he hearkened back to the Shanghai communique and
said there's nothing about human rights in our relationship.
So my fear is that with Mrs. Clinton's statement earlier in
the year--I mean, we had Chinese officials here the better part
of a week, meeting with Tim Geithner. I'm sure human rights was
nowhere to be found in that dialogue. President Obama will make
his way to Beijing. He'll say ``I agree to disagree,'' or ``we
agree to disagree,'' which means that, to every dissident,
you're finished, you're toast. I'm very concerned.
Wei Jingsheng once said at a hearing that I chaired, when
you are tough, predictable, and transparent--which is pretty
much what he said, not verbatim--they beat us less in the
prisons. When you kowtow, when you're groveling, they beat us
more and they cause us to lose hope. I'm very fearful about
where we are in terms of this dialogue. I would respectfully
suggest that human rights be at the top. Contract law will
follow. If you get that right you get transparency, you get
everything else, but if you don't, you get a terrible
distortion by a government and a lot of broken people.
So I hope we don't make this a cluster, because if it's
part of that group of issues, the human rights activists lose
and the people of China lose. The Uyghurs, the Tibetans, they
all lose.
Representative Walz. Well, thanks, Mr. Smith.
First of all, thank you all, to our panelists, for being
here, for your scholarship, for your advocacy, and for helping
us understand this issue. I would like to point out and say a
special thank-you to the staff of the Congressional-Executive
Commission on China for the incredible scholarship, their
integrity, in compiling the 2009 Annual Report. It will be up
on the Internet next Tuesday, the 13th of October. We are very
appreciative to all of them. They do incredible work. And to my
fellow Commissioners, for showing a passion for getting this
right, for showing a passion on human rights that all of us
need to keep in mind, and I'm very appreciative of that.
So, thank you all for being here today. With that, this
meeting is adjourned.
[Whereupon, at 3:45 p.m. the hearing was concluded.]
A P P E N D I X
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Prepared Statements
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[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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Prepared Statement of Elizabeth Economy
october 7, 2009
Mr. Chairman and distinguished Members of the Commission, it is my
pleasure to have the opportunity to discuss China's efforts in the
realm of human rights, the rule of law and the environment and the
prospects for U.S.-China cooperation on this critical issue.
introduction
Over the past five to seven years, China's leaders have become
increasingly concerned about the impact of the environment on the
country's future. Twenty of the world's 30 most polluted cities are in
China; over half of the country's population drinks contaminated water
on a daily basis; and more than 25 percent of the land is severely
degraded or desertified. As China's Minister of Environmental
Protection Zhou Shengxian acknowledged in 2007, ``Pollution problems
have threatened public health and social stability and have become a
bottleneck for sound socio-economic development.'' \1\
---------------------------------------------------------------------------
\1\ Jiangtao Shi, ``Beijing gets flak for pollution of waterways,''
South China Morning Post (September 17, 2007).
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Much of China's environmental challenge stems from the very rapid
and unfettered growth of the past 30 years. The ``growth at all costs''
model of development has exerted a profoundly negative impact on the
country's air, water and land quality and further transformed China
into a major global polluter. The country now ranks as the world's
chief contributor to global climate change, ozone depletion, the
illegal timber trade, and pollution in the Pacific.
Yet the inability of China's leaders to turn this devastating
environmental situation around--and the environment is frequently
mentioned as a ``top'' priority by President Hu Jintao and Premier Wen
Jiabao--has as much to do with failings in governance as with economic
interests. China has passed well over 100 environmental laws and
hundreds of regulations. The challenge rests in effectively
implementing these laws and regulations, a process that is seriously
impeded by a lack of transparency, rule of law and official
accountability.
Whether China's leaders are able to incorporate better governance
practices into their system matters enormously not only for the health
and welfare of the Chinese people but also for the rest of the world.
If China cannot enforce its current environmental laws and regulations,
there is little reason to believe that it will be able to respond
effectively to a challenge such as global climate change.
the nature of the challenge
China's leaders are concerned about the country's environment above
all because it is limiting opportunities for future economic growth,
harming the health of the Chinese people, and has become one of the
leading sources of social unrest throughout the country.
The economic challenges are most direct. Over the past several
years, the Chinese media have reported on a number of environment-
induced annual economic losses: desertification costs the Chinese
economy about $8 billion, in addition to water pollution costs of $35.8
billion, air pollution costs of $27 billion and weather disaster and
acid rain costs of $26.5 and $13.3 billion respectively.\2\ All told,
the Ministry of Environmental Protection estimates that environmental
pollution and degradation cost the Chinese economy the equivalent of 10
percent of GDP annually. Regionally, the impact is even more
devastating. The prawn catch in the Bohai Sea, for example, has dropped
by 90 percent over the past decade and a half as a result of pollution
and overfishing. In Qinghai, over 2,000 lakes and rivers have simply
dried up over the past two decades, contributing to significant lost
opportunities for industrial growth.
---------------------------------------------------------------------------
\2\ ``Cost of Pollution in China: Economic Estimates of Physical
Damages,'' The World Bank and China State Environmental Protection
Administration (February 2007).
---------------------------------------------------------------------------
These economic costs are compounded by a set of mounting public
health problems. In a survey of 30 cities and 78 counties released in
spring 2007, the Ministry of Health blamed worsening air and water
pollution for dramatic increases in the incidence of cancer throughout
the country: a 19 percent rise in urban areas and a 23 percent rise in
rural areas since 2005.\3\ About 700 million people in China drink
water that is contaminated with human or animal waste,\4\ and according
to the Ministry of Water Resources, 190 million drink water that is so
contaminated that it is dangerous to their health.
---------------------------------------------------------------------------
\3\ ``Health Expert Blames Pollution for China's Cancer Rise,''
Reuters (May 16, 2007).
\4\ ``Toxic Rivers and Thirsty Cities,'' China Environment Forum,
Woodrow Wilson International Center for Scholars (May 2007):
www.wilsoncenter.org/index.cfm?. fuseaction=topics.item&news--
id=224022&topic--id=1421.
---------------------------------------------------------------------------
Taken together, these economic and health problems are at the root
of the rapidly rising public discontent and unrest over the state of
the environment. According to Minister Zhou, in 2005, the number of
environmental protests topped 50,000.\5\ While some pollution-related
protests are relatively small and peaceful, others become violent, even
deadly, when demands for change are repeatedly ignored.
---------------------------------------------------------------------------
\5\ ``Wen sets out strategy to tackle environmental protection,''
Xinhua News Agency (April 23, 2006).
---------------------------------------------------------------------------
In August 2009, for example, several thousand villagers in Shaanxi
Province stormed a lead and zinc smelting plant after hundreds of
children living near the plant tested positive for excessive levels of
lead in their blood.\6\ Of these, 154 were so sick that they had to be
admitted to the hospital.\7\ The villagers had been complaining for
three years about the plant, and although the local government has
promised to relocate the affected families, villagers in the relocation
sites have noted that their children are similarly afflicted with lead
poisoning.\8\
---------------------------------------------------------------------------
\6\ ``Hundreds storm smelter over lead poisoning,'' Reuters (August
17, 2009).
\7\ Kelly Chan, ``Lead-poisoned villagers in Shaanxi fear new
location unsafe,'' South China Morning Post (August 17, 2009). Lead
poisoning can damage the nervous and reproductive systems. It also can
cause anemia, affect a child's learning ability, and in the worst
cases, lead to coma and death.
\8\ Shi Jiangtao, ``Order Restored after Factory Protest,'' South
China Morning Post (August 18, 2009).
---------------------------------------------------------------------------
Environmental protest has also been spurred by the Internet. In May
2009, in Shandong Province, a group of residents posted an online
petition calling for an investigation of four cyclohexanone chemical
plants. The petitioners believed that the factories, which had been in
operation since a year earlier, were polluting the air and water and
contributing to an unusually high number of thyroid cancer cases. The
county government initially ignored the petition, arguing that the
factories were not allowed to drain wastewater until they met
provincial standards and had passed official water quality tests. Over
the next month, the petition circulated on web portals such as Baidu
and Tianya, collecting an estimated 1,400 signatures. In an open letter
published on Internet forums, one resident even called for a broader
``uprising'' that might not be successful but would ``mark the start of
a revolution against a crude regime'' and even called for the killing
of the Communist Party chief and county director. The author later
claimed that more than 5,000 people had signed up for the protest. On
June 29, 2009, Premier Wen Jiabao ordered the Shandong officials to
investigate the claims and respond to the public.\9\
---------------------------------------------------------------------------
\9\ Al Guo, ``Internet petition catches the eye of Premier Wen;
Pollution investigation fast-tracked,'' South China Morning Post (June
29, 2009).
---------------------------------------------------------------------------
In addition, the Internet and other forms of telecommunication such
as texting have facilitated mobilized protest in urban areas, a
phenomenon of only the past two years. There have been significant
protests--with up to 10,000 people--in major cities such as Xiamen,
Zhangzhou and Chengdu over the planned siting of various large-scale
chemical and petrochemical plants. Here, too, violence has occurred in
some cases. Notably, in a few of these instances of urban protest,
public opposition has been strong enough to lead to a reversal in a
government decision. The significance of the urban, middle class
protest is that it erupts not ``after the fact'' in response to a
devastating environment-induced economic or public health crisis, but
rather in advance of something likely to cause significant public
health damage. In a small, but potentially significant, way, therefore,
urban protesters have influenced Chinese government policy.
reform in environmental governance
There are a number of reasons for China's worsening environmental
situation and the related proliferating social and economic challenges:
a continued priority on economic growth, the pricing of resources that
doesn't support conservation or efficiency, a dearth of political and
economic incentives to do the right thing and, most critically, a lack
of transparency, official accountability and the rule of law. There is
no reliable mechanism for uncovering and dealing with environmental
wrongdoing.
To begin with, accurate environmental data are often difficult to
obtain. Sometimes it is a matter of capacity. Local environmental
officials may simply not have the manpower, transportation or funds to
monitor pollution levels at all the sites for which they are
responsible. In addition, local officials are often reluctant to
provide information that reflects poorly on their leadership, and there
is no institutionalized check on the statistics that are provided. One
significant central government campaign to evaluate local officials on
their environmental performance--the Green GDP campaign--failed in
large measure because the Ministry of Environmental Protection could
not access the necessary environmental data from a number of
recalcitrant provincial leaders. In a few places, such as Jiangsu
Province, there are experiments underway with international partners to
scorecard factories and make the information available publicly.
However, ensuring the transparency element of the process has
apparently been quite difficult.
Corruption is also a serious problem. Many local officials often
ignore serious pollution problems out of self-interest. Sometimes they
have a direct financial stake in factories or personal relationships
with factory managers. In recent years, the media have uncovered cases
in which local officials have put pressure on the courts, the press, or
even hospitals to prevent pollution problems and disasters from coming
to light. Moreover, local officials often divert environmental
protection funds to other endeavors. A recent Ministry of Environmental
Protection-supported study, for example, found that fully half of the
environmental funds distributed from Beijing to local officials for
environmental protection made its way to projects unrelated to the
environment.
Recognizing the potential of local officials to subvert or ignore
environmental laws and regulations, Beijing has opened the door to the
media and non-governmental organizations (NGOs) to act as unofficial
environmental watchdogs. China's first environmental NGO, Friends of
Nature, was established in 1994, and it was devoted to environmental
education and biodiversity protection. Fifteen years later, China has
over 3,000 environmental NGOs that play a role in virtually every
aspect of environmental protection. Above all, they help bring
transparency to the environmental situation on the ground. These groups
help expose polluting factories to the central government, launch
Internet campaigns to protest the proliferation of large-scale
hydropower projects, sue for the rights of villagers poisoned by
contaminated water or air, provide seed money to smaller, newer NGOS
throughout the country, and go undercover to expose multinationals that
ignore international environmental standards. The media are an
important ally in this fight: educating the public, shaming polluters,
uncovering environmental abuse and highlighting environmental
protection successes.
Environmental NGOs are also at the forefront of advancing the still
nascent rule of law in China's political system. In 1998, Wang Canfa, a
professor of law at the China University of Politics and Law,
established the Center for Legal Assistance to Pollution Victims
(CLAPV). The center trains lawyers to engage in enforcing environmental
laws, educates judges on environmental issues, provides free legal
advice to pollution victims through a telephone hotline, and litigates
cases involving environmental law. Between 2001 and 2007, the center
trained 262 lawyers, 189 judges and 21 environmental enforcement
officials in environmental law.\10\
---------------------------------------------------------------------------
\10\ Lindon Ellis, ``Giving the Courts Green Teeth,'' China
Environment Forum, Woodrow Wilson International Center for Scholars
(October 22, 2008): http://www.wilsoncenter.org/index.cfm?topic--
id=1421&fuseaction=topics.event--summary&event--id=477342.
---------------------------------------------------------------------------
In addition, Wang has been advising the Chinese government on the
establishment of a system of specialized environmental courts.
Beginning in late 2007, the Supreme People's Court established a
network of courts that are responsible only for cases regarding
environmental protection and the enforcement of environmental
regulations. These environmental protection courts seek to address the
weak capacity of judges to solve environmental disputes due to lack of
expertise and experience, eliminate the challenge faced by plaintiffs
in bringing environmental lawsuits, and strengthen the enforcement of
judgments against defendants who are influential in local economic
matters. Thus far, these courts have been established in three
provinces: Guizhou, Jiangsu and Yunnan. The courts have already heard a
number of cases: the Kunming Court in Yunnan Province heard 12
environmental law violation cases during the first half of 2009, while
the Guiyang court in Guizhou accepted 45 environmental cases (and ruled
on 37 of them) in its first six months.\11\ These environmental courts
also have the authority to enforce the judgments they issue. More
environmental courts are expected to open throughout China as the
success of established courts becomes determined. The biggest problem
currently confronting the courts is that they do not have enough cases
to consider.
---------------------------------------------------------------------------
\11\ Gao Jie, ``Environmental Protection Courts: Incubator of
Environmental Public Interest Litigation or Just A Decoration?''
GreenLaw (October 5, 2008): http://www.greenlaw.org.cn/enblog/?p=4.
---------------------------------------------------------------------------
Despite the important role that environmental NGOs and the media
have come to play in China's environmental protection effort, many
Chinese leaders remain wary of the intentions of these non-governmental
actors. Above all, China's leaders fear the potential that the
environment might become a lightning rod for a broader push for
political reform. They thus have put in place a Byzantine set of
financial and political requirements to confine NGO activities within
certain boundaries and to enable their close monitoring by authorities.
Misjudging these boundaries can bring severe penalties. Wu Lihong
worked for 16 years to address the pollution in Tai Lake, gathering
evidence that forced almost 200 factories to close. In 2005, Beijing
honored Wu as one of the country's top environmentalists, but in 2006,
one of the local governments Wu had criticized, arrested and jailed him
on dubious charges of blackmail and fraud. Yu Xiaogang, the 2006 winner
of the Goldman Environmental Prize and 2009 winner of the Ramon
Magsaysay Award, both for grassroots environmental activism, has been
forbidden to travel abroad in retaliation for educating villagers about
the potential downsides of a proposed dam relocation in Yunnan
Province. A third environmental activist, Tan Kai, has been in jail
since 2006. In 2005, Tan established the NGO Green Watch in his home
province, Zhejiang, to monitor local officials' compliance with orders
to shut down several polluting factories that had been the sites of
serious protests.
implications for the united states
For the United States, the capacity of China to meet its
environmental challenges is only becoming more pressing. If China does
not have transparency, accountability or the rule of law within its
domestic environmental system, it cannot be relied upon to be a
responsible partner to meet the challenge of a global issue such as
climate change. It will not possess the capacity to enforce the
regulations that will arise from domestic climate legislation nor the
transparency to ensure accurate measurement of emissions and emissions
reductions. Nor will China be able to devise and implement a system
that will ensure that officials who attempt to subvert the legislation
will be held accountable. This does not mean that the United States
should not move forward to assist China in setting and meeting targets
to reduce their greenhouse gas emissions. It does suggest, however,
that building capacity within China's system of environmental
governance should be a top priority for bilateral cooperation.
There are small-scale efforts already underway within the United
States to help China develop such capacity. Over the past two years,
the U.S. government has provided $5-$10 million in Development
Assistance for programs and activities in the PRC related to democracy,
rule of law and the environment.\12\ With support from the U.S.
government, for example, the American Bar Association has supported
both Wang Canfa's Center for Legal Assistance to Pollution Victims as
well as various universities to train public interest lawyers to
specialize on the environment and provide expertise to the new
environmental courts. Vermont Law School similarly engages partners
such as SunYat-sen University to help improve China's environmental
policies, systems and laws. Climate change is also garnering growing
interest as an area of cooperation. The state of California is already
pushing forward on several fronts, including enhancing transparency in
energy use in Jiangsu Province and fostering interagency cooperation at
the local level to address climate change.\13\ Still, the majority of
interest and attention in the United States and China is focused on the
opportunity for technology cooperation and transfer. This technology
will only be effective, however, if China has the appropriate political
environment to support its use. To tackle an issue of the magnitude of
climate change, will require far more of a concerted and coordinated
international effort by the United States and its partners to bolster
the rule of law, transparency and accountability within China.
---------------------------------------------------------------------------
\12\ Thomas Lum, ``U.S.-Funded Assistance Programs in China,''
Congressional Research Service (January 28, 2008).
\13\ ``Local-to-Local Energy Linkages: California and Alberta in
China,'' Event Summary, China Environment Forum, Woodrow Wilson
International Center for Scholars (May 20, 2008).
---------------------------------------------------------------------------
______
Prepared Statement of Donald C. Clarke
october 7, 2009
Lawyers and the State in China: Recent Developments
i. introduction
The relationship between lawyers and the state in post-Mao China
has been both fluid and complex.\1\ No longer are lawyers considered to
be simply ``state legal workers'' with quasi-official status. At the
same time, the state considers them to be more than simply commercial
suppliers of a service. It exercises tight control over lawyers'
associations, and imposes special duties on lawyers to promote the
state's interest even when it might be at the expense of their clients.
As for lawyers themselves, some are not only content with the status
quo but actively work to promote it and suppress challenges. Others
engage in controversial or sensitive activity but stay carefully within
the bounds of what is actually permitted; still others push the
boundaries a bit further to what is formally permitted but may not be
regularly permitted in practice. And a very few consciously go beyond
even that limit and openly challenge the state.
---------------------------------------------------------------------------
\1\ For excellent English-language scholarship in this area, see,
inter alia, the work of Prof. William P. Alford (publications list at
http://tinyurl.com/ybg6824); Prof. Hualing Fu (several publications
posted at http://www.ssrn.com; Prof. Sida Liu (publications list at
http://tinyurl.com/y959lkf); and Prof. Ethan Michelson (publications
list at http://tinyurl.com/ydycrqw).
---------------------------------------------------------------------------
The response of the state to perceived challenges from lawyers has
also varied across time and space. Central and local government actions
are not always coordinated and may indeed be contradictory, as may
actions from different agencies within the same level of government.
Policy may at one time be relatively relaxed and another time quite
tight.
Despite this complexity, it is possible to reach certain big-
picture conclusions, and one of them is that the environment for
lawyers who get involved in cases or activities of any sensitivity\2\
has worsened in the last several months. In April 2008, Human Rights
Watch issued a report on the status of lawyers in China;\3\ this
testimony aims largely to provide an update on developments since that
time.
---------------------------------------------------------------------------
\2\ By ``sensitive'' I mean two things. First, I mean cases or
activities relating to subjects that are well known to be matters of
government concern--for example, Falun Gong, Tibet, unapproved
political parties, land takings, and environmental protests. But I also
use ``sensitive'' to indicate cases that might be quite ordinary in
their subject matter but have been made sensitive by the involvement
for any reason of influential people--for example, an ordinary-looking
commercial dispute where one side is a company that is owned by a
relative of a top leader or is a major contributor to the local
economy.
\3\ Human Rights Watch, ``Walking on Thin Ice'': Control,
Intimidation and Harassment of Lawyers in China (April 2008), available
at http://www.hrw.org/reports/2008/china0408/.
---------------------------------------------------------------------------
ii. recent developments
Since spring 2008, the central and local governments have taken a
number of steps to discourage lawyers from challenging the state in any
significant way.\4\ Most prominent among these steps have been (1)
formal and informal measures to prevent lawyers from effectively
representing parties involved in sensitive incidents such as mass
unrest or mass torts, and (2) the delicensing of particularly
troublesome lawyers and firms, sometimes through an active delicensing
process and sometimes through failure to allow the lawyers to pass the
annual re-licensing process. I discuss some particular examples below.
---------------------------------------------------------------------------
\4\ It is important to note that the number of such lawyers is
small, both in absolute terms and relative to the size of the
profession. The political activism of lawyers as a profession in China
is utterly different from that of lawyers in, say, Pakistan.
---------------------------------------------------------------------------
A. Suspension of the Yitong Law Firm
Yitong is a Beijing law firm headed by activist lawyer Li Jinsong.
It has been at the center of several high-profile cases, representing
Hu Jia, the HIV/AIDS activist, and Chen Guangcheng, the blind
``barefoot lawyer'' \5\ who exposed forced abortions in his native
Shandong province. Several Yitong lawyers were behind an unsanctioned
challenge to the leadership of the Beijing Lawyers Association
(discussed below).
---------------------------------------------------------------------------
\5\ ``Barefoot lawyers'' are persons--typically in the
countryside--not licensed as lawyers who have developed a certain
expertise in legal matters and assist their neighbors and others in
asserting legal claims. See Melinda Liu & Lijia MacLeod, Barefoot
Lawyers, Newsweek, Mar. 4, 2002, available at http://www.newsweek.com/
id/75076.
---------------------------------------------------------------------------
On March 17, 2009, the Haidian District Judicial Bureau in Beijing
issued a final decision ordering the closing of Yitong for six months
on what were widely considered to be weak charges.\6\ Despite
predictions by Li Jinsong that the firm might not survive, it reopened
on September 14, 2009.\7\ Although the firm has re-opened, it lost a
large number of its lawyers and its ability to function has certainly
been greatly impaired. Moreover, the lesson that troublemaking will be
punished cannot have been lost on other activist (or would-be activist)
lawyers. While some will
undoubtedly continue to do what they have always done, there are others
at the margin for whom the punishment of Yitong would be (as intended)
of decisive discouraging effect.
---------------------------------------------------------------------------
\6\ See Peter Ford, China Cracks Down on Human Rights Lawyers,
Christian Science Monitor, February 25, 2009, available at http://
tinyurl.com/ca7pkz; ``Killing One to Warn 100": The Shutdown of the
Yitong Law Firm, China Rights Forum, No. 1, 2009, at 22, available at
http://tinyurl.com/yan85an.
\7\ See Li Jinsong, Zong you yizhong liliang qushi women gushou
``zhengyi, aixin, liangzhi, fazhi''!--Yitong lushi shiwusuo huifu zhiye
zhi ri zhi haineiwai pengyou (There Is Always a Force Pushing Us to
Maintain ``Justice, Love, Conscience, and Rule of Law''!--To Domestic
and Foreign Friends on the Occasion of the Yitong Law Firm's Resumption
of Business), September 14, 2009, http://tinyurl.com/y9nnz9t.
---------------------------------------------------------------------------
B. Closing of the Open Constitution Initiative
The Open Constitution Initiative (``OCI'') was an organization
headed by Xu Zhiyong, a legal scholar who teaches at Beijing Posts and
Telecommunications University and is an elected delegate to the Haidian
People's Congress. The OCI had been prominent in many issues related to
the rule of law in China, from issuing a report criticizing government
policy in Tibet to providing assistance to the families of babies
poisoned in the melamine-tainted milk scandal. In July 2009, OCI was
charged with tax evasion and ordered to pay 1.43 million yuan, a huge
amount relative to the scale of the charged offense.\8\ The
organization's offices were raided by officials of the Beijing Bureau
of Civil Affairs, who confiscated substantial amounts of property. OCI
was then declared ``illegal'' and its web site shut down.\9\
---------------------------------------------------------------------------
\8\ OCI was charged with owing 187,424 yuan (approx. $27,500) in
back taxes--an amount disputed by OCI--and fined 1,242,100 yuan
(approx. $182,200), the highest possible amount. See Jiang Xueqing,
Baby Milk Powder Victims Lose Legal Proxy, Global Times (China), August
11, 2009, available at http://tinyurl.com/ye6s9pt.
\9\ See Edward Wong, China Shuts Down Office of Volunteer Lawyers,
New York Times, July 17, 2009, available at http://tinyurl.com/y97leo4.
---------------------------------------------------------------------------
On July 29, 2009, Xu Zhiyong himself was detained and subsequently
arrested\10\ on charges of tax evasion.\11\ He was released pending
trial on August 23;\12\ the case is still unfolding.
---------------------------------------------------------------------------
\10\ ``Arrest'' (daibu) is a formal stage in Chinese criminal
procedure; it means more than simply subject to coercive detention by
the authorities.
\11\ See Michael Wines, Chinese Public Interest Lawyer Charged Amid
Crackdown, New York Times, August 18, 2009, available at http://
tinyurl.com/yavwff8.
\12\ See Michael Wines, Without Explanation, China Releases 3
Activists, New York Times, August 23, 2009, available at http://
tinyurl.com/yacl6ff.
---------------------------------------------------------------------------
C. Raiding of Yirenping
On July 29, 2009, the Beijing offices of the Yirenping Center, an
NGO specializing in public health education, aid to patients, and the
elimination of discrimination, were raided by officials from the
Beijing Public Security Bureau and state publishing authorities on the
grounds that Yirenping was engaging in unauthorized publishing
activities by having a newsletter. Yirenping's head, Lu Jun, was
ordered to present himself for further investigation.\13\
---------------------------------------------------------------------------
\13\ Human Rights in China, Raid of Public Interest Group Reveals
Degree of Information Control, July 29, 2009, http://tinyurl.com/
y8an8n7 (press release); Kathrin Hille, Chinese Authorities Detain
Civil Rights Activist, Financial Times, July 30, 2009, available at
http://tinyurl.com/y93jz6o.
---------------------------------------------------------------------------
D. Tempest in the Beijing Lawyers Association
Lawyers associations in China are typical Leninist ``mass
organizations'': vehicles more for top-down control than for bottom-up
articulation and representation of interests. In this way, they
resemble labor unions, the Women's Federation at various levels, and
the official churches. In September 2008, some lawyers in Beijing
issued a call for the direct election of leaders of the Beijing Lawyers
Association (``BLA'') as well as other reforms that would have the
effect, they said, of taking power from the small group of rich lawyers
currently in control.\14\
---------------------------------------------------------------------------
\14\ The text of their open letter is attached as Appendix 1.
---------------------------------------------------------------------------
The BLA leadership did not take this challenge lying down. It
issued a rather nasty response\15\ full of the kind of politically
threatening language one rarely sees any more: it speaks of ``linking
up'' (a pejorative word evocative of Red Guards running rampant),
working ``under the signboard'' of democracy, ``stirring up rumors''
and ``rabble-rousing,'' ``inciting'' lawyers ``who don't understand the
true situation,'' etc. The response warns darkly that using text
messages and e-mail to engage in this kind of activity is illegal,
although the laws being violated are not mentioned. Lawyers are urged
to maintain a correct political orientation and to resist the
blandishments of this ``minority.''
---------------------------------------------------------------------------
\15\ The text of the response is attached as Appendix 2.
---------------------------------------------------------------------------
The lawyers who issued the statement did not back down, and issued
a firm response of their own,\16\ maintaining their right to a say in
the running the BLA. In the end, however, their defiance proved
fruitless. The law firm most prominently associated with the challenge,
Yitong Law Firm, was closed for six months by the authorities, and
several of the lawyers involved lost their licenses to practice law
(see below).
---------------------------------------------------------------------------
\16\ The text of the response is attached as Appendix 3.
---------------------------------------------------------------------------
E. Denial of Re-Licensing to Lawyers
China's lawyers are subject to an annual re-licensing procedure.
Instead of taking active steps to de-license a lawyer deemed
troublesome, the authorities can simply refuse to re-license when the
time comes. On July 9, the Beijing Judicial Bureau, the body in charge
of licensing lawyers in Beijing, announced on its web site that it had
canceled the licenses of 53 lawyers, including prominent lawyer Jiang
Tianyong, for failing to register as members of the Beijing Lawyers
Association.\17\ Another group of lawyers not on the list were simply
refused a renewal of their licenses on the grounds that they had
``failed their assessments''; these lawyers included well-known lawyers
such as Li Heping.\18\ Another activist lawyer, Teng Biao, was refused
a license renewal when his employer, the China University of Politics
and Law, refused to support his application.\19\ The pretextual nature
of the grounds for de-licensing is evident from the fact that previous
years have not, to my knowledge, seen such large-scale de-licensings.
---------------------------------------------------------------------------
\17\ See Beijing Judicial Bureau, Beijing shi sifa ju guanyu
zhuxiao Zhang Qingtai deng 53-ming lushi de lushi zhiye zhengshu de
jueding (Decision of the Beijing Judicial Bureau on the Cancellation of
the License to Practice of Zhang Qingtai and 52 Other Lawyers), July 9,
2009, http://tinyurl.com/yc7nxx5.
\18\ See Amnesty International, Human Rights Lawyers Disbarred in
China, July 15, 2009, http://tinyurl.com/yaq3o97 (press release).
\19\ Chinese lawyers must generally work through an employing body
such as a law firm or, in the case of academics working as part-time
lawyers, their university. The support of the employer is therefore
required.
---------------------------------------------------------------------------
F. Interference With Attorney-Client Relations
On several occasions, state and quasi-state authorities (for
example, bar associations) have issued rules or engaged in practices
that have the intention and effect of preventing lawyers from offering
effective representation to clients. One of the most well-known of
these was issued to lawyers charged with defending those involved in
the 1989 protests. It instructed them to ``do a good job of ideological
work on the defendant and his family members, encouraging them to admit
the crime and submit to the law.'' \20\ Another document issued at
about the same time made clear the state's view of the role of lawyers:
---------------------------------------------------------------------------
\20\ All-China Lawyers Association, Circular on ``The Defense Work
of Lawyers in the Current Trials of Cases Related to the Turmoil and
Counterrevolutionary Rebellion,'' November 25, 1989, reprinted and
translated in Human Rights in China, Going Through the Motions: The
Role of Defense Counsel in the Trials of the 1989 Protestors 7, 8
(March 1993).
Defense is not a matter of victory or defeat, and the legal
advisor is not competing with the procuratorial and court
personnel to see who comes out on top; it is a propaganda
effort, directed at the citizens, to condemn vice and praise
justice.\21\
---------------------------------------------------------------------------
\21\ Shanghai Municipal Lawyers Association Research Department,
Shanghai Concentrates on Doing a Good Job of Criminal Defense Work in
``Turmoil-Related Cases'' (Outline of Report), n.d., reprinted and
translated in Human Rights in China, supra note 20, at 16, 19.
This view has not significantly changed over time. The state
continues to engage in intensive efforts to stay informed of and direct
the work of lawyers in cases it deems sensitive, and to simply block
the efforts of lawyers to represent clients even when it is unwilling
to issue formal rules to that effect. I provide an incomplete list of
such efforts below, with some historical background but a focus on more
---------------------------------------------------------------------------
recent efforts.
In 1999, the Beijing Judicial Bureau issued a document
establishing a ``leading group'' within the Bureau to deal with
``major and important cases.'' Certain cases were to be
reported to the leading group by lawyers--for example, all
instances of collective litigation or litigation involving
state organs or leaders above the prefectural level. And
certain cases not only were to be reported, but required
approval from the leading group before lawyers could accept
them--for example, all cases involving state security or
foreigners.\22\ The document specifically stated that ``[t]he
lawyer handling the case should prepare his tactics according
to the decision made by the leading group after the
discussion.''
---------------------------------------------------------------------------
\22\ Beijing Judicial Bureau, Guanyu Beijing Shi lushi shiwusuo
chengban zhongda falu shiwu qingshi baogao de zhidu (On the System of
Asking for Instructions and Reporting When Law Firms Handle Major Legal
Matters), issued Jan. 14, 1999.
---------------------------------------------------------------------------
In 2004, the Nantong Municipal Judicial Bureau issued
a document intended to ``strengthen the work of guidance over
lawyers handling important cases. This document required
lawyers to report to the government when handling cases of
various kinds, including any lawsuits involving ten or more
plaintiffs and any proposed not-guilty plea in criminal
proceedings.\23\
---------------------------------------------------------------------------
\23\ Nantong Judicial Bureau, Guanyu jinyibu jiaqiang dui lushi
banli zhongda anjian zhidao gongzuo de yijian (Opinion on Further
Strengthening the Work of Guidance over Lawyers in Their Handling of
Major Cases), February 18, 2004, available at http://www.ntda.gov.cn/
wjzxqw/W2580001035.htm (Chinese; URL does not function as of October 5,
2009); http://www.cecc.gov/pages/virtualAcad/
index.phpd?showsingle=50420 (English translation).
---------------------------------------------------------------------------
In 2006, the Henan provincial authorities issued a
document imposing more supervisory controls on lawyers handling
``important, sensitive, and mass cases.'' \24\
---------------------------------------------------------------------------
\24\ Henan Judicial Department, Guanyu jiaqiang dui lushi banli
zhongda, min'gan, quntixing anjian zhidao jiandu de yijian (Opinion on
Strengthening Guidance and Supervision over Lawyers in Their Handling
of Major, Sensitive, or Mass Cases), Mar. 28, 2006, available at http:/
/tinyurl.com/ycba85y.
---------------------------------------------------------------------------
In 2006, the Shenyang municipal authorities issued a
regulation requiring lawyers to report to, and seek
instructions from, the relevant municipal authorities before
undertaking ``important,'' ``difficult,'' or ``sensitive''
cases.\25\
---------------------------------------------------------------------------
\25\ See Shenyang Shi lushi chengban zhongda yinan min'gan anjian
qingshi baogao de ruogan yijian (Several Opinions on Reporting and
Requesting Instructions When Shenyang Lawyers Handle Important,
Difficult, or Sensitive Cases), April 2006, cited in Shenyang lushi
chengban min'gan anjian xu qingshi (Shenyang Lawyers Must Seek
Instructions When Handling Sensitive Cases), http://
www.legalinfo.gov.cn/moj/lsgzgzzds/2006-04/20/content--303794.htm
(Chinese Ministry of Justice official web site).
---------------------------------------------------------------------------
In 2006, a similar regulation with nationwide effect
and specifically covering multiparty litigation (cases with 10
or more plaintiffs) was issued by the All-China Lawyers
Association (``ACLA''), a government-controlled body that,
together with the national Ministry of Justice and its local-
government counterparts, is in charge of lawyers in China. The
regulation, entitled ``Guidance Opinion on the Undertaking by
Lawyers of Mass Cases,'' requires lawyers to report to local
authorities and ``accept supervision and guidance.'' \26\
---------------------------------------------------------------------------
\26\ See generally Human Rights Watch,``A Great Danger for
Lawyers'':New Regulatory Curbs on Lawyers Representing Protestors
(December 2006). This report contains a translation of the ACLA
document.
---------------------------------------------------------------------------
In 2006, lawyers were specifically forbidden to
represent clients seeking compensation for injuries in a
chemical plant explosion.\27\
---------------------------------------------------------------------------
\27\ See Zheng Yi, ``Lushi bu de jieru'' dui shei you li (To Whose
Benefit Is It that ``Lawyers May Not Get Involved''?), sina.com.cn,
http://news.sina.com.cn/o/2006-08-24/02269830142s.shtml (reprinted from
Jiangnan Shibao (Jiangnan Times)). I have not seen the original
document containing this prohibition, if one exists.
---------------------------------------------------------------------------
In 2008, several dozen lawyers volunteered to
represent plaintiffs in the Sanlu scandal, in which four babies
died and some 53,000 suffered kidney damage as a result of
melamine-tainted milk.\28\ It is reported, however, that
lawyers were warned by the central government not to take such
cases.\29\
---------------------------------------------------------------------------
\28\ See Xu Kai, Zhiyuan lushi tuan wei ``shenjieshi ying'er''
suopei ``zhizhao'' (Volunteer Lawyers Group Offers Services in Seeking
Compensation for ``Kidney Stone Babies''), Caijing (Finance and
Economy), September 13, 2009, available at http://tinyurl.com/yawfrm5;
China Human Rights Lawyers Concern Group, Support Chinese Lawyers to
Provide Voluntary Legal Aid to Victims of Contaminated Milk Powder,
September 25, 2008, http://www.chrlcg-hk.org/?p=322.
\29\ See Dunai suopei falu yuanzhu shouzu (Legal Aid in Poisoned
Milk Compensation Cases Encounters Obstacles), Da Gong Bao (Hong Kong),
October 5, 2008, available at http://tinyurl.com/yejem46. It should be
noted that the Da Gong Bao is normally extremely supportive of the
Chinese government.
---------------------------------------------------------------------------
In 2009, attorney Li Dunyong was forbidden by court
officials in Qinghai province from representing Tibetan
filmmaker Dhondup Wangchen, and attorney Li Fangping was
prevented from representing two Tibetan monks in Gansu
province.\30\
---------------------------------------------------------------------------
\30\ See Radio Free Asia, Beijing Blocks Tibet Lawyers, July 20,
2009, http://tinyurl.com/y8hy8dw.
---------------------------------------------------------------------------
In 2009, several lawyers were threatened with
disbarment for offering to represent Tibetan defendants in
Lhasa riot cases, and those who persisted were simply refused
permission by the authorities on the grounds that the
defendants ``already had lawyers.'' \31\
---------------------------------------------------------------------------
\31\ See Nirmala Carvalho, ``Mei yong'' lushi bei gan; lama bei pan
wuqi tuxing (``Useless'' Lawyers Driven Away; Lamas Sentenced to Life
Imprisonment), Asianews.it, July 21, 2009, http://tinyurl.com/yce2757;
see also Kanbujian de Xizang (Woeser's Blog) (Invisible Tibet), June 8,
2009, http://tinyurl.com/yay6tan.
---------------------------------------------------------------------------
In 2008 and 2009, several local governments have
issued regulations requiring lawyers to notify authorities and
accept guidance when handling certain types of cases deemed
sensitive or otherwise important. I have found regulations from
the cities of Yulin\32\ and Taizhou\33\ and from the county of
Zhenning.\34\
---------------------------------------------------------------------------
\32\ Yulin City Judicial Bureau, Yulin Shi sifa ju guanyu lushi zai
banli min'gan anjian he quntixing anjian zhong tuixing shiyong
chengnuoshu de tongzhi (Notice of the Yulin City Judicial Bureau on
Promoting the Use of Written Undertakings When Lawyers Handle Sensitive
and Mass Cases), July 7, 2009, available at http://www.yulin.gov.cn/
info/94599 (requiring lawyers to obtain written promises from clients
not to engage in petitioning to higher authorities, and stating that
``interfering with the normal work of state organs'' shall mean the
automatic dissolution of the lawyer-client relationship).
\33\ Taizhou City Judicial Bureau, Guanyu guanche sheng ting
``Guanyu jiaqiang dui lushi banli min'ganxing, quntixing anjian zhidao
jiandu gongzuo de tongzhi'' de yijian (Opinion on Implementation of the
Provincial [Judicial] Department's ``Notice on Strengthening the Work
of Guidance and Supervision Over Lawyers in Their Handling of Sensitive
and Mass Cases''), issued August 25, 2008, available at http://
tinyurl.com/y9khndt. This document implements a regulation applicable
to all of Jiangsu Province.
\34\ Zhenning County Judicial Bureau, Shenhua Zhongguo tese
shehuizhuyi falu gongzuozhe renshi, qianghua min'gan anjian he
quntixing anjian bianhu daili zhidao guanli (Deepen the Consciousness
of Socialist Legal Workers with Chinese Characteristics, Strengthen
Guidance and Administration Over Defense and Representation in
Sensitive and Mass Cases), August 17, 2009, available at http://
sfj.anshun.gov.cn/xq--znx/gzdt/display.asp?id=104 (requiring lawyers to
``keep the big picture in mind'' and to ``guarantee stability.'')
---------------------------------------------------------------------------
G. Continued Disappearance of Gao Zhisheng
Finally, the continued disappearance of attorney Gao Zhisheng
deserves a paragraph of its own. Gao was taken into custody in February
2009, presumably by state security agents.\35\ There has been no
acknowledgment since that time by any Chinese governmental authorities
that he is in custody, despite various requirements in Chinese law that
notice be given to family members and charges brought within a
specified time.\36\ The length of time of this unacknowledged detention
is extremely unusual--to the best of my knowledge, virtually
unprecedented. I know of no way in which it can be justified even under
the elastic and forgiving provisions of Chinese law regarding police
detention powers.
---------------------------------------------------------------------------
\35\ Because Gao was under constant surveillance by state security,
it is not plausible to suppose that his disappearance occurred without
their knowledge and cooperation. See Evan Osnos, Letter from China:
What Happened to Gao Zhisheng?, The New Yorker, April 3, 2009,
available at http://tinyurl.com/dmoeuq.
\36\ For a summary of various coercive measures available to
government authorities and the timelines applicable to each, see Donald
Clarke, Legal Analysis of Liu Xiaobo's Detention, Chinese Law Prof
Blog, December 13, 2008, http://tinyurl.com/54w82.
---------------------------------------------------------------------------
iii. conclusions
It might be thought that the continuing harassment of lawyers, and
particularly the efforts to prevent lawyers from representing certain
disfavored clients, is actually encouraging evidence that they can be
effective in court. Why bother stopping lawyers from doing their job if
the system already prevents them from doing it effectively? There is a
certain degree of truth in this perspective. Although it is
inconceivable that courts could make judgments contrary to those
desired by political
authorities in any case the latter deemed important, a skilled and
zealous lawyer can nevertheless make the job much more difficult, and
what the state finds difficult to do, it may do less of in the future.
On the other hand, the state's main concern is perhaps less with
what activist lawyers do in court than with what they do out of it. A
persistent theme of the various regulations on the reporting of
sensitive cases discussed above is a concern about publicity and other
out-of-court ways in which lawyers may promote the interests of their
clients or their own causes. This concern dovetails perfectly with what
activist lawyers themselves say about their approach: that the key is
not winning in court, but in using the court action, regardless of
outcome, to bring about broader social changes.
Thus, clamping down on lawyers does not necessarily mean that they
were being too effective as lawyers in courts, which would imply that
courts had some substantial degree of independence; it may mean simply
that they are being too troublesome, relative to what the state is
willing to permit at the time of the clampdown, as social activists who
happen to be lawyers. And indeed, the clampdown on lawyers has been
accompanied by a clampdown on activist NGOs and individuals more
generally.
Some observers have suggested that the clampdown was related to the
60th-anniversary celebrations on October 1, and that once they were
past, the government would relax. I believe that the restrictive
measures I have listed here have a history that is impossible to
explain solely by reference to the 60th-anniversary celebrations, and
that they are part of a more general tightening of political control
over courts and all those involved with them. Now that October 1 is
behind us, time will tell which interpretation is correct.
Finally, let us not forget that it is possible, and perhaps even
likely, that in this as in other matters there are divisions within the
leadership. There is clearly a good argument to be made that allowing
more space to lawyers representing the disadvantaged enhances social
stability instead of endangering it by bringing grievances into the
system. With the benefit of hindsight, Zhao Ziyang in his memoirs
recognized the social value of groups and individuals truly independent
of the state.\37\ Perhaps other leaders during their terms of office
will be forced to the same conclusion.
---------------------------------------------------------------------------
\37\ See Zhao Ziyang, Prisoner of the State 258 (2009).
---------------------------------------------------------------------------
appendix 1
Accord With the Tide of History, Directly Elect Beijing Bar Association
Directors--An Appeal to All Beijing Lawyers, Beijing's Justice Bureau,
and the Beijing Bar Association\38\
According to the constitution, attorney law, and regulations
governing the registration and management of social organizations,
lawyers have the right to free association and therefore Beijing's Bar
Association should be composed of the capital's lawyers ``voluntarily
organizing and carrying out the common wishes of its members through
this non-profit social organization.'' But it is evident that in the 30
years the Beijing Bar Association has been in existence, it has not
accorded with these legal guidelines in its establishment or its
activities, especially in safeguarding lawyers legal rights and
protecting lawyers rights and interests. The majority of lawyers
complain about this state of affairs, but feel powerless to change it
because the bar association did not come into being via the voting of
its members. This situation must be changed.
---------------------------------------------------------------------------
\38\ Source:http://www.chinafreepress.org/publish/case/Accord--
With--the--Tide--of--History-- Directly--Elect--Beijing--Bar--
Association--Directors.shtml. As of October 5, 2009, the URLs for the
English translations of the documents in Appendices 1, 2, and 3 do not
function.
---------------------------------------------------------------------------
1. The qualifications of the present directors of the Beijing Bar
Association is below that required by law and the Beijing Bar
Association has no legal regulations and procedures for electing
directors.
Regulations are the constitution of social organizations. According
to the laws and regulations governing social organizations, the Beijing
Bar Association's rules and election procedures should be determined by
member voting, with either a 2/3 majority of more then 1/2 required for
a motion to pass. But according to the web site, the present Bar
Association accords with regulations promulgated in 1982 and formalized
in 1990, but they have never been voted on by the Bar's members, never
mind passed by a majority vote, and have never been publicized. For
these reasons these rules and regulations should have no legal effect.
The president, director, and supervisory board of the Beijing Bar
Association have not been popularly elected by the Bar's members, and
therefore should not have legal standing. According to an
investigation, more than 90 percent of Beijing lawyers have never
participated in any election activity of the Bar Association, and have
never been informed of any voting activities. At present the president,
director, and supervisory board are chosen among partners of major law
firms with large incomes. It can be said that the present Beijing Bar
Association is a kind of ``Rich Man's Club,'' helping these fat cats
expand their influence and attract new clients.
We earnestly appeal that when the new session of the Beijing Bar
Association convenes, a truly democratic election of directors should
take place. The chief principles should be: 1. All the members of the
Bar should elect by a majority vote the president, directors, and
supervisory board of the Bar; 2. The Bar's rules and regulations should
be passed by a 2/3 majority vote of its members; 3. Elect a leadership
that truly represents the interests of the members of the Bar; 4.
Annual fees should be agreed on by a 2/3 majority vote (and the current
fees should be reduced by more than 50 percent).
In order to promote the democratic administration of the Beijing
Bar Association, we as a group of Beijing lawyers have organized
ourselves and over the course of two months of efforts have drafted the
``Beijing Bar Association Election Procedures (Draft Proposal).''
Democracy is not a far off ideal. Please submit your suggestions
for amending this draft proposal and then vote on it and this sacred
ideal can be realized!
Contact person: Cheng Hai 13601062745 ([email protected])
August 26, 2008.
appendix 2
The Beijing Bar Association's Response to a Small Number of Lawyers and
Their So-Called ``Call For Direct Elections to the Beijing Bar
Association'' \39\
To: All Beijing Lawyers, All Beijing Law Offices
---------------------------------------------------------------------------
\39\ Source: http://www.bmla.org.cn/bjlawyers2/news/show--
content.jsp?infoID=IC02000024280 (Chinese); http://
www.chinafreepress.org/publish/case/The--Beijing--Bar--Association--s--
Response--to-- a--Small--Number--of--Lawyers--and--Their--So-Called--
Call--For--Direct--Elections--to--the--Beijing--Bar-- Association.shtml
(English).
---------------------------------------------------------------------------
Recently a small number of lawyers jointly issued a petition and
posted it on the Internet entitled ``Accord With the Tide of History,
Directly Elect the Beijing Bar Association--Announcement To All Beijing
Lawyers, Beijing Justice Bureau, and the Beijing Bar Association.'' The
announcement purported to promote the cause of democracy, and
questioned the legality of the standing of the Beijing Bar Association.
Soon after, some Beijing lawyers began receiving text messages from
these lawyers, baiting them by calling for reduced Bar Association
membership fees, a restructuring of the tax system, and stirring up
lawyers with calls for so-called ``Direct Elections to the Beijing Bar
Association.''
The Beijing Bar Association hereby seriously states: We are a
legally constituted social organization, an autonomous professional
organization representing the interests of all Beijing lawyers, and
manages in compliance with the ``Lawyer's Law'' and ``Regulations
Regarding the All-China Bar Association.'' The Beijing Bar Association
through its president and secretariat letterbox, director reception
day, representative draft resolution system etc. solicits the opinions
and suggestions of its members and accords with the rules of its
profession in democratic decisionmaking, democratic management and
democratic supervision. Any individual who uses text messages, the web
or other media to privately promote and disseminate the concept of
direct elections, express controversial opinions, thereby spreading
rumors within the Beijing Bar Association, confuse and poison people's
minds, and convince people of circumstances that do not exist regarding
the so-called ``Call For Direct Elections For the Beijing Bar
Association'' is illegal. They are using the opportunity of the end of
the tenure of the present Bar Association administration to manipulate
the enthusiasm of some lawyers to participate in the management
process, using the banner of ``Democratic Bar Association Management,''
is a vain attempt to evade the supervision of the Justice Bureau and
the Bar Association's professional management.
Beijing's lawyers must maintain calm heads and see the real nature
of this effort on the part of a small number of lawyers to ``Promote
Direct Elections to the Beijing Bar Association'' and support the
Beijing Bar Association's correct political stance and social efforts
and resist the improper expression of this small number of lawyers and
not be deceived by them.
This year the Beijing Bar Association is changing leaders, to
ensure the smooth transition, the election work has already been
prepared. The Beijing Bar Association is doing everything in its power
solicit the opinions of the majority of lawyers and ceaselessly perfect
its work and promote the healthy development of the Beijing legal
profession.
appendix 3
Our Response to the Beijing Bar Association's ``Serious Statement''
\40\
On Friday September 5, the Beijing Bar Association on its official
web site published ``The Beijing Bar Association's Serious Statement in
Response to a Small Number of Lawyers' Call for So-Called `Direct
Elections to the Beijing Bar Association.' '' The statement said:
``Recently a small number of lawyers jointly issued a
petition and posted it on the Internet entitled ``Accord With the Tide
of History, Directly Elect the Beijing Bar Association--Announcement To
All Beijing Lawyers, Beijing Justice Bureau, and the Beijing Bar
Association.'' The announcement purported to promote the cause of
democracy, and questioned the legality of the standing of the Beijing
Bar Association. Soon after, some Beijing lawyers began receiving text
messages from these lawyers, baiting them by calling for reduced Bar
Association membership fees, a restructuring of the tax system, and
stirring up lawyers with calls for so-called ``Direct Elections to the
Beijing Bar Association.'' Any individual who uses text messages, the
web or other media to privately promote and disseminate the concept of
direct elections, express controversial opinions, thereby spreading
rumors within the Beijing Bar Association, confuse and poison people's
minds, and convince people of circumstances that do not exist regarding
the so-called ``Call For Direct Elections For the Beijing Bar
Association'' is illegal. They are using the opportunity of the end of
the tenure of the present Bar Association administration to manipulate
the enthusiasm of some lawyers to participate in the management
process, using the banner of ``Democratic Bar Association Management,''
is a vain attempt to evade the supervision of the Justice Bureau and
the Bar Association's professional management.''
---------------------------------------------------------------------------
\40\ Source: http://www.gongmeng.cn/sub--r.php?zyj--id=1920
(Chinese); http://www.chinafreepress.org/publish/case/Our--Response--
to--the--Beijing--Bar--Association--s--Serious--Statement.shtml
(Chinese).
---------------------------------------------------------------------------
We are the lawyers who jointly issued the statement: ``Accord With
the Tide of History, Directly Elect the Beijing Bar Association--
Announcement To All Beijing Lawyers, Beijing Justice Bureau, and the
Beijing Bar Association.'' In addition to issuing this statement, we
used text messages, posted letters and other means to call on all
Beijing lawyers to demand their rights and actively participate in the
upcoming election for representatives to the Beijing Bar Association.
Our objective is clear, to mobilize the mass of Beijing lawyers to
assert their legal rights, and prevent the Beijing Bar Association from
being controlled and turning into a special interest clique. We want to
elect representatives who will defend the real interests and legal
rights of the majority of Beijing's lawyers. The Lawyer's Law clearly
states that the Bar Association is an autonomous social organization
and its representatives are chosen by election and of course it must
submit to the supervision of its members. The Bar Association
represents all lawyers. As members we feel an obligation to concern
ourselves with the outcome of this leadership transition and actively
participate in the election. All of our actions and speech have been
aimed at promoting the Bar Association's democratic election and
democratic supervision. We are doing what members of the Bar
Association should do. Our actions are both legal and proper.
But we greatly regret that the Beijing Bar Association considers
itself an entity independent of its lawyer constituency and has
completely inverted the master and servant relationship. It not only
did not support the active participation of some of its lawyer members
in its election process, but on the contrary wrote such a threatening
and alarming statement in response to this effort. It characterized our
completely reasonable call for a reduction of membership fees as
``incitement speech.'' It called our appeal for all lawyer members to
participate in the direct election of the Bar Association board and
presidency as ``the pretense of promoting democratic elections.'' It
described our networking via cell phones, the Internet and other legal
media to generate support and seek candidates as ``illicit
coordinating.'' It describes the participating, supporting, and
appealing actions of more and more lawyers as ``not understanding the
true circumstances'' and being ``misled.'' And it says that lawyers
taking the initiative as constituents and legally exercising their
right to free speech and criticizing their insufficient supervision in
the past and calling for democratic elections as ``illegal.'' And it
portrays a group of lawyers actively promoting the democratic self-
government activity of citizens as ``comprehensively violating the
present Bar Association management system, the justice system, and the
political system.'' We are deeply sorry and regretful that at this time
in the 21st century that our country is trying to carry out the
socialist democratic rule of law, the Beijing Bar Association would
issue such a strong Cultural Revolution-like statement.
Orderly participation by citizens in promoting progress of the
democratic rule of law, pursuing people being the master of their own
affairs, is our country's people and the ruling party's objective of
struggle. As lawyers actively promoting the democratic election of the
representatives of our professional organization, its democratic
policymaking and democratic supervision completely accords with the
tide of history, and contrary to opposing the political system as the
Beijing Bar Association alleges, it actively accords with and puts into
practice the political system. This autumn the Beijing Bar Association
will have its regularly scheduled leadership change. We call on all
Beijing lawyers to exercise their legal rights and demand to
participate in the democratic election of new Bar Association
representatives. We also hope that the Beijing Bar Association, as an
autonomous organization of lawyers, accords with the law and carries
out our called-for direct election of its representatives, reduces the
membership fee and reflects on its work and welcomes the participation,
democratic election, policymaking, and supervision of its lawyer
constituents.
Finally, in view of the Bar Association's ``Serious Statement''
slandering our legal action, we urgently call on the Bar Association to
publicize who participated in the drafting and disseminating of this
``Serious Statement'' and that they issue a public apology. We will
also continue to look into the legal liability of those who
participated in this tortuous action.
As Beijing Bar Association members, we have the right to reiterate:
1. The forthcoming leadership transition of the Beijing Bar
Association should be the result of a direct democratic election. This
process should be guided, supervised and carried out according to law
by the municipal justice bureau and all lawyer members of the Beijing
Bar Association should participate.
2. The direct election of the Beijing Bar Association's president
and board of directors should begin from this leadership transition.
3. To ensure the protection of the legal rights of Beijing's
lawyers to select the Bar Association's representatives, and to promote
effective supervision of the Bar Association's work, our draft copy of
the ``Beijing Bar Association's Election Regulations'' (name can be
changed) should be put to a vote and passed if 1/2 the Bar Association
membership approves.
4. Draft the Beijing Bar Association's written regulations and
submit it to the membership's review and evaluation.
5. Bar Association membership fees should be reasonably readjusted,
with at minimum a 50 percent decrease implemented.
6. Immediately audit and publicize the Bar Association's past
years' revenue and expenditures, and publicize the decisionmaking
process and revenue and expenditures of the Bar Association's office
building.
7. Immediately remove the discriminatory ``W'' (``waidi'') mark on
the professional work cards of lawyers from outside Beijing, and issue
an apology to these lawyers. Beijing lawyers participating in the
``Accord With the Tide of History, Directly Elect the Beijing Bar
Association--Announcement To All Beijing Lawyers, Beijing Justice
Bureau, and the Beijing Bar Association'' campaign.
Saturday September 6, 2008.
______
Prepared Statement of Gardner Bovingdon
october 7, 2009
human rights and china
The Universal Declaration of Human Rights (UDHR), adopted by the UN
General Assembly in 1948, is widely cited as an articulation of human
rights acknowledged around the world, since so many governments were
signatory. It identifies among those rights freedom of speech,
assembly, and association, as well as freedom of religious belief and
practice. It also articulates a right to ``seek, receive, and impart
information and ideas through any media and regardless of frontiers.''
http://www.un.org/en/documents/udhr/#atop
Beijing has long challenged the assertion that there are universal
human rights. The mildest objection has been that different cultures
define human values, and rights, differently, and that these
differences must be respected. This line was advanced in the 1993
Bangkok Declaration on human rights, to which Beijing was signatory.
Some critics have more sharply denounced Americans' criticisms of
China's human rights record as interference in China's ``internal
affairs.'' Chinese officials have long worried that foreign
governments, including the United States Government, have invoked
concern for human rights in China as a cloak for attempts to bring
about ``peaceful evolution'' or, more recently, a ``Color Revolution,''
both euphemisms for regime change. Similarly, officials have worried
since at least the mid-1990s that behind criticisms of human rights
abuses in Tibet and Xinjiang lie plots to separate those territories
from China.
We do well to acknowledge these concerns, and therefore must take
pains to avoid even the appearance of raising the matter of human
rights to serve other, strategic aims. When we speak of human rights we
ought to focus, first and last, on the conditions of human
flourishing--on the ``dignity and worth of the human person,'' as the
visionary UDHR puts it--and not on scoring political points.
That said, the argument that the human rights identified in the
UDHR do not apply to China or require modification because they are
incompatible with Chinese culture is unpersuasive, for at least two
reasons. First, the PRC Constitution announces in Article 35 that
Chinese citizens ``enjoy freedom of speech, of the press, of assembly,
of association, of procession, and of demonstration.'' Article 36 adds
that citizens have ``freedom of religious belief,'' and Article 41
recognizes the right to ``criticize and make suggestions to any state
organ or functionary.'' Second, hundreds of thousands of Chinese
citizens, if not many times that number, have sought to exercise the
very freedoms codified in the Constitution in 1982. They have published
wall posters, handwritten manifestoes, journals, and books; they have
spoken out in public; they have joined political and religious
organizations; and they have demonstrated and marched peacefully, to
express political or religious views. Put simply, Chinese citizens have
shown that they consider these to be rights by exercising them.
what happened in urumchi on july 5, 2009?
Did the events of July 5 begin with an attempt by Uyghurs to
exercise such rights peacefully? It would appear so, but our
information about the course of events on that day is still meager.
There is evidence that the day began with a peaceful protest against
the government's handling of a factory brawl in Shaoguan, Guangdong,
the night of June 25 and 26, in which two Uyghurs were killed and more
than one hundred injured. There is also abundant evidence of violence
against property and people on that day. A number of questions remain:
Who organized the protest? Chinese authorities blame
Rabiya Qadir (Rebiya Kadeer) and others abroad. She denies the
charge. It has been reported that students in Urumchi
circulated comments on the Internet about the handling of the
Shaoguan incident and proposing a demonstration. It also
appears that the government, knowing of these comments,
detained students on the morning of July 5 to prevent them from
participating in the demonstration. Whether or not figures
outside Xinjiang played some role in organizing the protest,
there is strong evidence that locals inside Xinjiang did have a
role. Moreover, the large number of participants in the protest
suggests that we must look locally for its sources. In plain
terms, no amount of orchestration from outside Xinjiang could
have produced a protest or riot of this scale in the absence of
large numbers of people willing to participate.
Did police respond to violence, or did police action
incite demonstrators to violence? There is insufficient
information to answer this question now. Chinese sources argue
the former, Uyghur organizations abroad the latter. The heavy
politicization of the events and their aftermath make it
unlikely that reliable, unbiased information will emerge soon.
What were the sources, and aims, of the protest?
Again, it is impossible to answer this question definitively.
The Shaoguan incident was clearly a spark, but Uyghurs have
raised many other grievance in prior years, and there is
considerable evidence of widespread Uyghur dissatisfaction with
Xinjiang's governance.\1\ In blaming the July 5 events on
outside instigators and local manipulators, and in claiming
that most participants were ``members of the masses who did not
understand the real situation''--a standard rhetorical figure--
the Chinese government has sought to direct attention away from
Uyghur grievances and the question of how they might
legitimately be expressed. The
government has justified its very strong police and judicial
response by characterizing the July 5 events as ``terrorist''
and an episode of ``beating, smashing, and looting.'' It is
safe to say, however, that the police response, the official
characterization of the episode, and the judicial handling of
accused participants are likely to have a chilling effect on
those considering protest or public dissent in the future.
---------------------------------------------------------------------------
\1\ Bovingdon, Gardner. 2002. ``The Not-So-Silent Majority: Uyghur
Resistance to Han Rule in Xinjiang.'' Modern China 28 (1):39-78.
Bovingdon, Gardner. 2004. ``Autonomy in Xinjiang: Han Nationalist
Imperatives and Uyghur Discontent.'' Policy Studies (11):1-64.
Bovingdon, Gardner. Forthcoming 2010. The Uyghurs: Strangers in Their
Own Land. New York: Columbia University Press.
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human rights in xinjiang
The evidence on human rights in Xinjiang over the last year is
mixed, and there is some justification for cautious optimism. On the
whole, however, the human rights situation in Xinjiang in 2008-9
appears no better than, and indeed in some regards worse than, in years
prior.
One bright spot was government decisions to free individuals
detained for questioning on what appear to have been political grounds.
The most prominent example was the outspoken Uyghur economist Ilham
Tohti, arrested several times in connection with his blog ``Uighur
Online,'' and arrested once again after the July 5 riots. He was
released August 23.
Another bright spot was the decision to invite a group of foreign
reporters to Urumchi to inspect the aftermath of the July 5 riots
firsthand. This was a marked departure from the media blackout Beijing
imposed in the wake of the March 2008 protests in Tibet.
On the other hand, various aspects of the official response to the
July 5 events are worrying. Within a day the government had shut down
Internet service, cut off various text messaging services, and
curtailed cell phone service. Officials announced soon after the July 5
events that they had shut down the Internet to ``to quench the riot
quickly and prevent violence from spreading to other places.'' A check
of major government and news web sites in Xinjiang this morning
confirmed that they are still inaccessible more than 3 months later. It
should be noted that whatever the intention, shutting down modes of
electronic communication abrogates the stipulation in the UDHR that all
have a right to ``seek, receive, and impart information and ideas
through any media and regardless of frontiers.''
Second, there is evidence that officials used a very free hand in
detaining individuals in connection with the events. Human rights
organizations have argued that the Chinese government ``criminalizes''
the public expression of political dissent in Xinjiang, and the
handling of the July 5 protesters unfortunately confirms that
suspicion--as did, unhappily, the detention of large numbers of Uyghurs
in the runup to the 2008 Summer Olympics.\2\
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\2\ Becquelin, Nicolas. 2004. ``Criminalizing Ethnicity: Political
Repression in Xinjiang.'' China Rights Forum (1):39-46.
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Third, the government has sought to discourage lawyers and law
firms from handling the cases of individuals accused of participating
in the July 5 events. It has also announced the intention to select and
prepare the lawyers who will try the cases, with the worrying
implication that the lawyers chosen will lack experience with criminal
cases and will have received prior instructions on how cases ought to
be decided.\3\ Furthermore, in very publicly characterizing the July 5
events as a ``riot,'' and in attributing its organization and aims to
``separatists'' and ``terrorists,'' the government has dramatically
compromised the likelihood that the accused will enjoy a presumption of
innocence and receive fair trails.
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\3\ http://www.cecc.gov/pages/virtualAcad/
index.phpd?showsingle=128444. While it may seem an odd choice to cite
CECC materials in testimony before the CECC, I have done so only after
confirming the sources they cite and determining to my satisfaction
that the summaries and arguments are sound and comprehensive.
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Over the last year, officials have also placed further restrictions
on Uyghur religious belief and practice, more closely regulating--and
possibly purging the ranks of--female clerics and further discouraging
religiosity among minors.\4\
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\4\ http://www.cecc.gov/pages/virtualAcad/
index.phpd?showsingle=125102 and http://www.cecc.gov/pages/virtualAcad/
index.phpd?showsingle=125058. Please see the previous footnote for a
justification of these citations.
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