[JPRT, 108th Congress]
[From the U.S. Government Publishing Office]
CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
ANNUAL REPORT
2003
=======================================================================
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
__________
OCTOBER 2, 2003
__________
Printed for the use of the Congressional-Executive Commission on China
Available via the World Wide Web: http://www.cecc.gov
______
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CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
LEGISLATIVE BRANCH COMMISSIONERS
House Senate
JIM LEACH, Iowa, Chairman CHUCK HAGEL, Nebraska, Co-Chairman
DOUG BEREUTER, Nebraska CRAIG THOMAS, Wyoming
DAVID DREIER, California SAM BROWNBACK, Kansas
FRANK WOLF, Virginia PAT ROBERTS, Kansas
JOE PITTS, Pennsylvania GORDON SMITH, Oregon
SANDER LEVIN, Michigan MAX BAUCUS, Montana
MARCY KAPTUR, Ohio CARL LEVIN, Michigan
SHERROD BROWN, Ohio DIANNE FEINSTEIN, California
DAVID WU, Oregon BYRON DORGAN, North Dakota
EXECUTIVE BRANCH COMMISSIONERS
PAULA DOBRIANSKY, Department of State*
GRANT ALDONAS, Department of Commerce*
D. CAMERON FINDLAY, Department of Labor**
LORNE CRANER, Department of State*
JAMES KELLY, Department of State*
John Foarde, Staff Director
David Dorman, Deputy Staff Director
* Appointed in the 107th Congress; not yet formally appointed in
the 108th Congress.
** Resigned July 2003.
(ii)
C O N T E N T S
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Page
I. Executive Summary and List of Recommendations................. 1
II. Introduction................................................. 5
III. Monitoring Compliance With Human Rights..................... 13
(a) Rights of Criminal Suspects and Defendants............... 14
(b) Protection of Internationally-Recognized Labor Rights.... 23
(c) Freedom of Religion...................................... 28
(d) Freedom of Expression.................................... 33
(e) Economic, Social, and Cultural Rights.................... 42
(f) Freedom of Residence and Travel.......................... 50
IV. Maintaining Lists of Victims of Human Rights Abuses.......... 53
V. Development of Rule of Law and Civil Society.................. 54
(a) Nongovernmental Organizations and the Development of
Civil Society.............................................. 55
(b) Legislative Reform and Transparency...................... 57
(c) The Judicial System...................................... 62
(d) Commercial Rule of Law and the Impact of the WTO......... 62
(e) Legal Restraints on Government Power..................... 69
VI. Corporate Social Responsibility.............................. 73
VII. Tibet....................................................... 77
VIII. Recent Developments in Hong Kong........................... 82
IX. Appendix: Commission Activities in 2002 and 2003............. 85
X. Endnotes...................................................... 89
CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
2003 ANNUAL REPORT
I. Executive Summary and List of Recommendations
The Commission finds that human rights conditions in China
have not improved overall in the past year. The Chinese
government continues to violate China's own constitution and
laws and international norms and standards protecting human
rights. The Commission recognizes that some developments are
underway in China, particularly in the area of legal reform,
that could provide the foundation for stronger protection of
rights in the future. However, these changes have been
incremental, and their overall impact has been limited. Such
limitations illustrate the complexity of the obstacles the
Chinese people face in their continuing effort to build an
accountable government that respects basic human rights and
freedoms.
Chinese citizens are detained and imprisoned for peacefully
exercising their rights to freedom of expression, association,
and belief. Law enforcement authorities routinely ignore
Chinese domestic law, or exploit loopholes in the law, to
detain suspects and defendants for periods greater than Chinese
law or international human rights norms and standards permit.
China's poor record of protecting the internationally
recognized rights of its workers has not changed significantly
in the past year. Chinese workers cannot form or join
independent trade unions, and workers who seek redress for
wrongs committed by their employers often face harassment and
criminal charges. Moreover, child labor continues to be a
problem in some sectors of the economy, and forced labor by
prisoners is common. Although the government has begun to
modify its policy of discrimination against migrant workers
from rural areas, these workers still face serious
disadvantages as they seek employment away from their home
regions. Workplace health and safety conditions are poor in
many Chinese workplaces. Fatalities among mine workers are
especially common. Despite having enacted new and relatively
progressive laws designed to improve health and safety
standards, the Chinese government lacks the will or capacity to
enforce these laws.
Scores of Christian, Muslim, and Tibetan Buddhist
worshippers have been arrested or detained during 2003. Chinese
Catholics, Protestants, Muslims, and Buddhists seeking to
practice their faith outside officially-sanctioned churches,
mosques, and temples are subject to harassment and repression.
Government authorities continue to repress spiritual groups,
including the Falun Gong spiritual movement, chiefly through
the use of anti-cult laws.
Chinese citizens do not enjoy freedom of speech or freedom
of the press. The Chinese government suppresses freedom of
expression in a manner that directly contravenes not only
international human rights norms and standards, but also
China's own constitution. Some individuals and groups that
cannot obtain government authorization manage to publish on a
small scale, but only by employing methods that risk
administrative and criminal punishment.
China's new family planning law retains the broad elements
of China's long-held policies on birth limitation. These
include mandatory restrictions on absolute reproductive freedom
and the use of coercive measures, specifically severe economic
sanctions, to limit births. However, the new law also mandates
prenatal and maternal health care and services for women.
The Chinese government is taking significant steps to
address HIV/AIDS, but progress has been hard to achieve and
public ignorance of the disease remains widespread. Public
health policies in some provinces have fostered the spread of
HIV/AIDS and have left patients and orphans in dire distress.
Complaints by these victims have been met with fear and
forceful repression.
China has built a progressive legal framework to protect
women's rights and interests, but loopholes remain, and
implementation of existing laws and regulations has been
imperfect, leaving Chinese women vulnerable to pervasive abuse,
discrimination, and harassment at home and in the workplace.
Recent policy changes in China indicate progress toward
scaling back the restrictive residency registration (hukou)
system, allowing rural migrants in urban areas to more easily
obtain status as legal residents. In a welcome development, the
Chinese government abolished an often abused administrative
detention procedure called ``custody and repatriation'' in
response to public outrage over official complicity in the
death of a detainee. But local governments often fail to
implement central government policy directives adequately, and
ingrained discriminatory attitudes and practices toward
migrants impede reform.
China has continued its efforts to reform and strengthen
basic legal institutions. Experimental efforts by local
people's congresses and local administrative bodies, if
sustained and further expanded, could improve China's human
rights performance by improving the accountability of public
officials and transforming expectations
regarding the role of public opinion in governance. The Chinese
government has made progress in its effort to improve the
capacity, efficiency, and competence of its judiciary and is
considering reforms that may enhance judicial independence in
limited respects. Accession to the WTO has had a positive
impact in the areas of legislative and regulatory reforms by
raising awareness of the importance of transparency at all
levels of government. It is also helping to drive positive
reforms in China's judiciary.
Despite the long-term promise of these changes, their
overall impact remains limited at present. Although local
governments have attempted to provide more information to their
citizens and have begun to open their processes to public
scrutiny, public hearings and real consideration of input by
the public are limited in practice. The judiciary continues to
be plagued by complex and interrelated problems, including a
shortage of qualified judges, pervasive corruption, and
significant limits on independence.
Legal restraints on government power remain weak in
practice. Nevertheless, Chinese citizens are using existing
legal mechanisms to challenge state action in increasing
numbers and are exhibiting signs of greater empowerment in
confronting the state in some areas. Prompted in part by an
official focus on constitutional development, Chinese citizens
engaged in a spirited discussion of constitutionalism for much
of the year. In mid-2003, however, central authorities became
concerned about the scope of this promising discourse and
prohibited discussion of constitutional amendments and
political reform in the media or in unapproved academic forums
until further notice.
The Chinese government opened a preliminary dialogue with
envoys of the Dalai Lama during late 2002 and 2003. The Dalai
Lama's unique stature positions him to help ensure the survival
and development of Tibetan culture, while contributing to
China's stability and prosperity. Although the envoys' visits
are a positive step, repression of ethnic Tibetans continues
and the environment for Tibetan culture and religion is not
improving.
Recommendations
The Commission works to implement its recommendations until
they are achieved. Thus, in addition to the recommendations
made in the 2002 report, the Commission makes the following
recommendations for 2003:
Human Rights for the Chinese People
The Chinese government made significant and
far-reaching commitments on human rights matters during
the December 2002 U.S.-China human rights dialogue. The
President and the Congress should increase diplomatic
efforts to hold the Chinese government to these
commitments, particularly the release of those
arbitrarily detained, and the unconditional invitations
to the UN Special Rapporteur on Torture and the UN
Working Group on Arbitrary Detention.
U.S. government efforts to ensure that prison
labor-made goods do not enter the United States have
been hampered by a general lack of information and
cooperation from the Chinese government. The President
should direct that the Task Force on Prohibition of
Importation of Products of Forced or Prison Labor from
the People's Republic of China (created by Title V of
P.L. 106-286) develop a database of known Chinese
prison factories to be used to bar the entry of goods
produced in whole or part in those facilities. The
database should also be used to develop lists of
Chinese exporters handling goods from these prison
manufacturing facilities.
Without urgent action, China faces an HIV/AIDS
catastrophe, yet the Chinese government response has
been tepid. The President and the Congress should
continue to raise HIV/AIDS issues at the highest levels
of the Chinese leadership during all bilateral
meetings, citing the epidemic as an international
concern that cannot be solved without the action of
China's most senior leaders.
The right to choose one's place of residence
and to travel inside one's country is not only a basic
human right but also fosters the labor mobility needed
to build a modern economy. The Congress and the
President should urge the Chinese government to take
additional measures to repeal residency restrictions
(hukou) and to continue to take concrete measures
toward ending discrimination against and abuse of
internal migrants.
U.S. government programs focused on Tibetans
in China have done much to improve conditions, but need
additional resources. The Congress should increase
funding for U.S. non-governmental organizations (NGOs)
to develop programs that improve the health, education,
and economic conditions of ethnic Tibetans living in
Tibetan areas of China, and create direct, sustainable
benefits for Tibetans without encouraging an influx of
non-Tibetans into these areas.
Religious Freedom for China's Faithful
The freedom to practice one's religious faith
is an essential right. The President and the Congress
should urge the Chinese government to reschedule
without restrictions previously-promised visits to
China by the U.S. International Commission on Religious
Freedom and the UN Special Rapporteur on Religious
Intolerance.
China's officially sanctioned religious
associations unfairly restrict the ability of Chinese
believers to practice their religions freely, and many
believers have been imprisoned for practicing religion
outside the government-controlled system. The Congress
and the President should press the Chinese government
to permit free religious practice outside these
official religious associations and release all those
imprisoned for their
religious beliefs.
Labor Rights for China's Workers
Chinese workers are frequently unaware of
their rights under Chinese law and China's
international commitments. To help bridge this gap, the
President and the Congress should expand existing
worker rights education programs, emphasizing
curriculum development and training in peer education
techniques, and should provide funding for legal
clinics that take on cases involving worker rights
under Chinese law.
U.S. government efforts to foster corporate
social responsibility at home and abroad lack focus,
coordination, and policy guidance. The President should
establish a Coordinator for Corporate Social
Responsibility to coordinate interagency policy and
programs and work with private sector actors.
Free Flow of Information for China's Citizens
The Chinese government exploits administrative
restraints to chill free expression and control the
media. The President and the Congress should urge the
Chinese government to eliminate these restraints on
publishing.
China's government continues to prevent its
citizens from accessing news from sources it does not
control, particularly from Chinese language sources.
The President and the Congress should urge Chinese
authorities to cease detaining journalists and writers,
to stop blocking news broadcasts and Web sites, and to
grant journalist visas and full accreditation to at
least two native Mandarin speaking reporters from Voice
of America's Chinese Branch. The Congress should fund
programs to develop technologies to enable Internet
users in China to access news, education, government,
and human rights Web sites that China's government
currently blocks.
Rule of Law and Civil Society for China's Citizens
A vibrant civil society and the rule of law
help a country develop politically, economically,
socially, and culturally. The President should request,
and the Congress should provide, significant additional
funds to support U.S. government and U.S. NGO programs
working to build the institutions of civil society and
rule of law in China.
As the overall U.S. government effort
supporting rule of law programs increases, certain
small-scale U.S. programs will have an impact beyond
their size and funding. The President and the Congress
should augment existing U.S. programs by making it a
priority to create a permanent Resident Legal Advisor
position at the U.S. Embassy in Beijing, and to
increase funding for the Rule of Law Small Grants
Program.
The Commission's Executive Branch members have participated
in and supported the work of the Commission, including the
preparation of this report. However, the views and
recommendations
expressed in the report do not necessarily reflect the views of
individual Executive Branch members or the Administration.
This report was approved by a vote of 21 to 1.
II. Introduction
The Commission has closely examined the specific human
rights and rule of law issues listed in Section 302 of the
United States-China Relations Act of 2002,\1\ and presents its
findings in Sections III through IX of this report. Beyond
these specific rights and issues, the Commission has considered
a number of underlying factors that might affect the future
development of human rights and the rule of law in China.
Without understanding such dynamics, any attempt to influence
the future of human rights and rule of law in China will be
ineffective. With this in mind, this report presents a short
introduction to some of these factors: the evolution of China's
position on international human rights, the recent rise of new
political leaders, the steady development of new human and
organizational resources for improvements in rights and law,
and worsening corruption in the context of the Communist
Party's monopoly on power.
China's Evolving Position on Human Rights
Two forces have dominated China's rejectionist position on
human rights since 1949: internationalist Marxist ideology,
which reached its zenith in the 1950s and 1960s, and
nationalism, now gaining strength as the market economy
develops and contradicts the ideals and economic assumptions of
Marxism.
Nationalist emotion has often driven the Chinese government
to reject Western criticism of its human rights record. The
strength of such nationalist sentiment springs from the strong
sense among Chinese elites that the West took unfair advantage
of its weakness in the 19th and 20th centuries. The Qing
Dynasty faced the rising powers of the West at a time when it
was suffering from the decay common at the end of dynastic
cycles. Overpopulation, economic and military weakness, a
corrupt bureaucracy, and popular rebellion made the empire an
easy mark for Western powers. Events forced a people who saw
themselves as the cultural and political center of the world to
confront repeated invasions and humiliations at the hands of
soldiers, traders, and missionaries from beyond the borders of
Chinese civilization. This experience ultimately produced an
angry and powerful nationalism expressed in the convulsions of
the Boxer Rebellion, the May Fourth Movement of 1919, and, more
recently, riots at U.S. diplomatic and consular missions in
China after the accidental bombing of the Chinese Embassy in
Belgrade in May 1999.
In an address to the World Conference on Human Rights in
1993, Vice Foreign Minister Liu Huaqiu expressed China's
nationalist rejection of human rights criticisms this way:
To wantonly accuse another country of abuse of human
rights and to impose the human rights criteria of one's
own country or region on other countries or regions
[is] tantamount to an infringement upon the sovereignty
of other countries and interference in the latter's
internal affairs, which could result in political
instability and unrest. . . . As a people who used to
suffer tremendously from aggression by big powers but
now enjoys independence, the Chinese have come to
realize fully that state sovereignty is the basis for
the realization of citizens' human rights.\2\
After 1949, China readily embraced the Soviet Union's
official Marxist line rejecting human rights as a capitalist
strategy to protect private property. The anti-rights synergy
of Marxism and
nationalism provided China's leaders with a retort to Western
criticisms of their human rights practices. In this spirit of
official hostility, three Chinese theorists wrote ``How Marxism
Views the `Human Rights' Question'' in the Communist Party
daily Red Flag in 1979. The article responded to the calls for
reform posted on the ``Democracy Wall'' by asserting that
``human rights is always a bourgeois slogan.'' \3\ The authors
asked sarcastically:
First of all, let us analyze what kind of ``human
rights'' the people who raise the cry of ``human
rights'' really want. . . . They declare without
reservation that ``at present it is especially
necessary to . . . advocate the study of the culture
and civilization which grew out of Christianity under
the guidance of its teachings of `peace, forgiveness,
understanding, and brotherly love' '' and so on. . . .
The Chinese people already have experience with the
ideas and teaching for which they clamor: they are a
hodgepodge of capitalism and imperialism.\4\
The Marxist equation of foreign religion with foreign
aggression fueled severe and unrelenting religious repression
even after China began to reform and open up to the world in
the late 1970s. Communist Party leaders enacted laws limiting
religious education in general, and prohibiting religious
education of the young in particular, to protect the Leninist
state's monopoly on education and information. But as Chinese
socialism faded, the laws and regulations restricting religious
organization and practice gained strength and found a new focus
on the potential threats to Chinese sovereignty posed by
domestic religious groups with foreign connections. Chinese
officials administering these laws and regulations understand
that popular religious movements in the past were often
associated with periods of dynastic decline. This reinforced
their suspicions of the growing religiosity among many Chinese
people.
Nationalist sentiment based on lingering historical
resentments and old Marxist arguments continue to make the
Chinese state inhospitable to the development of a true human
rights consciousness. At the beginning of the 21st century,
this ingrained resistance to the international consensus on
protecting individual dignity, welfare, and safety against the
arbitrary acts of a powerful state sets China apart from the
mainstream of modern nations. Many believe that the Communist
Party's arguments about human rights are designed to justify
policies that the Party would pursue in any case. In this view,
the Party's arguments are a tactic to deflect the focus of
criticism away from its own policies and on to the West, a
practice that also fuels nationalism.
By the late 1970s, the cruelties of the Cultural Revolution
convinced China's leaders of the need for certain human rights
protections even in socialist states. After Deng Xiaoping
adopted the policy of ``reform and opening up'' in 1978, China
gradually took steps to join the international discussion on
human rights. China began from a low starting point, since most
government officials and many Chinese intellectuals still
professed belief in the anti-rights dogmas of Marxism. As the
theorists cited above wrote in Red Flag in 1979:
The Chinese Constitution sets forth clear guidelines
for the upholding of the [four] cardinal principles of
socialism, the dictatorship of the proletariat, the
leadership of the Party, and Marxism, Leninism and Mao
Zedong Thought. They represent the will and interests
of the people of the entire nation. The people must
abide by them, and if they deviate from them their
democratic rights are out of the question.\5\
Deng and other Party leaders first used reformist language
at the Third Plenum of the Eleventh Central Committee in
December 1978, but those who understood these early words as a
signal for change would be silenced. One of the first to
respond was Wei Jingsheng, then an unknown electrician, but
later to become one of the most prominent of China's democracy
activists. Wei's bold criticism of the Marxist line on human
rights\6\ led to his arrest, trial and conviction in 1979 on
charges of ``counterrevolution'' and disclosing state secrets.
Wei received a 15-year prison sentence.\7\
It was not until Chinese leaders faced a torrent of
international criticism after the brutal suppression of the
democracy movement in Tiananmen Square in 1989 that they began
to abandon the rejectionist Marxist rhetoric on human rights.
The government would finally express rhetorical support for the
human rights movement in its 1991 ``White Paper on Human
Rights'':
The issue of human rights has become one of great
significance and common concern in the world community.
The series of declarations and conventions adopted by
the United Nations have [sic] won the support and
respect of many countries. . . . However, the evolution
of the situation in regard to human rights is
circumscribed by the historical, social, economic, and
cultural conditions of various nations, and involves a
process of historical development.\8\
The White Paper framed the issue in new, evolutionary
terms. Rather than rejecting civil and political rights as part
of a transitory stage of bourgeois capitalism, the authors
argued that human rights are more appropriate to developed than
to developing
nations. This idea may be short lived: as China assumes an
increasingly powerful role on the world stage, nationalist
pride may discourage reliance on the assertion that China's
``backward'' economic and cultural status allows the government
to contravene international human rights norms and standards.
A more troublesome aspect of the White Paper's viewpoint is
the relativist claim that the idea of human rights is an aspect
of Western culture and not a universal standard. Along these
lines, some commentators outside of Asia have suggested
recently that a distinctively ``Chinese'' discourse on human
rights exists and deserves deference. Moreover, they argue that
it may suit China better than the international standards laid
out in the Universal Declaration on Human Rights. In the 1990s,
Chinese officials employed this argument as an all-purpose tool
to deflect international criticism of their country's human
rights practices. The United Nations Charter and the Universal
Declaration on Human Rights first expressed the international
consensus on basic human rights in the 1940s. The UN
representative of the Republic of China, P.C. Chang, served as
vice chairman of the Human Rights Commission during the
drafting of the Universal Declaration. His belief in the
importance of the Declaration helped make it possible for the
General Assembly to adopt it unanimously in December 1948.
The unanimous, multinational genesis of the Universal
Declaration, together with numerous contemporary statements,
demonstrates the UN General Assembly's acceptance of a
universally agreed-on set of minimum human rights standards.
The General Assembly did not codify the substantive norms of
any particular state or region in unanimously adopting the
Universal Declaration. Instead, it reflected international
consensus on the minimum standards by which all states should
abide, without limiting any state from doing better than these
standards within its own distinctive political and economic
system.
Until the Chinese people acquire the open, transparent, and
democratic means to influence their government's position on
human rights, no one should assume that they do not wish to
enjoy all the rights expressed in the Universal Declaration, or
other international covenants, conventions and agreements.
Insights into the Thinking of China's New Leaders
China's political structure was modeled on the centralized
and unitary party-state that Vladimir Lenin advocated and
implemented in the Soviet Union. As a natural result of this
authoritarian structure, China's reforms since 1979 have been
top-down in concept and implementation, beginning with a bold
economic program of ``reform and opening up to the outside
world'' enunciated by Deng Xiaoping. Although the relationship
between market reforms and democratic development is neither
clear nor certain, a similar authoritarian structure was the
starting point for market-oriented economic changes, and then
democratic reforms, in Taiwan and South Korea. While China's
future path is impossible to predict, the openness of China's
leadership to political reforms that could weaken the absolute
control of the Communist Party has been a matter of debate,
both in China and the West.
Political leaders, scholars, and analysts outside China
know relatively little about the new generation of men (and a
few women) who have entered the top Chinese leadership ranks
since the 16th Communist Party Congress, held in November 2002.
Some resources exist that may provide insights into their
interests and factional affiliations. Disidai (The Fourth
Generation), a book recently published outside China by a
former Chinese government insider, Zhang Liang, writing under
the pseudonym Zong Hairen, offers a view of the histories,
alliances, and political views of China's new leaders.\9\
The book, while probably as much a political tract as a
factual account, nonetheless gives the reader a sense of the
issues of concern in intra-Party politics. It includes what
purport to be actual dossiers compiled by the Communist Party's
Organization Department to evaluate candidates for membership
in the Standing Committee of the Politburo, the nine-person
group that rules China. Although human rights issues do not
figure prominently in Zhang's analysis,\10\ the dossiers do
suggest attitudes toward government and governance that imply a
positive stance on citizens' rights. For example, the book
quotes China's new premier Wen Jiabao as saying, ``When doing
anything in the countryside, we must respect the wishes of the
peasants, respect their autonomy in production, and absolutely
not use force and orders against them.'' \11\ The generality of
statements like this does not necessarily indicate what Premier
Wen thinks about human rights and the rule of law, but such
statements do reflect an appreciation for the rights and
dignity of rural citizens, a concept not associated with
China's leaders in the recent past.
The views of President Hu Jintao on issues relating to
human rights protections and the rule of law are the least
evident in either public documents or the material included in
Disidai. However, as noted in Section V(e) of this report,
President Hu's focus on the Chinese Constitution has revived
hopes in China's law reform community that new constitutional
mechanisms may be developed to protect individual rights and
restrain the government's arbitrary exercise of power, despite
the possibility that Hu may simply see these reforms as a means
to enhance the power and legitimacy of the Communist Party. In
addition, press accounts of his short tenure in office have
included hints of his sympathies. For example, the South China
Morning Post reported in April that Hu had intervened
personally to limit punishment of the liberal paper that
published an article by progressive Party elder, Li Rui, urging
sweeping democratic reform.
Excerpts of speeches included in the dossiers summarized in
Zhang Liang's book portray other new leaders as having spoken
in favor of policies helpful to the development of the rule of
law, including Wu Guanzheng, a Communist Youth League ally of
Hu Jintao who heads the Party's Central Discipline and
Inspection Commission and sits on the Politburo's nine-member
Standing Committee; Wu Yi, now both Politburo member and
Minister of Health; and Li Changchun, a member of the Politburo
Standing Committee.
However, while some in China's new leadership group seem to
favor progress toward minimum international human rights norms
and standards and the rule of law in China, these potentially
more progressive voices are unlikely to dominate the repressive
policy preferences of others in the Party and government. As
one U.S. scholar observes, the new Politburo represents what
must be a deliberate balance of power between ``hardliners'' and
``progressives.''
Former Chinese official and businessman Fang Jue, famous
for his daring 1998 challenge to the Party entitled ``China
Needs a New Transformation--The Platform of the Democratic
Faction,'' agrees that the new leadership is a careful balance
between opposing groups. Fang was one of a group of mid-level
officials and former officials advocating political reform in
China at the time of the 15th Party Congress in 1998. He was
first jailed at that time for 4 years, on what many say were
trumped up charges. Released in 2002, he was re-arrested
shortly before the 16th Party Congress in November 2002, held
for 82 days, then expelled from China in January 2003. He has
recently written a sophisticated analysis of the political
coloration of the new leaders and the relationships among
them.\12\ His breakdown of the new Politburo members finds:
2 Progressives: Hu Jintao and Wen Jiabao
2 Moderates: Li Changchun and Wu Guanzhang
5 Conservatives: Zeng Qinghong, Wu Bangguo,
Jia Qinglin, Huang Ju, and Luo Gan
Fang believes that this configuration will prevent both
progressives and conservatives from taking control. Fang notes
that, apart from the Politburo, conservatives dominate the
second tier of positions in the Party, making it quite unlikely
that the more progressively-oriented Hu and Wen will be able to
push through significant political reform.
Human and Institutional Resources for Change
Promising resources for change in China include both people
and new institutions. Academics in China today are particularly
influential because of the strong traditional tie between
teacher and student, which often lasts a lifetime. The respect
and admiration of former students may explain tolerance for the
views of some senior scholars. For instance, despite his
progressive views on topics ranging from federalism to
constitutional review, Professor Jiang Ping of the University
of Politics and Law remains active in legal academe and speaks
frequently at conferences on law reform issues. In the volatile
world of inner-Party politics, powerful bonds grow up between
older and younger cadres, with the result that senior retired
officials may express critical views with some impunity. Li
Rui, former secretary of Mao Zedong, speaking at the November
2002 Party Congress, suggested far-reaching political reforms,
including the establishment of a constitutional court and an
end to Party interference in the judiciary. But when his ideas
were subsequently published in a Chinese newspaper, the Party
expressed its displeasure by closing the paper. Li Rui remained
unrepentant: ``I am 86 years old. I don't care what people
think of me.'' \13\
The development of new institutions and mechanisms
permitting comparatively free-ranging intellectual discussion
by a privileged group [see Section III(d) below] is among the
greatest changes in China since the mid-1970s. From prominent
universities in large urban areas to small local teachers
colleges, academic centers have become relatively safe places
for the expression and discussion of new ideas that were once
considered radical or dangerous. Some schools now incorporate
elements of constitutionalism and comparative law into their
curricula.\14\
In addition to their traditional degree programs, many of
these institutions have established research centers where
scholars focus on and debate issues such as constitutional law,
criminal jurisprudence, the legislative process, justice for
the victims of environmental pollution, and public health. Law
schools in China are also involved in this trend. An increasing
number of law schools have established clinical legal education
programs, and some support legal aid initiatives for the poor.
In addition to academic institutions, policy institutes
(``think tanks'') have proliferated in China since the 1970s,
with analysts and scholars studying and debating the issues and
options in such areas as foreign policy, national security and
military affairs, and social and economic development.
Government agencies still control and fund these institutions
to varying degrees, but the analysts working in them seem to
operate under relatively few constraints. The Central Party
School, which serves as the Communist Party's own ``think
tank,'' employs a permanent long-term research staff, many
members of which also teach in the Party's mid-career
development program for cadres destined for senior positions.
As discussed in Section V(a) below, China's nongovernmental
sector is also growing, although at a modest rate, with
continued requirements for government sponsorship, and without the
advantages of clear legal and tax rules. While state regulation
of ``civil society'' in China is still evolving, Commission staff
members have observed a profusion of grassroots efforts to build
service and advocacy groups at many levels. As Tiananmen Square
leader Wang Dan has observed, real change may come first from
this sector, propelled by citizen demand rather than initiative
from above.
Worsening Corruption in the Context of the CCP Monopoly on Power
Official corruption is likely to obstruct the efforts of
reformers to realize the constitutional promise to ``rule China
according to law.'' Although the Communist Party claims to
recognize the threat to government legitimacy posed by
corruption, the Party has yet to submit itself and all its
members to equal justice under the same rules that apply to
other Chinese citizens.\15\
Concern about official corruption continues to be strong
today. Communist Party leaders recall that endemic corruption
in the Kuomintang regime in the late 1940s fueled popular
discontent and helped bring the Communist Party to power. The
angry messages that flood Chinese Internet bulletin boards when
the news media reports a corruption scandal reflects Chinese
citizens' own perceptions of their government's inability or
unwillingness to cope with domestic corruption.\16\ Popular
support for anticorruption campaigns is high, and the Chinese
press routinely publishes accounts of successful campaigns and
new initiatives against corruption.
The size of the problem, and the Chinese government's
strategies for fighting it, can also be seen in the statistics
published in the work reports of Party and state entities
assigned to combat corruption. In March 2003, then-Procurator-
General Han Zhubin\17\ reported to the National People's
Congress (NPC) that the procuratorate (China's prosecutorial
agency) had investigated 207,103 cases involving embezzlement,
bribery, and other crimes involving government officials.\18\
The procuratorate also prosecuted 84,395 employees of state-
owned enterprises for committing economic crimes and 554
government employees who had formed corrupt liaisons with
criminal gangs.\19\ At the end of March 2003, Chief Justice
Xiao Yang boasted that the people's courts closed 99,306 cases
of embezzlement and bribery and punished 83,308 corrupt
officials in the same period.\20\ In April, Minister of
Supervision Li Zhilun noted that between 1997 and 2001, 860,000
corruption cases were filed against Communist Party members,
resulting in 846,000 Party disciplinary actions and more than
137,000 Party expulsions.\21\
China's new political leaders have also addressed in public
the problem of corruption. President Hu, for example, urged in
early 2003 that former President Jiang Zemin's theory of the
``Three Represents'' should be used as a guide to strike hard
against corruption.\22\ And Party officials introduced measures
in early 2003
proposing new rules that prohibit cadres from intervening in
bids for construction projects, transferring land-use rights
for commercial purposes, or profiting from real estate business
activities.\23\ Whether these measures are adopted and enforced
remains to be seen, but the debate over their necessity
illustrates the seriousness with which the Party takes the
problems caused by official corruption.
To address new kinds of corrupt behavior resulting from the
market-oriented economic reforms of the 1990s, the NPC added a
substantial group of ``economic and financial crimes'' to the
revised Criminal Law in 1997. These offenses include
embezzlement,\24\ misappropriation of public funds,\25\
extortion,\26\ bribery,\27\ illegal gains,\28\ smuggling,\29\
and obstruction of tax collection and enforcement.\30\ The
investigation and enforcement of this new list of ``white
collar crimes'' are duties of the Ministry of Supervision, the
Supreme People's Procuratorate and the Ministry of Public
Security.
The extensive apparatus designed to combat corruption
suffers, however, from a fatal flaw: the lack of an institution
with the distinct political authority and legal jurisdiction to
police the Party itself. While the structure laid out in the
Party constitution seems to set up a system of local and
provincial party congresses electing the members of the
congresses higher up, in fact control of those in power at each
level is in the hands of the next higher unit.\31\ The whole
structure is operated according to the principle of
``democratic centralism,'' \32\ so that power and supervision
flow from the top down rather than from the bottom up. As in
the Soviet Union, this structure rules out effective outside
supervision of Party activities.
For the Communist Party, the most important instrument for
controlling corruption lies outside the criminal justice
system. The Central Discipline and Inspection Commission
(CDIC), which serves the Party's Central Committee, was created
to check unacceptable behavior and breaches of ``discipline''
by Party members, including graft and corruption. The CDIC's
Work Report for 2002 urges that ``the Party should exercise
self-discipline and be strict with its members,'' \33\ which
reflects quite a different tone from that of the criminal anti-
corruption provisions.
Party leaders seem to put great faith in the CDIC as the
best method of overcoming corruption and restoring the faith of
the Chinese people in the Party's rectitude. The CDIC's very
existence, however, has resulted in an entrenched system of
unequal justice. Government agencies may not charge Party
members with criminal violations without obtaining prior
approval from the relevant Party committee. Even if the CDIC or
its local branch seeks to refer a case to the procuratorate for
criminal prosecution, the local committee must approve. As a
result, corruption laws are applied differently to Party cadres
and other defendants. The case of Tao Siju, former Minister of
Public Security, who was implicated in a high-profile smuggling
case in Xiamen, provides an example of a case in which a high-
level Party leader was treated with lenience while his co-
conspirators and underlings received the draconian penalties
prescribed in the 1997 revision of the Criminal Law.\34\
This case, and many others like it, suggest that the
frenetic succession of state and Party anti-corruption
campaigns cannot solve the problem of corruption in China. The
Party's monopoly on power, its reluctance to open itself up to
the scrutiny of a critical media, its inclination to try to
hide high-level corruption that might undermine popular faith
in the Party and thus social stability, and its refusal to
submit to equal legal liability for crimes of corruption have
created an environment in which corruption can thrive. These
conditions have allowed the CDIC itself, designed as a tool to
purify the party, to be used as a political weapon in intra-
Party intrigues.
III. Monitoring Compliance With Human Rights
The Commission's Executive Branch members have participated
in and supported the work of the Commission, including the
preparation of this report. However, the views and recommen-
dations expressed in the report do not necessarily reflect the
views of individual Executive Branch members or the Administration.
III(a) Rights of Criminal Suspects and Defendants
FINDINGS
The Chinese government continues to detain and
imprison Chinese citizens for peacefully exercising
their rights to freedom of expression, association, and
belief in violation of China's own Constitution and
laws, as well as international human rights norms and
standards.
Chinese prosecutors frequently charge persons
engaged in such nonviolent conduct with crimes of
endangering state security, including subversion or
incitement to subvert state power, and often invoke
``protection of state secrets'' to deny defendants an
open trial and access to legal counsel.
Chinese authorities routinely ignore Chinese
domestic law, or exploit loopholes in it, to detain
suspects and defendants both before and after trial for
periods greater than Chinese law and international
human rights norms and standards permit.
Spirited public discussion is taking place in
China on a wide range of criminal justice issues,
including such topics as the death penalty and whether
China should adopt a bail system.
China's Strike-Hard Anti-Crime Campaign
Detailed information about the treatment of suspects and
defendants at all stages of China's opaque criminal justice
process (and administrative detention process) is limited.
Nevertheless, some sense of the size of China's criminal
justice system may be gleaned from government announcements
about periodic anti-crime campaigns and government-published
statistics.
China's current ``strike hard'' campaign against crime,
launched in April 2001, continued unabated over the past year.
``Strike hard'' campaigns have been associated with harsh anti-
crime tactics, violations of criminal procedure, and wrongful
convictions.\35\ In June 2003, President Hu Jintao praised the
``remarkable successes'' achieved in the campaign and stressed
the importance of continued vigilance in cracking down on
crime. From 1998 through the end of 2002, Chinese courts tried
2.83 million criminal cases, a 16 percent increase over the
previous 5-year period, and sentenced 3.22 million defendants,
an 18 percent increase. More than 800,000 defendants, or
approximately 25 percent of the total, received penalties
ranging from at least 5 years in prison to the death
sentence.\36\ According to official Chinese statistics, the
conviction rate during this period was approximately 99
percent.\37\
In 2003, China's criminal code included 65 capital
offenses, including financial crimes such as counterfeiting
currency, embezzlement, and corruption.\38\ The Chinese
government does not disclose the number of death sentences
carried out each year because it considers the number to be a
state secret. Outside estimates of the number of executions in
China range from 4,000 to more than 15,000.\39\ Convicted
criminals are often executed after summary trials with no
opportunity for appeal.
Political Crimes
Although the Chinese Constitution recognizes the rights to
freedom of assembly, expression, and association,\40\ the
Chinese government continues to routinely detain and arrest
individuals for engaging in the nonviolent expression of these
rights. Chinese law enforcement and security authorities often
charge these individuals with crimes of ``endangering state
security,'' such as ``subversion'' or ``incitement to
subversion,'' or in the case of Tibetans and Uighurs,
``inciting splittism.'' As detailed below, Chinese government
authorities use these vague crimes to detain and charge
individuals whose conduct they find threatening.\41\ Chinese
citizens who lead peaceful labor protests, form political
parties, or post articles on the Internet that relate to
political reform have been convicted of subversion.
According to Han Zhubin, the former head of the Supreme
People's Procuratorate, the procuratorate has made a priority
of cracking down on crimes threatening state security in recent
years. From 1998 through the end of 2002, procurators approved
the arrest of 3,402 criminal suspects and prosecuted 3,550
individuals on charges of crimes of threatening state
security.\42\ These statistics do not include political
dissidents in administrative detention or psychiatric
facilities and also exclude arrests and prosecutions for
contravening laws and regulations against ``heretical sects''
(e.g., Falun Gong).\43\ In 2001 and 2002, intermediate-level
courts tried more than 1,600 people for endangering state
security.\44\ According to John Kamm of the Dui Hua Foundation,
a U.S. NGO, ``the great majority of cases of endangering state
security for which we have information involve non-violent
expression and association.'' \45\
In the most notable subversion cases over the past 12
months:
A court in Liaoyang Province convicted Yao
Fuxin and Xiao Yunliang of subversion in May 2003 for
leading the Liaoyang labor protests in 2002, and
sentenced them to 7 and 4 years of imprisonment,
respectively. The two men were detained for
approximately 10 months before trial. The Liaoning
Higher People's Court rejected their appeals in mid-
2003.
A court in Chengdu, Sichuan Province,
convicted Huang Qi, an Internet entrepreneur and
activist, of incitement to subvert state power in May
2003 for his alleged involvement with politically
sensitive postings on a Web site that he had developed,
www.6-4tianwang.com (now defunct). Huang was sentenced
to 5 years imprisonment, and his appeal is pending.
Four members of a discussion group--Xu Wei,
Jin Haike, Yang Zili, and Zhang Honghai--were detained
in March 2001 and tried in September 2001 for
subversion. They posted articles on the Internet
expressing concern over current events and social
conditions. In May 2003, a court found them guilty,
sentencing Xu and Jin to 10 years in prison, and Yang
and Zhang to 8 years each.
A court found lawyer Zhao Changqing guilty of
incitement to subvert state power and sentenced him to
5 years imprisonment in a secret trial in July
2003.\46\ Zhao had been detained since November 2002
after he drafted an open letter to the 16th Party
Congress that was signed by 192 activists from 17
provinces. The letter made several political demands,
including the release of all political prisoners and a
reassessment of the 1989 democracy movement. Public
security officials had taken at least six other
signatories of the letter into custody by the end of
2002.\47\ Human Rights in China, a U.S. NGO, has
submitted a petition on Zhao's behalf to the UN Working
Group on Arbitrary Detention.
Authorities detained Liu Di, a student and
Internet activist, in November 2002. In December, she
was arrested under suspicion of incitement to subvert
state power. Liu was accused of posting essays on the
Internet criticizing government Internet restrictions
and expressing sympathy for fellow Internet activist
Huang Qi. Human Rights in China also has submitted a
petition on her behalf to the UN Working Group on
Arbitrary Detention.
Prosecutors also often charge political activists and
members of religious and spiritual groups such as Falun Gong
with nonpolitical crimes. Prosecutors have relied on charges of
``disturbing the public order'' to arrest and try thousands of
adherents to unauthorized religions or spiritual movements.
Fang Jue, a former official and prominent advocate of political
reform, spent 4 years in prison for allegedly committing
economic crimes. Labor leaders are often charged with
``disturbing the public order'' or ``organizing an illegal
procession.'' \48\
The Chinese government has also taken advantage of the
global war on terrorism to persecute both Uighurs in
northwestern China and political dissidents. In February 2003,
Wang Bingzhang, a U.S. permanent resident and veteran pro-
democracy activist, was convicted of ``leading a terrorism
organization'' and ``spying'' and sentenced to life
imprisonment. The Guangdong Higher People's Court rejected his
appeal. In June 2003, the Chinese government accused two
overseas dissidents of ``violent terrorist activities''
relating to an alleged plot to drop thousands of pro-democracy
leaflets over Tiananmen Square and the Beijing airport via
remote-controlled balloons.
Courts rarely acquit defendants charged with political
crimes (or those charged with nonpolitical crimes to punish
political activities). As John Kamm notes, ``prosecutions in
[endangering state security] cases almost always result in
convictions, and parole and sentence reduction for prisoners
convicted of endangering state security are rarely handed out.'' \49\
The number of individuals serving time in Chinese prisons for
political crimes is higher today than at any time since the end
of 1992.\50\
Moreover, prospects are poor for criminal defendants who
appeal their convictions. Lower courts often seek guidance from
higher courts regarding legal issues in cases before them.\51\
Consequently, many judgments made in the lower courts reflect
the views of the appellate judges, making success at the
appellate level much less likely. Defendants in politically
sensitive cases have little hope of a favorable result on
appeal.
Arbitrary Detention in the Criminal Process
According to official Chinese statistics on cases from 1998
through 2002, law enforcement authorities detained 308,182
people for periods longer than permitted under Chinese law.\52\
In contravention of international human rights norms and
standards, Chinese law does not give detained individuals the
right to be brought promptly before a judge or to challenge the
lawfulness of their detention and arrest.\53\ Recognizing that
unlawful custodial detention has generated significant public
anger in China, the Supreme People's Procuratorate recently
established two hotlines and an e-mail address for public complaints
about such unlawful detentions.\54\ In addition, the National People's
Congress (NPC) is reportedly reviewing proposals to strengthen
laws designed to prevent extended detention.\55\
Pre-trial detention
Law enforcement authorities often hold criminal suspects
and defendants in pre-trial detention for periods exceeding
those permitted by both Chinese law and international human
rights norms and standards. The International Covenant on Civil
and Political Rights (ICCPR) provides that ``it shall not be
the general rule that persons awaiting trial shall be detained
in custody,'' yet pre-trial detention in China is the norm.
Judges rarely grant petitions from defense lawyers seeking to
``obtain a guarantor pending trial'' (qubao houshen), a type of
non-custodial detention.\56\ Detainees routinely languish in
detention centers for as long as a year, and sometimes longer,
before a court formally charges and tries them.
The case of pro-democracy activist Yang Jianli, a U.S.
permanent resident, provides an egregious recent example of
unlawful pre-trial detention. In April 2002, Yang traveled to
China using a borrowed passport and false identity documents to
interview and lend support to striking workers in northeast
China. Public security officials took Yang into custody and
held him incommunicado for more than 14 months. Yang was
indicted for illegal entry into China and espionage in July
2003. Chinese authorities have refused to permit family members
to visit or correspond with him. Moreover, Chinese officials
refused his lawyer's repeated requests to meet with him until
July 2003, more than a year after his detention. In June 2003,
the UN Working Group on Arbitrary Detention concluded that the
Chinese government's detention of Yang was arbitrary and
violated international law.\57\ Yang was tried in secret on
August 4. No verdict was issued after the 3-hour trial. Yang's
brother and sister traveled to Beijing for the trial but were
barred from the court.\58\
Post-trial detention
Authorities in China frequently detain defendants for long
periods after trial while awaiting judgment, particularly in
``sensitive cases.'' The PRC Criminal Procedure Law (CPL)
provides that courts must pronounce the judgment no later than
2\1/2\ months after accepting a case of public prosecution.\59\
Internet activist Huang Qi spent nearly 2 years in detention
awaiting the court's verdict in his case. Tried for subversion
in September 2001, Internet activists Xu Wei, Yang Zili, Jin
Haike, and Zhang Honghai
remained in custody for more than 18 months awaiting their
verdicts.\60\ Authorities in Liaoyang Province held labor
protest leaders Yao Fuxin and Xiao Yunliang after their trial
in contravention of the CPL. They were tried in mid-January
2003, but did not learn of their verdict until early May 2003.
The Chinese government is currently holding criminal defense
lawyer Zhang Jianzhong in violation of the CPL. Seven months
after Zhang's trial in February 2003, the Beijing Intermediate
People's Court has yet to render a verdict in the case.
Disappearances
Public security and law enforcement authorities
periodically
detain dissidents before significant public anniversaries or
meetings, such as the 16th Party Congress held in November
2002. For example, the sister of democracy activist Fang Jue
reported him missing in early November 2002, just before the
Party Congress began. Authorities held Fang incommunicado,
without charging him with a crime, until they expelled him from
China in January 2003. Fang believes that he is the first
Chinese citizen arrested and expelled from China without a
trial or any other legal process.\61\
Democracy activist Wang Bingzhang was missing for 6 months
before Chinese government authorities admitted in December 2002
that they had arrested him on terrorism and spying charges.
Public security authorities apparently detained Wang and two
other expatriate dissidents who were traveling with him for 6
months but denied any knowledge of their whereabouts. After being
released, the two dissidents traveling with Wang claimed that
Chinese agents abducted the three in Vietnam in June 2002 and
forcibly took them into China, where they were held
incommunicado. Wang subsequently was convicted of terrorism and
espionage and is currently serving a life sentence. In July
2003, the UN Working Group on Arbitrary Detention declared that
Wang's arrest and imprisonment violated international law.
Administrative Detention
Public security officials have the power to send
individuals to ``re-education through labor'' (laojiao) for
terms of up to 3 years, with the possibility of a 1-year
extension, subject to only minimal judicial checks that are
rarely invoked in practice.\62\ Police also have the power to
commit drug users to detoxification centers and re-education
centers.\63\
Although routine, these forms of detention, which are
carried out pursuant to administrative regulations, violate
China's Constitution and law, as well as international human
rights norms and standards that require prompt judicial review
for detainees.\64\ Such unfettered police power can have
disastrous consequences for others besides the detainee. In
mid-2003, a 3-year-old girl named Li Siyi died alone at home of
thirst or starvation when public security officials sent her
mother--her only caregiver--to a detoxification center to serve
a 3-month sentence. The mother pleaded with the authorities to
help find someone to care for her child, but her pleas went
unheeded.\65\
Law enforcement authorities also have the power to commit
individuals to psychiatric facilities called ankang (``Peace
and Health''). Although ankang are intended for the custody
and treatment of severely mentally ill offenders, they have
also been used to detain individuals who are mentally sound,
but have somehow run afoul of persons in power. The courts have
no visible role in the process of committing offenders to
ankang.\66\ One of the three main types of individuals whom
police commit to ankang are ``political maniacs'' (zhengzhi
fengzi), a category that includes those who ``shout reactionary
slogans, write reactionary banners and reactionary letters,
make anti-government speeches in public, and express opinions
on important domestic and international affairs.'' \67\ This
category can easily be applied to mentally stable individuals
who simply express dissenting political views. Veteran human
rights activist Wang Wanxing remains detained in an ankang
center in Beijing for attempting in June 1992 to unfurl a
banner in Tiananmen Square to commemorate the third anniversary
of the 1989 Tiananmen crackdown.\68\ In 2001, the UN Working
Group on Arbitrary Detention concluded that the Chinese
government had detained Wang arbitrarily after he peacefully
expressed his right to freedom of opinion and expression.\69\
Authorities have reportedly detained hundreds of Falun Gong
practitioners, whom they have found to be suffering from ``evil
cult-induced mental disorders,'' in mental asylums and ankang
facilities throughout the country.\70\ According to some
reports, thousands of Falun Gong practitioners have also been
sentenced to re-education through labor.\71\
Until June 2003, public security officials also had the
power to detain anyone lacking an identification card,
temporary residence permit, or work permit under a 1982
regulation entitled ``Measures for the Custody and Repatriation
of Vagrant Beggars in Cities.'' \72\ Exiled activist Tong Yi
testified before a Commission roundtable in June 2003 that
official mistreatment of detainees was rampant in the more than
800 custody and repatriation centers in China.\73\ Controversy
over the regulation boiled over in the spring of 2003, after
the Shenzhen newspaper Southern Metropolitan Daily revealed
that a university graduate student named Sun Zhigang had been
mistakenly detained under the regulations and beaten to death
while in custody.\74\ In response to public pressure, which
included legal petitions [see Section V(e)], the State Council
repealed the custody and repatriation regulation and issued a
new regulation entitled ``Measures on the Administration of Aid
to Indigent Vagrants and Beggars in Cities.'' \75\ The new
regulation authorizes the Ministry of Civil Affairs, rather
than the Ministry of Public Security, to manage shelters that
are intended to provide temporary assistance to indigent
vagrants and beggars. The regulation outlaws forced detention
and labor, extortion, and other abuses, and requires local
governments to fund the shelters.\76\ While many outside China
welcome this positive reform, some have noted that the
government designed the original 1982 vagrancy regulation as a
``welfare'' measure. The success of the new measure will depend
on the effectiveness and thoroughness of its implementation.
Access to Counsel
Only about one in three criminal defendants in China has
legal representation.\77\ The Chinese government often deprives
defendants in political cases of their legal right to counsel.
The Yang Jianli case illustrates the lengths the Chinese
authorities often will go to deny a criminal suspect the right
to counsel. In violation of Chinese law, public security
authorities never issued a written notification of detention to
Yang's family. Because defense lawyers often require a
detention notice before they will accept a case, this official
misconduct prevented Yang's family from hiring counsel for him
until February 2003.\78\ Law enforcement authorities repeatedly
denied the requests of Yang's lawyer to see his client on the
grounds that the case involved state secrets.\79\ Under the
CPL, if a case involves state secrets, a lawyer must obtain
approval from the investigating authorities before meeting with
his or her client.\80\ Thus, invoking the state secrets
provision provides officials with a convenient method to deny
suspects and defendants access to legal counsel without
independent review by a judge. In the case of Yang Jianli, the
authorities acquiesced to an initial meeting between the lawyer
and Yang just 1 month before the trial.
Chinese criminal defense attorneys may face intimidation,
harassment, or prosecution if they offend procurators or other
government authorities while vigorously defending a client in a
sensitive case.\81\ More than 100 lawyers have been prosecuted
since 1997 under Article 306 of the criminal law for
``perjury'' or ``evidence fabrication by lawyers.'' \82\ Zhang
Jianzhong, one of the best-known criminal defense lawyers in
China, was detained on Article 306 charges, but prosecuted
under Article 307, a general perjury and evidence fabrication
provision.\83\ This intimidation has had serious consequences
for the criminal justice system and the rights of criminal
defendants. As the Commission noted in a May 2003 topic paper,
the percentage of criminal cases in which defendants have legal
representation has declined in recent years, in part because
lawyers consider criminal defense to be high-risk work.
Lawyers specializing in criminal defense cases are not the
only advocates that the public security authorities persecute.
Any lawyer who takes up a cause deemed ``sensitive'' runs the
risk of official harassment and sometimes prosecution. In
August 2003, Shanghai authorities formally tried Zheng Enchong,
a lawyer who had been assisting displaced families affected by
redevelopment projects, on charges of ``stealing state
secrets.'' \84\ The verdict in Zheng's case had not been
announced as of late September 2003. In July 2003, the
International Commission of Jurists, an international lawyers
group, wrote the Chinese government to condemn Zheng's arrest
and detention as well as a 2001 government decision to revoke
his law license.\85\
Torture and Abuse in Custody
Even though Chinese law prohibits the use of torture to
obtain confessions, the use of electric shock, beatings, sleep
deprivation, mental abuse, and other forms of torture remains
widespread in China, chiefly during the investigative stage of
the criminal process.\86\ Senior Chinese officials recognize
that torture and coerced confessions corrupt the criminal
justice system and undermine legitimate law enforcement goals,
but the government has taken few practical steps to address
this chronic problem. Former detainees report numerous
instances of torture and other forms of abuse in detention
centers and prisons.\87\ Internet activist Xu Wei, who was
sentenced in May 2003 to 10 years in prison, complained to the
court that he had been beaten in custody and tortured with
electric shock to his genitals, causing long-term numbness in
his lower body.\88\ Longstanding allegations of rampant abuse
and ill-treatment in custody and repatriation centers were
confirmed in 2003 after the beating death of Sun Zhigang in a
custody and repatriation center in Guangzhou.\89\
Since the official repression of the Falun Gong movement
began in 1999, Falun Gong organizations outside China have
reported several hundred deaths of practitioners in Chinese
custody as a result of torture, abuse and neglect.\90\ Zhao
Ming, a Falun Gong practitioner, reported that he was punched,
beaten with electric batons, and deprived of sleep while being
held in a re-education through labor camp in Beijing from June
2000 to March 2002.\91\ In March 2003, a court in Yangzhou
city, Jiangsu Province, sentenced Charles Li, a U.S. citizen
and Falun Gong practitioner, to 3 years in prison for
attempting to sabotage state-controlled television broadcast
facilities. Mr. Li admitted the basic facts as alleged by the
prosecutor, but he denied that he had intended to do harm or
commit sabotage. Credible reports suggest that prison
authorities have subjected Mr. Li to both mental and physical
abuse due to his Falun Gong beliefs.
Since the 1980s, numerous credible foreign press accounts
have detailed the practice of state-sanctioned removal and sale
of the internal organs of executed prisoners. For example, an
article in the Observer in 2000 described how hundreds of
foreign patients with kidney diseases traveled to dilapidated
hospitals in Chongqing in hopes of a kidney transplant.\92\
Sources quoted in the article said they were told explicitly
that the kidneys would come from executed prisoners. A June
2000 article in the International Herald Tribune reported that
the travel of patients from one Southeast Asian country to
China resulted from a 1998 visit of doctors from a military
hospital in Chongqing. The doctors spoke to potential
transplant recipients about prices and procedures for going to
China for a transplant.\93\
Reports on this topic are unusual in the Chinese press, but
one expose, ``Where Did My Brother's Body Go,'' appeared in a
small paper in Jiangxi Province in 2001, and subsequently also
appeared on the Web site of the People's Daily.\94\ The article
described a woman's plan to sue the government for selling her
brother's organs without his permission. The brother had been
executed for criminal offenses. Yao Xiaohong, the author of the
article, was subsequently fired for violating ``editorial
rules.'' \95\ Many wondered how this article found its way onto
the official paper's Web site, but an unnamed Chinese
journalist explained to a Western journalist that ``there are
people who are against this practice. . . . Sometimes in China,
things sneak through the cracks.'' \96\ In August 2003, the
Standing Committee of the Shenzhen People's Congress passed
China's first regulations on organ transplants, but the new
regulations do not specifically govern transplants of organs
from executed prisoners.\97\
Public Trials
Although the Criminal Procedure Law requires that trials be
held in public, courts frequently ignore this requirement,
particularly in politically sensitive cases.\98\ The CPL
permits some exceptions, notably in cases involving state
secrets. Wang Bingzhang's trial was conducted in secret under
the state secrets exception. U.S. consular officials requested
permission to attend Wang's appeal hearing, but the court
denied the request. The courts also tried Tibetans Tenzin Deleg
and Lobsang Dondrub in secret, and restricted attendance at the
trials of both Zhang Jianzhong and Zheng Enchong.\99\ Yang
Jianli's trial was held behind closed doors because it also
purportedly involved state secrets. The Chinese government
denied a request from the U.S. Embassy to observe the
trial.\100\
Authorities put Yang Bin, a Dutch orchid tycoon born in
China, on trial in Shenyang on fraud and bribery charges in
early 2003. The court granted a handful of his relatives and
employees permission to attend the hearing, but court officials
ordered court employees to stay away.\101\ The authorities
permitted a Dutch consular official to attend the trial,
apparently pursuant to a bilateral consular convention
permitting consular officials to attend trials involving Dutch
citizens.\102\ Chinese courts permitted U.S. consular officials
to attend the trial and appeal hearing in a recent case
involving Charles Li. The courts likely cooperated because the
U.S.-PRC Consular Convention requires both countries to permit
consular officers to attend trials or other legal proceedings
involving defendants who are nationals of the other
country.\103\
Public Discussion and Debate About Criminal Justice Issues
Spirited debates about some criminal justice issues are
taking place in China today. In December 2002, for example, the
Institute of Law at the Chinese Academy of Social Sciences, the
Danish Institute of Human Rights, and Xiangtan University
jointly sponsored a conference on the death penalty at Xiangtan
University in Hunan Province. Chinese scholars participating in
the conference presented a range of positions and arguments,
from limiting the death penalty to outright abolition.\104\
According to a report of an interview with Tian Wenchang, among
China's most well-known criminal defense lawyers, arguments in
favor of reducing the number of executions have also been heard
in government circles.\105\ The newspaper Southern Weekend
published an in-depth report about the conference, thereby
moving the debate about capital punishment from academic
circles into the public domain. The issue was reportedly hotly
debated in Internet chat rooms.\106\
In March 2003, the Great Britain-China Center, the Renmin
University Law School Criminal Procedure Center, and the
Dongcheng District Procuratorate of Beijing jointly sponsored a
conference on bail reform at which more than 100 participants
discussed the similarities and differences between the British
system of bail and China's practice of ``obtaining a guarantor
pending trial'' (qubao houshen). Participants included not only
prominent criminal procedure scholars and well-known criminal
defense lawyers but also officials from the Supreme People's
Procuratorate and lower-level procuratorates, the Supreme
People's Court, the Legislative Affairs Commission of the NPC
Standing Committee, and the State Council's Office of
Legislative Affairs.\107\ According to press accounts, the
conference began by examining the problem of illegal prolonged
detention as well as the high rate of pre-trial detention in
China.\108\
In September 2003, the American Bar Association Asia Law
Initiative, in cooperation with the All China Lawyers
Association, sponsored a Beijing conference on the role of
criminal defense lawyers. The conference included lawyers,
academic experts, judges, and law enforcement officials from
both the United States and China, and addressed a range of
topics related to criminal defense.
III(b) Protection of Internationally-Recognized Labor Rights
FINDINGS
China's poor record in protecting the
internationally-recognized rights of its own workers
has not changed significantly in the past year.
Workplace health and safety is poor in many
Chinese workplaces. Fatalities among mine workers are
especially high.
Although China now has better laws to improve health
and safety standards, government authorities lack the
will or capacity to enforce the law.
Restrictions on the ability of Chinese workers
to form and join independent trade unions limit
workers' ability to assert not only their
internationally recognized labor rights but also their
rights under China's Constitution and laws.
Overview
The Commission's 2002 Annual Report found working
conditions and respect for basic, internationally recognized
worker rights in China to be well below international norms in
numerous respects. It also found that working conditions and
respect for worker rights in China were frequently in violation
of China's own laws, especially those governing wages and
overtime pay, work hours and overtime hours, and workplace
health and safety. Over the last year, these conditions have
remained largely unchanged.
The Chinese government continues to deny its citizens the
right to freely organize and to bargain collectively and
continues to
imprison labor leaders and actively suppress efforts of workers
to represent their own interests. Worker unrest continued in
2003, often in association with the closing of state-owned
enterprises. Although no reports reached Western news media
about massive worker demonstrations of the scale that occurred
in northeast China in 2002, numerous reports in 2003 described
smaller-scale protests by workers whose rights were ignored by
management at collapsing state-owned companies. The government
suppressed these protests with the same techniques used in
northeast China in 2002. In addition, the Chinese government
continues state-sanctioned discrimination against migrant
workers and practices forced and prison labor. Child labor
continues to be a significant problem in China.
International Labor Organization
Through the International Labor Organization (ILO), of
which China is a member, most nations of the world have
acknowledged the existence of a basic floor of international
standards for the rights of workers--the rights to associate
and to bargain collectively, elimination of forced labor,
effective abolition of child labor, and nondiscrimination. The
ILO's Declaration on Fundamental Principles and Rights at Work
re-affirms the commitment of ILO Members to those basic rights.
Guidance on the full scope of the rights and principles
enumerated in the Declaration is provided by the ILO's eight
core conventions.\109\ Many countries, including the United
States, have not ratified all of the ILO's core conventions,
but the Declaration states, ``even if they have not ratified
the [ILO] Conventions . . . [ILO Members] have an obligation
arising from the very fact of membership in the Organization to
respect, to promote and to realize, in good faith and in
accordance with the Constitution, the principles concerning the
fundamental rights which are the subject of those
Conventions.''
With the exception of the ILO provisions relating to
freedom of association and collective bargaining, Chinese labor
law generally incorporates the basic obligations from the ILO's
eight core conventions. The Chinese government's failure to
enforce existing laws, however, makes this incorporation
largely irrelevant when considering actual working conditions
in China.
Freedom of Association and Collective Bargaining
The Chinese government denies its citizens the freedom to
associate and forbids them from forming independent trade
unions. The government has made no progress in the past year
toward respecting this right, and continues to use the All-
China Federation of Trade Unions (ACFTU) as a tool of Communist
Party control of union activity. China continues the practice
of imprisoning labor leaders as a means of repressing
independent labor activity.
The inability of Chinese workers to organize independent
labor unions prevents them from defending their own interests.
For working conditions in China to improve significantly,
workers require greater freedom of association in law and in
practice. In the short term, however, greater awareness by
Chinese workers of the limited rights already available to them
could yield some workplace improvements.
Workers and labor experts in China and elsewhere recognize
that the ACFTU, the only legal labor organization in China, is
ineffective as a voice for worker rights. Article 11 of China's
Trade Union Law states that all basic level unions must be
approved by the next higher level of union, ensuring state
control of any locally-formed worker organizations. In
testimony at a July 2003 Commission roundtable, Phil Fishman of
the AFL-CIO stated that ``. . . institutionally the ACFTU is a
creature of the Chinese state and Communist Party and is
obligated by its own rules to act as a transmission belt for
Party and state policy.'' \110\
Chinese workers are generally unaware of the limited rights
to organize already available to them. These rights are
contained in the Trade Union Law but are implicit rather than
explicit. The law requires all worker organizations to
affiliate with the ACFTU, but does not state explicitly that
the ACFTU must be involved in the establishment of new
unions.\111\ This allows, in theory, for workers to organize a
union chapter and then seek affiliation. This has not, however,
happened to date, and would likely be very difficult in
practice.
Han Dongfang, Director of the China Labour Bulletin, a Hong
Kong-based publication, testified to a November 2002 Commission
roundtable that government efforts to improve workplace safety
had been ineffective due to a lack of worker involvement. Han
added that a new workplace safety law (effective November 1,
2002) calls for workers to be involved in workplace safety,
which suggests the possibility of workers organizing for
specific purposes.\112\
Similarly, at an April 2003 Commission roundtable, Doug
Cahn, Vice President for Human Rights Programs at Reebok
International, Ltd., described Reebok-facilitated elections for
worker representatives at two Chinese factories.\113\ Cahn
described the elections as free, open and fair, and consonant
with Chinese labor law. These elections suggest that existing
Chinese law may be sufficiently flexible to allow workers to
select their own leaders in some circumstances, notwithstanding
legal limits on the creation of independent labor unions. Cahn
also indicated that it is too early to predict whether the
Reebok elections will affect the workers' ability to assert
their rights in the future. Without training for elected
leaders on how to represent workers' rights and claims, these
organizations are unlikely to drive significant change.
Moreover, given the practical limitations on establishing
independent worker organizations, the elections sponsored by
Reebok may be seen as a small but positive step forward, but
they do not represent a significant advancement of freedom of
association in China. Without independent labor unions and the
ability of workers to organize freely and represent themselves,
collective bargaining cannot truly be said to exist in China.
Legal action against workers who attempted to establish
independent worker organizations continued over the past year.
In May 2003, a court in Liaoyang, Liaoning Province convicted
labor protest leaders Yao Fuxin and Xiao Yunliang of subversion
and sentenced them to 4 and 7 years in prison respectively. The
pair led peaceful protests in Liaoyang during March 2002 and
were detained before trial for almost a year. In June 2003,
their appeal of the convictions was denied. Neither family was
notified of the appeal proceedings, nor were their lawyers
present.
Working Conditions
Over the past year, generally poor working conditions in
Chinese factories have not changed significantly. Amidst rising
concern in the United States about the loss of U.S.
manufacturing jobs to China, the ability of Chinese employers
to avoid the expense of meeting international labor standards
has continued to be a factor in China's competitive advantage.
Workplace Health and Safety
Poor to non-existent enforcement of existing regulations,
rather than a lack of adequate legal provisions, is the
determining factor behind China's unsafe workplaces. Mines
continued to be the most hazardous of China's many dangerous
workplaces. In a meeting with officials of the Department of
Labor's International Labor Affairs Bureau (ILAB) in August
2003, officials of China's State Administration for Work Safety
indicated that 6,995 Chinese miners died on the job in 2002. At
a Commission roundtable held in November 2002, Han Dongfang of
the China Labour Bulletin cited Hong Kong press reports that
100,000 Chinese workers died in Chinese workplaces between
January and September 2002.\114\
Government bodies do not enforce existing safety
regulations in most Chinese workplaces, meaning that many
Chinese-made products purchased in the United States are
produced under conditions that would be unacceptable to most
Americans. Discussing a new health and safety law and the
chemical handling directives that went into effect in November
2002, labor scholar Trini Leung told a Commission roundtable
that, ``This law is the culmination of over a decade of efforts
and resources . . . [and] 1 week into its effective date, it's
not too early to announce that this statute will, just like
hundreds of other laws in China . . . become another
meaningless document sitting on the shelf while violations go
from bad to worse.'' \115\
Wages and Working Hours
In much of China, particularly in the export-producing
areas of southern China, workers continue to work hours well in
excess of legal limits, and for wages that are frequently not
calculated according to law. According to Chinese labor law,
the regular workweek is limited to 8 hours per day, 5 days per
week (40 hours).\116\ Overtime is limited to 3 hours per day
and 36 hours per month unless special permission is sought and
certain conditions met. Overtime on regular workdays is to be
paid at 150 percent of base pay (time and a half), 200 percent
on weekends (double time), and 300 percent on national holidays
(triple time).\117\ Numerous conversations between Commission
staff and Chinese, Hong Kong and U.S. NGOs involved with labor
issues, as well as with U.S. and European companies, indicate
general agreement that workers in China are frequently required
to work in excess of legally allowed overtime, and that
overtime pay is frequently calculated at the same rate as work
performed during regular work hours, rather than at mandated
premium rates.
Codes of conduct adopted by most U.S. companies require
workweeks not to exceed 60 hours per week, including overtime.
Although this 60-hour workweek exceeds China's legal limits,
many companies report significant difficulty in persuading
their suppliers to adhere even to this standard.
Prison and Forced Labor
Working conditions in many privately owned Chinese
factories are such that workers cannot refuse overtime, but
observers disagree whether this practice meets the definition
of forced labor. However, forced labor in other forms is common
in China. Called laojiao and laogai in Chinese (depending
whether the prisoner is detained for ``re-education through
labor'' by administrative means without trial or forced to
engage in labor while serving a formal criminal sentence),
forced labor is an integral part of China's prison system. As
discussed in Section III(a), public security authorities have
the power to place detainees in ``re-education through labor''
facilities without trial. Although laogai has been officially
purged from the Chinese criminal code, China's criminal justice
system continues to force convicted offenders to work in prison
facilities. Unlike U.S. prisoners, Chinese prison laborers
often cannot refuse to work, and work under conditions that
violate China's own law and international labor standards.
Section 307 of the Tariff Act of 1930 (10 U.S.C. Sec. 1307)
prohibits the import of goods made by prisoners into the United
States. To promote effective enforcement of Section 307, the
United States-China Relations Act of 2000 created a ``Task
Force on the Prohibition of Importation of Products of Forced
or Prison Labor from the People's Republic of China.'' To date,
the Task Force has been concerned principally with
implementation of a 1992 U.S.-China Memorandum of
Understanding, which allows U.S. Customs to request permission
to visit Chinese prisons suspected of producing goods for the
U.S. market. A 1994 bilateral Statement of Cooperation
clarified procedures to be followed in requesting and making
these inspections.
After 1994, Chinese authorities stopped agreeing to
inspection requests from U.S. Customs. However, the Chinese
government agreed in mid-2002 to cooperate in clearing the
backlog of old requests and allowed a visit to a site suspected
of producing goods for the U.S. market in the mid-1990s.
Although as a result of the lack of Chinese cooperation,
several years had elapsed since the original allegation was
made, U.S. Customs inspectors found no evidence that the
facility had been producing for export to the United States, or
that it had been used recently for production of any kind.
Currently, the U.S. government counts a total of 18 outstanding
requests for prison site visits, most of which were filed
between 1995 and 2002. The integration of the U.S. Customs
Service into the new Department of Homeland Security delayed
efforts to continue the inspections process. The Task Force was
not reconstituted until mid-2003.
Goods made in Chinese prisons probably do not constitute a
large percentage of overall Chinese imports into the United
States. Whatever the scale of the problem, the model of
enforcement set out by the 1992 Memorandum of Understanding is
inadequate to address the questions raised by complaints.
Enforcement of Section 307 currently depends on private
individuals or organizations lodging complaints with U.S.
Customs. A producer's competitors have the greatest motivation
to lodge complaints, but they often lack credible evidence to
support their allegations.
State-Owned Enterprises
The collapse of China's state-owned enterprises continued
during late 2002 and 2003. Between 1998 and 2002, an average of
more than 6,000 companies in China went bankrupt each year,
most of them state-owned enterprises.\118\ Shrinking employment
rolls affect women disproportionately since managers tend to
assume that unemployed women will be supported by their
husbands, and therefore lay them off first. Significant worker
unrest has grown out of the mass dismissals following these
bankruptcies, but few details of these protests exist outside
China. As a political party nominally constituted to represent
and advance the interests of peasants and workers, the
Communist Party views worker unrest with particular alarm.
Child Labor
In the past, Chinese authorities generally denied that
child labor was a significant problem. News media and private
sources reported comparatively few incidents of workplace
injury or fatalities involving children in 2003, although
reliable information about the severity of the problem is
difficult to obtain.
New Chinese regulations on the employment of children took
effect on December 1, 2002. The employment of children under
the age of 16 is banned, with fines of up to 10,000 yuan for
violations. The new regulations also require employers to check
workers' identification cards, which may help prevent underage
workers from being inadvertently hired in some factories.\119\
While the new regulations do not provide any significant or
fundamental change in China's approach to preventing child
labor, when combined with China's ratification on August 8,
2002 of ILO Convention 182 on the Elimination of the Worst
Forms of Child Labor,\120\ the new regulations may indicate
that the problem of child labor is starting to be considered at
the national level. However, like other labor problems in
China, recognition at the national level rarely translates into
full, or even partial, implementation at the local level.
III(c) Freedom of Religion
FINDINGS
Intolerance of free religious expression
continues in China. Scores of Christian, Muslim and
Tibetan Buddhist worshippers were arrested or detained
in 2003. Government authorities continue to repress
other spiritual groups, including the Falun Gong
spiritual movement, chiefly through the use of anti-
cult laws.
Harassment and repression of Catholics
practicing their faith outside the officially
sanctioned church continue. No progress has been made
in normalizing relations between the Holy See and the
Chinese government.
Uighur Muslims in Xinjiang continue to suffer
harsh repression and restrictions on religious
activity, exacerbated by ongoing ``anti-splittism'' and
``counter-terrorism'' campaigns in the region.
In Tibetan areas, official controls continue
to limit the practice of Tibetan Buddhism. Tibetan
lamas are perceived by government authorities to wield
significant influence in Tibetan communities and can
become the targets of government crackdowns. Despite
the central role of the Dalai Lama in Tibetan Buddhism,
Tibetans caught with images of him or copies of his
religious teachings may face abusive treatment,
including
arrest.
Overview
China's Constitution guarantees protection of ``normal
religious activity.'' \121\ Despite this guarantee, the state's
requirement that religion be congruent with patriotism has led
to widespread repression of religion. In Tibetan and Uighur
areas, where separatist
sentiment often is interwoven with religious conviction, state
repression of religion is particularly harsh. Chinese
authorities do not clearly distinguish between the peaceful
expression of separatist sentiment and terrorism, creating
additional pressures on religious practices that do not embrace
Chinese nationalism.
The Chinese government allows religious practitioners to
meet only in government-approved mosques, churches,
monasteries, and temples. Authorities oversee the selection of
religious leaders and monitor religious education. The Chinese
government often labels unregistered religious groups and
movements as ``cults,'' and those who engage in such activities
can be arrested on charges of ``disturbing social order.'' In
many cases, local authorities enforce regulations that are more
restrictive than those enforced at the national level.
Nevertheless, despite the risks, a growing number of religious
practitioners choose to worship outside the government-
controlled religious framework.
Religious freedom in China was a central topic during
discussions between President George W. Bush and then-President
of China Jiang Zemin in Crawford, Texas in October 2002.
Following that meeting, President Bush told reporters that he
had reminded President Jiang of ``the importance of China
freeing prisoners of conscience'' and ``giving fair treatment
to peoples of faith.'' President Bush also raised ``the
importance of respecting human rights in Tibet and encouraged
more dialogue with Tibetan leaders.'' \122\ In March, the U.S.
State Department included China on a list of six countries of
particular concern for severe violations of religious
freedom,\123\ a finding supported by the U.S. Commission on
International Religious Freedom.\124\
Religious Freedom for China's Protestant Christians
Over the past year, human rights groups have reported the
arrest or detention of scores of house church participants
across China. In June, Human Rights in China (HRIC), a U.S.
human rights NGO, reported the arrest of 12 members of a house
church in Funing County, Yunnan Province.\125\ According to the
report, eight face imprisonment on charges of ``engaging in
feudalistic superstition.'' HRIC called the police action in
Funing and other towns in Yunnan ``the most wide-scale
crackdown on house churches carried out in China this year.''
\126\
Relatives of Pastor Gong Shengliang received information in
May 2003 from a source inside Hubei Province's Jinzhou prison
that the founder of the outlawed South China Church is
suffering from serious medical problems. The Chinese government
has denied these reports. Mr. Gong is serving a life sentence
on charges of establishing a cult organization, raping women,
and violating social order. His supporters dispute these
charges. Mr. Gong was given a death sentence in 2001, but after
an international outcry, his punishment was reduced to life in
prison. The South China Church numbers some 50,000 members in
Hubei and other provinces.\127\
China's State Administration for Religious Affairs (SARA),
the government entity that regulates religion, recently
estimated that China now has 25 million Protestants.\128\ But
Western researchers estimate that 50 million or more
Protestants worship in unauthorized churches.\129\
Religious Freedom for China's Catholics and China-Holy See Relations
The Vatican has reported no progress over the past year in
efforts to normalize relations with Beijing. According to a
June 2003 report by the Union of Catholic Asian News (UCAN),
Cardinal Angelo Sodano, the Vatican secretary of state,
described relations between the Holy See and China as being
``at a standstill.'' He said, ``the Christian community in
China lives in the midst of difficulties--one goes into prison,
another comes out,'' but ``the seminaries are full.'' \130\
China broke diplomatic relations with the Holy See in 1951,
but Vatican contacts with China continued until the late 1950s.
For some years before 2000, the Holy See engaged in indirect
but steady contacts with China. However, relations soured in
2000, after China hastily ordained five bishops in Beijing
without papal approval. China ended all dialogue with the Holy
See after Pope John Paul canonized 120 Chinese martyrs on
China's National Day, October 1, 2000.
ZENIT, a private Catholic news agency, reported in May 2003
that Chinese authorities had promulgated three official
documents that formalize stricter control over the lives of
Catholics throughout China.\131\ The Vatican says the rules
contained in the documents aim to increase the government-run
Catholic Patriotic Association's control over the Chinese
Catholic Church. According to ZENIT, Ye Xiaowen, director of
the SARA, justified the three documents by saying that they
``filled the void'' in the ``democratic'' management of the
Church. The Vatican has warned that the new rules might trigger
``a new wave of persecutions.'' \132\
Catholics in China number about 12 million, though the
government only recognizes 4 million to 5 million. There are
117 Catholic bishops, only 70 of whom are recognized by state
authorities. The government recognizes 2,600 priests. Another
1,000 are not recognized. Bishops associated with the Catholic
Patriotic Association have ordained 1,500 priests over the past
20 years.\133\
In February 2003, the Cardinal Kung Foundation, a U.S. NGO,
published a list of two bishops and nine priests of the Baoding
Diocese who are either missing or detained, including Bishop
James Su Zhimin, 70, who local security authorities reportedly
arrested in October 1997. Nationwide, the Vatican says that
more than 50 underground Chinese Catholic bishops or priests
have been detained or live under house arrest or police
surveillance. Deputy Assistant Secretary of State Randall G.
Schriver testified before a Commission Hearing in July 2003
that the U.S. government is concerned about the cases of Bishop
Su and other Chinese Catholic leaders. ``We continue to urge
the Chinese government to release these detainees, and to
resume its dialogue with the Vatican, in hopes that China will
acknowledge Rome's unique role in the spiritual lives of all
Catholics around the world, including in China.'' \134\
Religious Freedom for Tibetan Buddhists
In Tibetan areas, numerous official controls continue to
limit the practice of Tibetan Buddhism. Authorities often
characterize the religion as backward and its practice as a
burden on society. Chinese authorities argue that the Dalai
Lama is a hostile political figure, not a legitimate religious
leader, and that programs counteracting veneration of him do
not violate religious freedom. Chinese authorities attempt
systematically to repress Tibetan devotion to the Dalai Lama,
with little success. Police confiscate printed, audio, and
video material featuring the Dalai Lama's religious teachings
and speeches, and those possessing such material sometimes face
abusive treatment, including beating and detention.
Political education sessions require that monks and nuns
denounce the Dalai Lama and Gedun Choekyi Nyima, the boy
recognized by the Dalai Lama in 1995 as the reincarnation of
the Panchen Lama, Tibet's second-ranking spiritual leader.
Chinese authorities took the boy, then age six, and his parents
into custody in 1995 and installed another boy, Gyaltsen Norbu,
as the reincarnated Panchen Lama several months later. Gedun
Choekyi Nyima and his parents have been held incommunicado
since that time. Chinese authorities report that the boy is
living a ``normal'' life, but Chinese authorities have refused
requests to allow independent observers to verify this claim.
The U.S. government has repeatedly urged China to end
restrictions on Gedun Choekyi Nyima and his family, and to
allow international representatives to visit them. Meanwhile,
Gyaltsen Norbu's appointment continues to stir widespread
resentment among Tibetans. His visits to important religious
sites such as Tashilhunpo Monastery in the Tibet Autonomous
Region, the historic seat of the Panchen Lamas, and Kumbum
Monastery in Qinghai Province, are infrequent, brief, and
conducted under tight security.\135\
Authorities have intensified a crackdown on religious
activity and association in Kardze (Chinese: Ganzi) Tibetan
Autonomous Prefecture, Sichuan Province. A Commission topic
paper released in February 2003 discussed the case of Tenzin
Deleg, a Buddhist teacher who was sentenced to death with a 2-
year suspension for conspiracy in a series of explosions in
Chengdu that resulted in one death.\136\ He has consistently
denied involvement, and Chinese authorities have not made
public any evidence linking him to the blasts. Tibetan reports
reaching the West say he was singled out for persecution
because of his stature in the local community and his devotion
to the Dalai Lama. Lobsang Dondrub was executed in January for
his alleged involvement in the explosions. In February 2002, a
prayer ceremony in a residential courtyard in Kardze County for
the long life of the Dalai Lama resulted in a wave of
detentions, with at least seven sentenced to administrative
detention. In addition, Sonam Phuntsog, another influential
Buddhist teacher, was arrested in 1999 and sentenced to 5 years
in prison for allegedly advocating separatism.\137\ No details
about evidence or charges against him have been made public by
Chinese authorities.
Religious Freedom for Uighur Muslims in Xinjiang
According to official estimates, China had some 20 million
Muslims, 35,000 registered places of Islamic worship, and over
45,000 imams across China in 2002.\138\ The Chinese government
takes some measures to show consideration for the religious
beliefs and associated cultural practices of China's Muslims.
Most notably, the government permits and sometimes subsidizes
Muslims to make the Hajj to Mecca. According to official
Chinese figures, 5,000 Chinese Muslims made the Hajj in 1998.
In the subsequent 5 years, however, independent reports
estimated that far fewer Chinese Muslims made the Hajj. The
China Islamic Association reports that 2,000 Chinese Muslims
took part in the Hajj with official delegations in 2001.\139\
Other Muslims may not have been counted in official statistics
if they made the Hajj through neighboring countries such as
Pakistan. Cost and passport issuance restrictions often deter
Chinese Muslims who wish to make the trip to Mecca. Unofficial
sources say that most Chinese Muslims who make the Hajj are
from the Hui, another one of China's minority groups, rather
than Uighurs. Unofficial accounts also suggest that Muslims who
are allowed to make the Hajj and who are subsidized for it
generally must be loyal government officials, active or
retired.
Despite permitting some Muslims to make the Hajj, the
Chinese government continues to limit the religious freedom of
Xinjiang's Muslim Uighurs, who constitute nearly half of
China's Muslim population. Anti-separatism and anti-terrorism
crackdowns persist, contributing to the harsh repression of
Uighur religious activities in the region. These campaigns
extend to stanching ``religious extremism'' and ``illegal
religious activities.'' While the government justifies its
crackdowns on religious activities under the rubric of fighting
``splittism'' or ``terrorism,'' many observers believe that the
Chinese government is using the global war against terrorism as
a pretext to suppress non-violent Uighur religious activity in
Xinjiang.
In 2002, Party and government officials in the Xinjiang
Uighur Autonomous Region emphasized more stringent supervision
of religious affairs. In Yili Prefecture, authorities ordered
increased scrutiny of Muslim religious ceremonies such as
weddings, funerals, circumcisions, and house moving
rituals.\140\ Xinjiang authorities launched a campaign to
dissuade Muslims from wearing religious attire such as veils
and discouraged religious marriage ceremonies. Government
officials also continued to restrict mosque building in
Xinjiang.
The government continues to strictly regulate religious
education and participation in religious activities by young
people, preventing parents from exercising full freedom over
the religious aspects of their childrens' upbringing.
Authorities prohibit Uighurs under the age of 18 from entering
mosques in Xinjiang. Signs reportedly posted at the entrances
of most mosques announce the ban. University students found
worshipping in mosques or participating in other religious
activities face expulsion from their schools. Officials also
limit participation in religious activities by teachers and
professors. The government restricts religious teaching and
periodically censors sermons given by imams. Authorities
closely monitor the activities of imams, and local branches of
the state-controlled Islamic Association of China must approve
the appointment of imams. Government authorities continued to
conduct mandatory political study sessions for imams and
religious personnel during 2003.
While government policy limits the religious activities of
Xinjiang's Uighur population, Hui Muslims throughout China
enjoy greater religious freedom than Uighur Muslims. Mosques in
areas with sizable Hui populations reportedly lack the signs
common in Uighur areas prohibiting those under the age of 18
from entering mosques. Furthermore, reports indicate
considerable mosque construction and renovation in
predominantly Hui areas. Observers concede that the Hui appear
to enjoy a greater degree of religious freedom than their
Uighur Muslim coreligionists, to whom the
Chinese government often attributes separatist and terrorist
sentiments and actions.
Spiritual Movements
The crackdown on the Falun Gong spiritual movement
continues, although the vitriolic media campaign that
characterized the
government's anti-Falun Gong efforts between 1999 and 2001 has
subsided. Nevertheless, a June 2003 commentary in the state-run
newspaper People's Daily accused the group of deliberately
trying to spread the SARS virus.\141\ Chinese authorities
continue to confine Falun Gong practitioners in prisons or
psychiatric institutions for long periods. Police reportedly
torture some practitioners in an effort to coerce them into
renouncing their beliefs.
III(d) Freedom of Expression
FINDINGS
China's citizens have access to a growing
variety of government-controlled information sources.
Many of these publications are becoming increasingly
aggressive in reporting on matters of public concern,
despite the government's continued practice of shutting
down publications that criticize the Communist Party or
the central government and firing editors who fail to
follow the dictates of the Communist Party's Central
Propaganda Department.
At the risk of imprisonment, Chinese citizens
are increasingly accessing media not controlled by the
government and engaging in unauthorized publishing.
Chinese authorities are considering a plan to
privatize many government publications. If implemented,
this reform could result in greater editorial
independence for China's domestic media. However, the
recent issuance of a list of forbidden media topics
demonstrates that, at present, complete editorial
control over all political news reporting continues to
be a top priority for the government.
China's government continues to employ an
extensive system of administrative prior restraints to
prevent its citizens from exercising their
constitutional right to freedom of expression. The SARS
crisis did not result in any meaningful reform of the
prior restraint system.
China's government continues to develop and
implement laws and technologies to prevent its citizens
from accessing information from sources it cannot
control, including shortwave and satellite broadcasts,
foreign Web sites, e-mail, and mobile phone text
messages.
Chinese authorities continue to use vague,
selectively enforced national security laws to punish
their critics and encourage self-censorship.
Overview
Under the Chinese Constitution, Chinese citizens enjoy
freedom of speech and freedom of the press, in practice the
government continues to suppress freedom of expression in a
manner that directly contravenes not only the Universal
Declaration of Human Rights and the International Covenant on
Civil and Political Rights, but also the Chinese
Constitution.\142\ In China, only those with government
authorization may legally gather news\143\ or engage in
publishing,\144\ and the government continues to detain and
imprison individuals who publish criticisms of the Communist
Party, the central government, or their policies. Chinese
authorities continue to cite Karl Marx and Mao Zedong to
justify these repressive policies as necessary and inevitable
extensions of Communist ideology, while ignoring the writings
of these individuals that criticized similar policies when
their own publications were the targets of censorship.\145\
Despite barriers to access to the means of publication and
the dangers inherent in publishing sensitive information,
members of China's ``free-speech elite'' are able to express
concerns and criticism regarding the government with less fear
of punishment than the average Chinese citizen. This group is
composed of senior government and Communist Party leaders,
those with the patronage of such leaders and, to a lesser
extent, academics. The operative principle could be expressed
as follows: the degree to which the government is willing to
tolerate criticism of its leaders and policies is contingent
upon the size and nature of the audience and the ideological
credentials of the speaker. For example, Chinese and Western
academics convened a conference on the death penalty in January
2003, and some months later, a spirited debate ensued in the
Chinese media. Centered on the review and approval process for
death penalty cases, the debate in the press featured
analytical articles by legal experts from Chinese
universities.\146\ However, the Chinese government tolerates
such debates only as long as they occur in private discussions,
closed academic conferences, government-authorized publishing
outlets, or other forums where the government does not feel
there is any threat of public participation that it cannot
control.\147\ Authorities continue to silence debates if they
begin to take on a life of their own, and refuse to recognize
the right of the average Chinese citizens to publish their
opinions on political issues in forums that are free from
government censorship.\148\
Certain groups and individuals who are unable to obtain
government authorization to publish manage to put out books and
periodicals on a small scale, but this is possible only through
subterfuge and violating Chinese law (for example, by stamping
publications as ``not for external distribution,'' or by
purchasing book numbers that licensed publishers illegally
offer for sale). These private publishers are therefore subject
to the threat of closure and arrest each time they exercise
their right to freedom of expression.
The spread of the Internet and the introduction of
capitalist market forces to the publishing industry have
resulted in more sources of information becoming available to
the citizens of China. While still state-controlled, China's
media are becoming increasingly vigorous. Chinese authorities
have also announced that they are
considering privatizing most government publications.\149\
Depending on how it is implemented, this proposal could
represent a first step toward relative editorial independence
for China's domestic media. At present, however, the
government's practices of replacing editorial and managerial
personnel, shutting down entire publications, imprisoning
journalists and writers for expressing political opinions, and
blocking access to information it does not control demonstrates
that editorial control over all politically sensitive reporting
remains a top priority, and that it will not tolerate articles
critical of the local government unless the author portrays the
Communist Party and the central government in a generally
positive light.\150\
Chinese authorities employ three tools to hinder the free
flow of information and suppress freedom of expression: prior
restraints, monitoring and jamming of communications, and
selective enforcement of broad and vague national security
laws. The past year has seen Chinese authorities make extensive
use of each of these tools.
Prior Restraints
The term ``prior restraint'' refers to a system in which
the government may deny a person the use of a forum for
expression in advance of the actual expression. Such systems
are rare in representative democracies with respect to print
media and the Internet. Before the Chinese Communist Party came
to power its official newspaper described prior restraints on
publishing as ``fascist.'' \151\ Today, however, Chinese
authorities employ extensive prior restraints over print and
Internet media.
Rulers have recognized for centuries that prior restraints
are effective in silencing dissent.\152\ One of the most
effective forms of prior restraint, and the form preferred by
Chinese authorities, is to allow only authorized persons to
publish.\153\ The requirement of obtaining and maintaining
authorization creates barriers to entry, and means that Chinese
authorities control who gets to speak (by refusing to grant
authorization) and keep their fingers on an ``on-off switch''
with respect to an entire publication (by maintaining the
ability to revoke authorization and silence the speaker
completely).
Chinese law states that the government directly controls
the amount, structure, distribution, and coordination of all
publishing in the country, and that only authorized government-
sponsored entities may engage in publishing:
No one may publish a newspaper, periodical,
book, or any other publication without government
authorization and sponsorship;
Periodicals and Web sites may only publish
news acquired from government-authorized sources;
No one may engage in the publication,
production, copying, importing, wholesale, retail, or
renting of audio-visual products without authorization;
No one may operate a facility to print or copy
publications without authorization;
No one may import publications without
authorization;
No one may exhibit imported publications
without authorization; and
No one may publish, produce, import, or
distribute magnetic, optical, or electronic media
containing drawings, writing, sound, or pictures
without authorization.\154\
The Communist Party's Central Propaganda Department sends
out regular bulletins to editors informing them which topics
are forbidden.\155\ For example, in July, Xinhua reported that
Shen-zhen's Administration for Press and Publication had issued
``Measures for Publishing Orientation Warning Work'' specifying
how authorities may require editors and managers of
publications exhibiting inappropriate political orientation to
undergo ``critical education'' and possibly reassignment.\156\
More recently, in August reports emerged that Chinese
authorities had issued a list of ``three topics that cannot be
mentioned'' (san bu neng ti) to media outlets and academic
institutions prohibiting the publication of articles on, or
academic discussion of, constitutional amendments, political
reform, and the Tiananmen Square crackdown.\157\
Media outlets that fail to obey mandates like the
aforementioned examples are subject to closure, and their
editors, managers, and reporters to dismissal:
In November 2002, Jin Minhua, an editor with
Shenzhen Zhoukan, was fired at the behest of the
Communist Party's Central Propaganda Department after
the paper published an article depicting Hu Jintao as a
puppet of Jiang Zemin.\158\
In March 2003, Chinese authorities suspended
publication of the 21st Century World Herald after it
published an article referring to democracy in China as
``fake'' democracy.\159\
In April 2003, Chinese authorities replaced
the editor-in-chief of the politically cutting-edge
Southern Weekend with a senior official from
Guangdong's Communist Party Propaganda Department.\160\
In June 2003, Chinese authorities shut down
the Beijing Xinbao and fired some editorial staff after
the paper printed an essay criticizing the National
People's Congress.\161\
China's prior restraint system not only allows authorities
to exercise these ``negative'' controls over the media by
prohibiting people from publishing and forbidding the
publication of objectionable articles, but it also enables the
government to suppress freedom of expression through
``positive'' controls, by dictating to editors what they must
print. The government exercises these positive controls by
requiring senior editorial staff to receive political
indoctrination, and by convening regular meetings with editors
and issuing bulletins to inform them of what stories they must
carry and how certain issues must be portrayed.\162\ In the
weeks before the 16th Party Congress in 2002, the government
demonstrated that it is both willing and able to force
publications to print what it demands when it required popular
Internet portals such as Sohu.com to display banners praising
the Party and celebrating the Party Congress in lieu of paid
advertising.\163\
SARS provided a tragic example of how China's prior
restraint system allows the government to suppress freedom of
expression and prevent China's media from reporting on matters
of public concern. This system impedes the free flow of
information in a way that threatens the well-being of Chinese
citizens and, as China has chosen to participate increasingly
in global affairs, everyone with whom they interact.\164\
In December 2002, health care workers in Guangdong Province
began noticing people coming in with ``atypical pneumonia,''
and by early January 2003 people were already engaged in panic
buying at drug stores because of rumors of a ``mystery
epidemic.'' \165\ But the same government-controlled newspapers
that first broke the story in early January devoted most of
their coverage to stories with headlines claiming ``The
Appearance of an Unknown Virus in He Yuan is a Rumor'' and
articles quoting government claims that ``there is no
epidemic.'' \166\ Chinese authorities did not begin to allow
reporting on the crisis until the disease began killing people
in Hong Kong, where there is little direct government restraint
on the free flow of information. Even then, the government-
controlled Chinese media continued to insist that everything
was under control for several weeks.
In response to their cover-up and mishandling of the SARS
crisis, Chinese authorities did dismiss some senior officials
and enact regulations to discourage provincial and local
officials from concealing information from the central
government. However, these reforms were not intended to relax
the government's control over the media or the free flow of
information to the general public. Rather, the goal was to
increase the flow of information to central authorities in
Beijing, control how the press reported on the matter, and
prevent private citizens from publishing opinions regarding the
government's handling of the crisis.\167\ For example, although
admissions that authorities mishandled the SARS crisis appeared
in some Chinese newspapers, criticism was limited to local
officials and ``the media,'' while the central government was
portrayed as coming to the rescue of the people.\168\ It
remained forbidden to discuss the lack of a free press or the
role that the Communist Party, the central government, and the
censorship and media control systems they have established
played in allowing SARS to spread unchecked for so long.\169\
The following events further illustrate how the SARS crisis
has not resulted in any meaningful relaxation of the Chinese
government's control over the reporting of politically
sensitive news:
In April 2003, authorities in Beijing arrested
a person for sending messages saying that an
``undiagnosed contagious disease was spreading in
Beijing,'' on the grounds that he was spreading rumors
and that ``Beijing had never had the spread of any
`mysterious illness.' '' \170\
In April 2003, two editors at Xinhua were
fired for publishing a document about SARS.\171\
In April 2003, Chinese authorities removed the
editor-in-chief of Southern Weekend, a publication
known for addressing politically sensitive topics, and
replaced him with Zhang Dongming, a former Director of
News Media at the Propaganda Department in Guangdong,
who some observers in China consider partly responsible
for the initial SARS cover-up.\172\
In May 2003, China blacked out a CNN interview
that was critical of the government's handling of the
SARS crisis.\173\
In June 2003, Chinese authorities blocked
distribution of an issue of Caijing magazine that
discussed the government's handling of the SARS crisis.
Although it was reported that Caijing editors claimed
that the failure to distribute the issue was the result
of logistical problems, censors repeatedly blocked
attempts by Commission staff to post questions such as
``Has Caijing been censored? '' on government-
controlled Internet bulletin boards.
In July 2003, the Propaganda Department issued
a notice to at least one television station prohibiting
it from inviting academics to discuss the government's
handling of the SARS crisis.\174\
Monitoring, Jamming, and Blocking of Information
Although the SARS crisis has resulted in Chinese
authorities encouraging the flow of government-controlled
information, the past year has seen no easing of the
government's blocking the flow of information that it does not
control. Chinese authorities continue to attempt to block Voice
of America and Radio Free Asia shortwave radio transmissions
directed into China. In a statement made before a Commission
roundtable in December 2002, a representative of the
Broadcasting Board of Governors (BBG) said that the BBG has
filed complaints of ``harmful interference'' with the
International Telecommunications Union monthly since August
2000. China first acknowledged receipt of the complaints in
July 2002, and again acknowledged the complaints in August
2002. Failure to acknowledge complaints is itself a violation
of ITU radio regulations.\175\
The Chinese government restricts who can legally receive
satellite television broadcasts and restricts individual
ownership of satellite receivers. Chinese viewers often ignore
these restrictions and install illegal receivers to view
foreign broadcasts.\176\ While authorities have allowed limited
legal distribution of some foreign channels to some households
in Guangdong Province, national distribution is limited to luxury
hotels and foreign compounds. Authorities have also begun requiring
that all foreign satellite television broadcasts be distributed
through a government-owned and operated platform, which has enabled
more fine-tuned censorship of foreign television broadcasts.\177\
For example, in June 2003, Chinese authorities cut CNN's
broadcast into China just as a Hong Kong lawmaker began to
criticize proposed anti-subversion legislation and resumed the
broadcast once the interview was over.\178\
Chinese authorities continue to block human rights,
educational, political, and news Web sites without providing
the public notice, explanation, or opportunity for appeal.\179\
Chinese law requires U.S. Internet service providers operating
in China to comply with Chinese government controls on Internet
content and to cooperate with Chinese authorities in the
enforcement of Chinese law. Some in the United States have
expressed concern that Chinese authorities are using
technologies developed by U.S. companies as part of this
effort.\180\ Chinese officials have publicly admitted that the
government has established a national firewall to prevent
Chinese citizens from accessing certain types of content.\181\
Studies conducted by the Commission staff and others indicate
that the firewall is used primarily to block political content,
not obscenity or junk mail. Tests performed by the Commission
staff indicate that the Chinese government continues to
manipulate Internet communications in the following manner:
Attempting to access prohibited Web sites
results in either a gateway timeout or ``Page Cannot Be
Displayed'' message. Chinese authorities continue to
block sites such as Google's cache (which would allow
people to view ``snapshots'' of sites taken by Google,
and thereby view Web pages which were otherwise
blocked), the Alta Vista search engine, BBC (Chinese),
VOA and those of most human rights organizations
critical of the Chinese government (including Amnesty
International, Human Rights Watch, Human Rights in
China, China Labor Bulletin, the Dui Hua Foundation,
and Reporters Without Borders).
Searching for certain sensitive terms, such as
``Falun Gong,'' on search engines regulated by the
Chinese government yields results (which do not deviate
from the official government position), while searches
for the same terms on search engines not regulated by
the Chinese government, such as Google, results in the
Internet browser being temporarily disabled.
Attempting to send e-mails from China to well-
known dissidents using an Internet browser interface
results in the browser being temporarily disabled.
Chinese Internet users are generally able to access
English-language news from major Western news media outlets
through the national firewall, but Chinese authorities actively
block Chinese language news Web sites whose contents they are
unable to control. For example, tests performed by the
Commission staff indicate that while Internet users could
access the BBC and Radio Canada Web sites in English, the
Chinese versions were inaccessible.
Over the past year, Chinese authorities continued their
policy of increasing the extent of Internet censorship during
politically sensitive times. For example, Chinese authorities
blocked access to foreign news Web sites (even sites available
only in English such as the New York Times, Washington Post,
Wall Street Journal, and CNN) during the 16th Party Congress in
November 2002 and the 10th National People's Congress in March
2003.
Chinese authorities are becoming increasingly sophisticated
in how they censor the Internet and admit to developing
technologies that will both enable more targeted censoring and
notify government officials as soon as any person tries to
access such Web sites. Specifically, officials claim to be
prepared to deploy technologies that will allow them to
automatically and precisely block Web pages based, not on
specific words, but on the actual viewpoint of the author. In
February 2003, state-sponsored academic researchers in China
announced that they already developed such technology for a
``Falun Gong Content Examination System.'' Using this system if
an article contains pro-Falun Gong information, it is
designated as ``black.'' If the system determines an article
criticizes or opposes Falun Gong, it is designated as ``red.''
Articles dealing with Buddhism, qigong, and health care are
designated as ``neutral.'' The system can be installed on
personal computers, servers, and at national gateways, so that
as soon as a user tries to visit a Web page that is pro-Falun
Gong, the system can filter the page and immediately notify
authorities.\182\
Tests performed by Commission staff indicate that systems
providing this type of increasingly fine-tuned censorship have
already been deployed at some Internet cafes. Specifically, Web
pages containing sensitive content on sites that are otherwise
accessible begin loading, but before they are completely
visible the page is replaced by a message informing the user
that the content the user is trying to access is forbidden. The
browser is then automatically redirected to a government-
authorized general interest Web site, but the user is not told
why the site was prohibited or to whom an appeal should be
submitted to have the prohibition removed.
Internet bulletin board systems (BBSs) continue to provide
a glimpse at how Chinese authorities would like to shape the
Internet. As one Chinese government agency put it: ``[BBSs such
as the one operated by the official People's Daily] represent
the degree of freedom of expression the people of China have.''
\183\ Chinese law requires all BBSs to be licensed, all
articles to be constantly monitored, and all inappropriate
articles to be taken down. ``Internet police'' monitor domestic
BBSs,\184\ and BBS providers must keep a record of all content
posted on their Web site, the time it was posted, and the
source's IP address or city name.
BBSs use software to automatically block posts containing
blacklisted words and also use human monitors to block and
remove articles posted with content that they deem politically
unacceptable.\185\ It is possible to watch as users on
government-controlled BBSs debate with the censor about whether
or not a given post should be allowed. In one case, a
Commission staff member observed a user successfully persuade a
censor to allow his post because, even though the title sounded
like it was praising the U.S. multi-party system, in fact, it
was a long essay about the dangers inherent in such a system.
Commission staff regularly observe censors removing posts that
are either too critical of the government, or that might be
acceptable by themselves but have generated too many responses
critical of the government. BBSs that become known for allowing
cutting-edge postings on politically sensitive topics routinely
disappear from the Internet altogether.\186\
Selectively Enforced National Security Laws
Chinese national security laws do not clearly define the
scope of freedom of expression, and the Communist Party and the
Chinese government exploit these vague and broad regulations to
silence Chinese citizens who would criticize them and their
policies. Chinese law requires that anyone intending to
disclose information relating to state secrets, national
security, or the nation's leaders get prior government
authorization. The law then defines these terms to encompass
all forms of information pertaining to politics, economics, and
society.\187\ Therefore, anyone who publishes or passes on
information regarding such matters without prior authorization
has violated the law, regardless of the content of the
writings.\188\ In other words, Chinese authorities employ the
country's broad and vague national security laws as another
form of prior restraint.
In November 2002, Amnesty International published a report
detailing 33 cases of individuals detained or imprisoned for
national security-related charges in connection with the
unauthorized publication of articles on the Internet.\189\
Reports from U.S. and international NGOs such as the Digital
Freedom Network, the Committee to Protect Journalists,
Reporters Without Borders, and Human Rights in China indicate
that Chinese authorities regularly detain and imprison
professional and freelance journalists and writers based on
accusations that their writings violate national security
laws.\190\ For example:
In November and December 2002, authorities
detained several people who had signed an open letter
calling for political reform prior to the 16th Party
Congress.\191\
In February 2003 a court in the Xinjiang
Uighur Autonomous Region sentenced Tao Haidong to 7
years in prison for using the Internet to publicize
``reactionary'' essays that ``willfully smeared and
vilified the leaders of the Party and the nation.''
\192\
In May 2003, Huang Qi, a computer engineer,
was sentenced to 5 years imprisonment for subversion
and incitement to overthrow the government based on his
alleged involvement with a Web site intended to assist
people in locating relatives who had disappeared in the
1989 Tiananmen massacre.\193\
Also in May 2003, Jin Haike, Xu Wei, Yang
Zili, and Zhang Honghai, members of an informal
discussion group, were given prison sentences of
between 8 and 10 years for publishing articles on the
Internet expressing opinions such as ``The democracy
currently implemented in China is fake democracy'' and
``End the elderly persons' government, establish a
youthful China.'' \194\
In July 2003, the official People's Daily
carried a report that police in Henan had subjected a
15-year-old to administrative punishment for posting an
article on an Internet bulletin board that ``made
insinuations regarding the Party and the government.''
According to the report, it was necessary to punish the
child ``in order to safeguard respect for the law and
ensure the healthy development of the Internet.'' \195\
Chinese authorities have failed to make public any
information indicating that these individuals (or most of those
currently detained or imprisoned for their writings) did anything
more than express opinions or provide a forum for others to express
their opinions. Government authorities have not shown the
public that these people have committed any acts, or advocated
the commission of any acts, that violated any law or otherwise
represented a threat to the national security of China. Rather,
the only ``crime'' that has been shown to have occurred was the
unauthorized publication of articles that expressed opinions
inconsistent with, or critical of, the leaders and policies of
the Communist Party and the central government.
China's legislative bodies continue to enact broad and
conflicting regulations that hold out the threat of sanctions
for anyone who commits such vaguely defined breaches as
spreading rumors, offending the honor of China, or
``jeopardizing social stability.'' \196\ The example of the 15-
year-old in Henan clearly illustrates how Chinese authorities
use selectively enforced laws to encourage self-censorship:
reports of the incident by the state-controlled media did not
specify what the child wrote, nor did it specify the
``administrative punishment,'' which in China can include
prolonged imprisonment. This legal system hangs over the
citizens of China like a sword of Damocles, and as long it
remains in place, for every person who chooses to speak out and
is detained, many more will choose the cautious path and not
speak at all.
III(e) Economic, Social, and Cultural Rights
FINDINGS
The new Chinese family planning law retains
the broad elements of China's long-held policies on
birth limitation, including mandatory restrictions on
absolute reproductive freedom and the use of coercive
measures, specifically severe economic sanctions, to
limit births. However, the new law also mandates
prenatal and maternal health care and services for
women.
The Chinese government is taking significant
steps to address HIV/AIDS, but it must overcome
contradictory policies, underfunded programs,
bureaucratic rivalry, social prejudice, and public
ignorance about the disease if it hopes to avert a
public health catastrophe.
China has built a progressive legal framework
to protect women's rights and interests, but loopholes
remain, and implementation of existing laws and
regulations has been imperfect, leaving Chinese women
vulnerable to pervasive abuse, discrimination, and
harassment at home and in the workplace.
China's leaders have begun to recognize the
enormous social and economic costs of the country's
environmental problems, but the government's
environmental management remains weak. Implementation
of environmental laws and regulations is often poor due
to vague legal drafting and lack of consistency,
deficiencies in administrative coordination, lack of
trained personnel, and local intransigence. These and
other obstacles will continue to hinder Chinese efforts
to cope with the country's environmental challenges.
Introduction
Despite its ideological commitment to the International
Covenant on Economic, Social and Cultural Rights (ICESCR), the
Chinese government has found it difficult in practice to meet
all the challenges to its citizens' economic, social and
cultural rights brought by the transition to a market economy.
A coercive, top-down style of coping with government crises has
exacerbated these problems.
Over the past year, the Commission staff has convened
issues roundtables specifically devoted to rights specified by
the ICESCR: citizens' right to health care and efficient
systems of protection from epidemic disease, women's
reproductive and economic rights, childrens' rights, the rights
of all citizens to a safe environment, and citizens' reliable
access to education. Through these roundtables, as well as
through staff visits to many social organizations in China, the
Commission has concluded not only that China cannot currently
guarantee many of the rights enumerated in the ICESCR, but
also, in some areas, provides them less reliably and less
equitably than in the past.
At the same time, a ``civil society with socialist
characteristics'' has sprung up in China to fill some of the
gaps. The very existence of domestic organizations such as Wang
Canfa's Pollution Victims Legal Research Center show that
Chinese people feel increasingly empowered to organize to
address social problems without government assistance. The
government now must decide whether or not it can maintain
strict control over this new sector without destroying it.
Testifying before a Commission roundtable in June 2003,
Tiananmen Square-era leader and activist Wang Dan observed:
It is very important that the United States pay
attention to these sprouts of civil society. I believe
that it is very short-sighted for the U.S. government
only to focus on the actors in the Chinese government
and the Chinese Communist Party . . . I think that the
United States should move from attention only on human
rights issues to other issues of political reform and
democratic politics. One way that the United States can
do this is to provide support for NGOs and universities
in
China . . .\197\
Family Planning and Women's Reproductive Rights
China's coercive family planning policy continues to be of
particular concern to the Commission. On September 1, 2002, a
new Population and Family Planning Law drafted and passed by
the National People's Congress took effect, for the first time
codifying China's ``one-child'' policy. The new national law
retains the broad elements of China's long-held views on family
planning policy, including mandatory restrictions on absolute
reproductive freedom and the use of coercive measures to limit
births, specifically severe economic sanctions. The grim
results of such coercion in the past are evident in China's
2000 Population Census. The census reveals unbalanced male to
female sex ratios at birth ranging from 114.58/100 in the city
of Beijing to an astonishing 138.01/100 in Jiangxi
Province.\198\
With some exceptions, the Chinese government expects its
citizens to comply with China's ``one-child'' policy, and for
those who do not, the new law imposes severe, albeit non-
criminal, economic penalties. These individuals are subject to
a social compensation fee (shehui fuyang fei) determined by
Chinese authorities based on the average annual income for that
region and details regarding their violation of the law.\199\
The ``fees'' vary widely, ranging from two to eight times the
average annual income for a particular region, a penalty so
severe that expectant mothers ``can sometimes be left with
little choice but to undergo abortion or sterilization.'' \200\
The Chinese government does not consider ``social compensation
fees'' to be coercive, and the National Population and Family
Planning Commission of China professes that it is ``against
coercion in any form.'' \201\ Bonnie Glick, a member of a U.S.
commission formed to investigate UN Fund for Population
Activities (UNFPA) programs in China, offered a different view.
Glick testified to a Commission roundtable in September 2002
that the new Family Planning Law's fees for ``out of plan''
births amount to coercion and therefore do not conform to
international norms.\202\
Although Chinese family planning practices remain coercive,
China's new Population and Family Planning Law does not
incorporate some of the most troubling features of the
physically coercive,
non-statutory family planning policies it presumes to replace,
which in recent years have included extensive physical coercion
of non-compliant persons and forced abortion and sterilization.
The new law also specifically forbids the use of ultrasound to
assist sex-selective abortions. Finally, the new law includes
penalties for Chinese officials found guilty of corruption or
abuse of power. Article 39 of the new law stipulates that
Chinese officials must not ``infringe on a citizen's personal
rights,'' for example, by forcing women to have abortions.
Jiang Yiman, spokesperson for China's National Population and
Family Planning Commission, stressed in January 2002 that
``those who run foul of [this] stipulation will be prosecuted
to the full extent of the law.'' \203\ The Commission will
closely monitor Chinese efforts to enforce these new
provisions, particularly at the local level, where reports of
overzealous family planning officials continue to surface.
Finally, the Commission notes that China's new Population
and Family Planning Law includes specific provisions relating
to education, prenatal and maternal health care, and women's
rights. Professor Susan Greenhalgh of the University of
California noted at the September 2002 Commission roundtable
that China's total fertility rate has recently dropped to 1.8,
allowing reformers in the State Planning Commission to
introduce ``pro-women'' changes in policy.\204\ Greenhalgh and
Professor Edwin Winckler urged the United States to ``identify
reform factions within China and support [them] . . . both
within the state and [in] NGOs who are operating outside the
state.'' \205\ Only time and experience will indicate whether
changes in law in the population and family planning area
represent an effective commitment to limit the arbitrary
exercise of state power. The Commission is obligated to follow
closely efforts and developments in this profoundly sensitive
area.
HIV/AIDS, SARS, and Public Health in China
The scale and nature of the emerging HIV/AIDS epidemic in
China has been a particular concern of the Commission over the
past year.\206\ The most significant concerns include the speed
of transmission of the disease among the populations of
intravenous (IV) drug users, the relatively weak response from
the central government, and the likelihood that the disease may
eventually be a substantial drag on economic growth.\207\ The
Chinese government is taking considerable steps to confront
HIV/AIDS, but it must overcome contradictory policies,
underfunded programs, rivalry between national and local
institutions, social prejudice, and a continued lack of public
awareness, education, and prevention before it can avert an
HIV/AIDS catastrophe.
With respect to the U.S. policy response, the Commission
heard repeated advice from U.S. experts that the President and
the Congress should continue to raise HIV/AIDS issues with the
highest levels of the Chinese leadership, citing the epidemic
as an international concern that cannot be solved without
action from the top.\208\
China's reaction to HIV/AIDS has been similar to early
reactions elsewhere: shame and denial, stigmatization of the
victims of the disease, and an impulse to enact punitive laws
and regulations that drive patients into hiding. Official
Chinese government estimates show that 1 million people were
living with HIV in China by the middle of 2002,\209\ while the
United Nations estimates that up to 1.5 million people are
currently infected. The United Nations and others predict that
China is at risk of an HIV/AIDS epidemic that could reach a
scale of 10 million to 20 million infected Chinese citizens by
the year 2010.\210\ In recent years, the Chinese government has
slowly been coming to terms with the rapid rise of HIV/AIDS
throughout China after a prolonged period of denial.
Nevertheless, China's health care system is ill-prepared to
fully confront what the United Nations Theme Group on HIV/AIDS
in China considers to be a situation ``on the verge of a
catastrophe that could result in unimaginable human suffering,
economic loss, and social devastation.'' \211\
In 2001, the Chinese government began recognizing the
emerging crisis and initiated national-level programs to
address the epidemic. A 5-year AIDS action plan, announced in
mid-2001, and negotiations with pharmaceutical companies for
affordable retroviral treatment, marked a growing awareness and
initial commitment to confront HIV/AIDS. Another positive step
toward accepting the country's HIV/AIDS challenge came in
December 2001 when Zhang Wenkang, then the health minister,
acknowledged that the practice of blood plasma collection in
the late 1980s and early 1990s contributed to the spread of HIV
to 23 of China's 31 provinces, centrally administered municipalities,
and autonomous regions.
In April 2003, the Chinese government began providing free AIDS
drugs to thousands of HIV patients in Henan, Hubei, Hunan,
Anhui, and Sichuan Provinces who contracted the virus after
selling their blood as part of China's practice of blood plasma
collection. Government programs are also treating patients in
other provinces, and Chinese and foreign observers expect the
program to expand.
In July 2003, Chinese Vice-Premier Wu Yi, who became the
Minister of Health after Zhang Wenkang was dismissed over the
SARS debacle, announced continued cooperation between China's
Ministry of Health and the United Nations Development Program
to ``reinforce the nation's fight against HIV/AIDS and other
public health problems.'' \212\ After a trip to China in
January 2003 to examine China's approach to HIV/AIDS, a U.S.
think tank's HIV/AIDS delegation found that the Chinese
government is finally making progress on this issue:
The Chinese approach to HIV/AIDS is moving in the
right direction, albeit slowly. The Chinese Ministry of
Health recognizes the enormity and complexity of the
threat and is leading a serious effort to preempt it,
through increased funding, improved intra-governmental
coordination, expanded pilot training programs,
improved preventative education and awareness, and an
enlarged dialogue with the international community on
new partnerships.\213\
Despite China's recent progress in fighting HIV/AIDS,
authorities have made numerous missteps, particularly at the
local level. Corrupt and inept practices, prejudices, and lack
of understanding have made a bad situation even worse,
demonstrating that necessary policy-level improvements have yet
to be realized on the ground. While the new national policies
on fighting HIV/AIDS that the Ministry of Health has been
promoting signify positive movement, local authorities appear
to be less progressive in attitude and incapable of
implementing new measures.
In testimony at a Commission roundtable in September 2002,
two U.S. scholars emphasized that local inaction and
stonewalling by provincial authorities, as well as lack of
cooperation or enthusiasm from the security apparatus,
complicate the ability of the Ministry of Health and others to
address the HIV/AIDS problem.\214\
An incident in Henan Province illustrates the difference in
attitudes between national and local authorities. On June 22,
2003, police officers and local thugs raided Xiongqiao village,
an ``AIDS village'' in Henan where several hundred residents
contracted HIV due to the unsanitary blood collection practices
of the late 1980s and early 1990s. The law enforcement squads
smashed property, assaulted residents, and arrested 13 farmers.
Farmers from the village had appealed to local officials to
receive previously promised government assistance for AIDS
patients.\215\ Approximately 700 of the 3,000 residents in
Xiongqiao have been diagnosed as HIV positive, with 400 of them
living with full-blown AIDS. Some residents and other observers
believe the raid was an example of local authorities
persecuting HIV/AIDS sufferers using repressive measures when
victims seek access to promised treatment, aid, or care. A U.S.
NGO offered the view that police in Henan Province, where many
``AIDS villages'' exist because it is the center of the blood
collection scandal in which local authorities were complicit,
are increasing their use of arbitrary arrests and violence
against HIV-positive protestors. ``Henan authorities seem to
want to sweep their role in the AIDS epidemic under the rug by
silencing protestors'' who are seeking access to treatment and
care of HIV/AIDS patients, and who are frustrated with the
misappropriation of state AIDS funding.\216\
Other setbacks include problems surfacing in the Chinese
government's program offering free AIDS drugs to thousands of
farmers who contracted HIV after selling blood.\217\ Although
the program, which was launched in April 2003, significantly
advances China's fight against HIV/AIDS, it also lacks
sufficient numbers of qualified doctors to properly administer
the drugs and help the patients maintain lifelong treatment.
Qualified doctors are especially necessary to help the patients
endure the strong side effects of the drugs, intensified by the
use of older, locally-manufactured drugs. As a result of these
side effects and the dearth of suitable doctors to keep
patients on the approved course of treatment, many patients are
dropping out of the program. These problems highlight the fact
that China is ill-equipped to successfully fight HIV/AIDS on
its own.
Other obstacles hindering more rapid progress in stemming
the epidemic include social prejudice and the continued lack of
awareness, public education, and prevention. Joan Kaufman, a
visiting scholar at Harvard Law School, summed up the
difficulties facing a successful fight against HIV/AIDS in
China in her testimony to a Commission roundtable:
[T]he epidemic is unfolding in China because of a
collection of local public policy failures: fiscal
devolution in the health system and the strained
budgets in poor areas make it very difficult for local
government to pay for the necessary prevention and care
activities; high levels of discrimination and fear-
based laws aimed at protecting the public; a limited
number of civil society organizations that could
actually take up the battle; constraints on media
coverage and information which make it difficult for
people to know about the AIDS epidemic and what has
worked in other countries; and complicity by local
governments and denial.\218\
At a September 2002 Commission roundtable on HIV/AIDS in
China, U.S. experts praised an existing U.S. program grant to
help Chinese agencies implement vaccine development and begin
treatment trials in the 100 counties most affected by HIV. They
also advocated more U.S. technical assistance to help local
governments adopt international best practices in coping with
HIV and to build a nation-wide response.\219\
Women's Rights
Discrimination against women remains widespread in Chinese
society, despite longstanding efforts by the Chinese government
and government-affiliated organizations, most notably the All-
China Women's Federation (ACWF), to identify and raise
awareness of the problem. China's existing laws, if enforced,
could stem much of the abuse. In other areas, such as sexual
harassment, no laws exist. While progressive in scope, the 1992
Law on the Protection of the Rights and Interests of Women does
not give women the legal tools they need to protect the rights
specified. Efforts are currently underway in China to amend the
law to enable women to sue to enforce their rights under it, as
well as to add new protections against domestic violence and
sexual harassment. Forced marriage and trafficking of women and
girls remain serious problems in China.
The Commission notes that the Chinese government has been
more vigorous in publicizing and condemning abuse against women
than other areas of human rights concern. The Chinese
government has also made significant progress in building the
progressive legal framework necessary to combat these abuses
and prohibit discrimination against women in employment,
property rights, inheritance, and divorce.\220\ However, equal
access to justice and the full implementation of China's laws
and regulations protecting women's rights have been slow to
develop. ``It's a long way to go for Chinese women to realize
equality de facto from equality in law,'' said Professor Wu
Changzhen of the China University of Politics and Law in March
2001.\221\
Article 48 of the Chinese Constitution states that ``Women
in the People's Republic of China enjoy equal rights with men
in all spheres of life.'' Despite this guarantee of equality,
the transition from a planned to a market economy in China has
resulted in
particular hardships for women. Peng Peiyun, Vice Chair of the
National People's Congress Standing Committee and ACWF
President, noted in March 2003 that in China ``it is hard for
women to find jobs; it is hard for women to find jobs after
having been laid off; it is difficult for female students to
find jobs; labor protection measures for women employees are
weak in many enterprises; procreation insurance for female
employees is inadequate; and women's participation in the
management of state and society affairs is still at a low
level.'' \222\
China's economic reforms have had contradictory influences
on the social status of women, offering both ``greater freedom
and mobility'' and ``greater threats . . . at home and in the
workplace,'' \223\ according to testimony to the Commission by
Professor Margaret Woo of the Northeastern University of School
of Law. Although the Chinese economic system offers few
assurances to any worker, women face the most jeopardy. Often
the first to be fired and the last to be hired, women face
continual setbacks in employment and grave challenges in a
society marked by the ``increased commodification of women as
`beauty objects,' '' according to Woo.\224\
One result has been a surge in sexual harassment cases
being filed in court, even though China has no specific law on
sexual harassment. Legislators in the National People's
Congress are deadlocked over the legal definition of sexual
harassment and disagree on whether legal protections against
sexual harassment should even be included in China's first
civil code, which is now being drafted. The Chinese term for
sexual harassment, xing saorao, is relatively new, reflecting
the fact that this traditionally taboo subject has only
recently entered the public consciousness. Despite the
increased openness, most Chinese victims still choose to remain
silent regarding sexual harassment because the chances for
legal remedy remain slim. Few sexual harassment suits have ever
led to trial in China. ``Most such cases are rejected by the
courts because China lacks a law against sexual harassment,''
\225\ according to Professor Ding Juan of the ACWF Women's
Research Institute.
It is equally difficult for women facing violence in the
home to institute civil action. Rangita de Silva of the
Spangenberg Group, a U.S. NGO, testified to a Commission
roundtable in February 2003 that domestic violence in China
``is not broadly defined to cover threats of violence to the
woman and/or her family members, psychological damage, sexual
abuse and rape within marriage. Also, the question arises of
whether a claim for compensation can be made during the
existence of marriage,'' according to de Silva.\226\ Chinese
statistics indicate that upward of 30 percent of Chinese
households face domestic violence,\227\ with 90 percent of the
victims being women,\228\ figures that likely underestimate the
severity of the problem as most cases in China go
unreported.\229\
Although the Chinese government has publicly recognized
domestic violence as a serious problem and taken limited
measures to tackle it, including amending its Marriage Law in
2001 to include provisions on spousal violence, Chinese women
still face significant hurdles in seeking justice or protection
as victims. Women can hold their abusers liable under China's
Criminal Law but must prove that the crime was particularly
``evil'' and the abuse was ``continued, regular, and
consistent.'' \230\ In addition, ``Public Security Bureaus
hesitate to intervene in family disputes'' \231\ and resources
to help battered women, including shelters and legal aid, are
scarce in urban areas and largely non-existent in rural areas.
The commercialization of sex has grown rapidly in China
following the economic dislocation driven by market reforms and
a general relaxation in social mores, leaving thousands of
Chinese women and girls vulnerable to disease and abuse. China
has not taken the necessary steps to increase HIV/AIDS
awareness among sex workers. Such education would both protect
their health and stem the looming health crisis inherent in an
increasingly mobile labor force and a rapidly expanding sex
industry. Many prostitutes in China believe HIV/AIDS is a
``foreign phenomenon . . . and won't affect them,'' according
to Chen Xinxin, a sociologist and former ACWF researcher.\232\
The harsh implementation of China's one-child policy over
the last two decades has imposed high costs on Chinese women.
As documented in the 2000 census, a cultural preference for
sons, and the lack of other guarantees of economic security for
women, have resulted in distorted male/female birth ratios in
many areas.\233\ Birth ratios of 138 boys to 100 girls in rural
provinces like Jiangxi and 115 boys to 100 girls even in urban
areas like Chongqing prove the prevalence of either sex-based
abortion or infanticide. Some of the imbalance in these ratios
may reflect the growth of a population of ``black,'' or
unregistered female babies, invisible to the state and
ineligible for schooling and other state benefits. Most of the
distortion, however, reflects a real reduction in the number of
girls surviving birth and infancy.
The scarcity of women resulting from these practices has
led to a number of serious social problems, including
abandonment of infants, forced marriage, and trafficking of
women and girls. An illicit trade in baby girls as future
servants or brides is widespread in China, despite efforts by
Chinese authorities to stem the activity. The Chinese Ministry
of Justice launched a 3-month campaign against the illegal
trade in 2000, resulting in the rescue of some 10,000 girls,
indicating the scope of this problem. Continuing reports of
such activity in the Chinese press suggest little progress has
been made in curbing the practice. According to Song Liya,
editor of China Women's News, China's one-child policy has
prompted ``some parents to acquire future brides for their sons
. . . [and babies] are cheaper than buying a teenage bride.''
\234\ Despite government efforts to crack down on the inland
trafficking of Chinese women, the illicit trade continues, with
the sale of women in rural areas as brides, and in urban areas
as prostitutes, exceeding official efforts to stop the
practice. In addition, reports are common of sexual slavery and
trafficking of North Korean refugees in China's northeast
border provinces.\235\
China's Environmental Crisis
The degradation of China's environment presents Chinese
policymakers with a host of political, social, and economic
challenges that not only affect China but also have an impact
on the environment of its neighbors. As Elizabeth Economy noted
in testimony before the Commission in January 2003, China faces
daunting environmental problems.\236\ Two-thirds of Chinese
cities tested in 2000 failed to meet World Health Organization
pollution standards. Hundreds of millions of Chinese drink
contaminated water. Deforestation and overgrazing have led to
the rapid loss of arable land, flooding of increasing severity
and frequency, and devastating sandstorms in northeast China.
Analysts estimate that during the 1990s, 20 to 30 million
people were displaced by environmental degradation. These and
other environmental problems have created a public health
crisis, sparked social unrest, and imposed huge economic costs.
According to estimates, China may lose as much as 8 percent of
its GDP to environmental damage.\237\
In recent years, China's leaders have begun to recognize
the enormous social and economic costs of the country's
environmental problems. The Chinese government has reorganized
state institutions responsible for environmental management,
passed more than 25 laws and 100 administrative regulations
related to environmental protection, and attempted to
strengthen implementation and enforcement of environmental
law.\238\ It has opened the door to limited grassroots activism
by environmental NGOs and encouraged media reporting on the
environment.\239\ It has also engaged the international
community, working with such organizations as the World Bank,
the Asian Development Bank, the American Bar Association, and
foreign NGOs to improve environmental conditions on the ground
and enhance environmental governance.\240\
Despite these efforts, the Chinese government's
environmental management remains weak. China currently spends
only 1.3 percent of GDP on environmental protection, a figure
that most analysts agree is too low to prevent further
deterioration, much less improve environmental conditions.\241\
Implementation of environmental laws and regulations is often
poor due to vague legal drafting and lack of consistency,
deficiencies in administrative coordination, lack of trained
personnel, and local intransigence.\242\ These and other
obstacles will continue to hinder Chinese efforts to cope with
the country's environmental challenges.
III(f) Freedom of Residence and Travel
FINDINGS
Recent policy changes in China indicate
progress toward eroding the restrictive residence
registration (hukou) system, allowing rural migrants in
urban areas improved legal status.
Policy changes made at the central government
level often are not implemented adequately at the local
level, and ingrained discriminatory attitudes and
practices toward migrants impede actual reform.
The Chinese government does not implement its
obligations under the Geneva Convention\243\ toward
North Korean refugees, instead repatriating many of
them to North Korea without granting them their rights
under international law.
China's stark urban-rural divide and internal migration
problems are rooted in the country's residence registration
(hukou) system. As the country continues on its path of rapid
modernization and confronts the already wide and growing
economic gap between urban and rural residents, the hukou
system is responsible for, or exacerbates, some of the social
and economic problems that have developed over the last five
decades. A succession of policy reforms announced since the
beginning of 2003, abolishing or amending previously
restrictive and discriminatory regulations related to hukou and
migrant issues, have been positive steps toward dismantling a
half-century old system that has hindered Chinese citizens'
freedom to change residence and employment. However, whether
these changes will actually improve the lives of millions of
migrants across China depends on whether and how local
authorities implement these new policies and recognize
migrants' rights.
China's central government implemented the hukou system
during the famines of the 1950s to differentiate food-growing
farmers from urbanites who needed grain rations. This system
divided Chinese society into urban and rural classes,
permanently attaching citizens to a specific place of
residence. Officials administering the system issue
identification booklets, also called hukou, to each citizen,
identifying him or her as a rural or urban resident. Every
urban administrative unit issues its own hukou, which affords
hukou holders of that urban area full access to such social
services as health care, education, and subsidized housing.
This system creates unyielding hierarchical divisions in
society, as hukou status is inherited, and provides urban hukou
holders with privileges unavailable to rural residents. Through
the 1970s, the system became so rigid that traveling within the
country was extremely difficult, and ``peasants could be
arrested just for entering cities.'' \244\
In the 1980s and 1990s, most urban areas relaxed hukou
restrictions with the beginning of economic reforms. The
dismantling of the collective farming system, food rationing,
and other structures that supported the hukou system made it
necessary to implement more flexible rural-urban migration
policies. The combination of economic reforms and easing of
travel barriers led to an influx of rural migrants into urban
areas, and to this day urban areas
continue to see a constant flow of rural migrants looking for
opportunities for themselves and their families. In November
2001, China Information Daily reported that from 1982 to 2000,
more than 200 million rural Chinese migrated to urban areas,
with more than 100 million of them arriving between 1995 and
2000.\245\ Of the total number of rural-to-urban migrants over
the last couple of decades, approximately 100 million resided
illegally in urban areas without temporary residence permits or
urban hukou. Some predict that the total number of rural
migrants permanently moving to urban areas will increase by an
additional 100 to 180 million people by 2010.\246\
Chinese Communist Party Central Committee Document No. 11,
issued in November 2000, outlines China's urbanization strategy
for the Tenth 5-Year Plan from 2001 to 2005. The document
provides a framework for basic hukou reform, allowing an
individual and his or her immediate family members to obtain an
urban hukou if he or she has stable work and a fixed residence,
usually for more than a year, in an urban area. In addition,
some urban areas that implement hukou reform also tend to offer
permanent residence to migrants if they have investments or
property in the city, or if they have graduate degrees. In
March 2001, the State Council issued Circular No. 6, which
instructed all cities having populations less than 100,000 to
grant a hukou to residents with fixed jobs and homes beginning
in October 2001.
Implementation and interpretation of such policies vary
from locality to locality, however, and the ease with which
rural migrants can obtain an urban hukou differs greatly from
one city to the next. Thus, rural migrants must overcome
significant hurdles to obtain an urban hukou in cities where
they find employment. Without an urban hukou, a migrant
generally does not have access to basic services such as
education and health care. Children of migrant workers without
a hukou who live in urban areas with their parents cannot
themselves get a hukou, and thus are unable to enroll in
school. This obstacle to receiving an education violates
Article 46 of the Chinese Constitution, which ensures Chinese
citizens the right to receive education. Despite relaxations of
the system and various reforms made in some urban areas, ``the
hukou system continues to impose differential opportunities
based on inherited status, and is one of the key factors that
exacerbates the growing inequality maintained by the deep
rural-urban divide.'' \247\
Rural migrants to urban areas who lack an urban hukou
amount to second-class citizens in the cities. Such migrants
frequently are at the mercy of local authorities. Migrants face
prejudice, discrimination, and exploitation by urban residents,
employers, and officials, and have little legal recourse to
fight such abuses. Migrants often only have access to the most
menial, dangerous, and lowest paying jobs. Some of the
prejudice is rooted in social and official attitudes, since
``migrants have been perceived as rootless people who, free of
communal or governmental constraints, embody potential societal
chaos (luan).'' \248\ Furthermore, Hein Mallee asserts in an
essay on migration and hukou in China, ``From the state's point
of view, people without, or far removed from, their
organization or village are anonymous and thus unaccountable,
untraceable, [and] hard to control.'' \249\
While migrants can move fairly freely from rural to urban
areas in search of opportunities, they lead a tenuous existence
when they lack a hukou or work permit for the city in which
they reside and work. Until June 18, 2003, a regulation
entitled ``Measures for the Custody and Repatriation of Vagrant
Beggars in Cities'' allowed police to detain at will and
without justification anyone who did not have an identification
card, residence card, or work permit [see Section III(a)]. This
regulation led to countless detentions and numerous detainees'
deaths.
In response to public outrage over the death in custody of
Sun Zhigang [see Section III(a)], the State Council abolished
the custody and repatriation regulation in June 2003 and issued
a new regulation to provide assistance to migrants and the
homeless in urban areas, effective August 1, 2003. While this
is a positive step in breaking the hukou barriers for migrants
and relieving their precarious legal status in urban areas, the
new regulation's success in upholding migrants' rights will
depend upon implementation at the local level.
Since the beginning of 2003, a number of other policy
changes have been made that promise better prospects and less
hardship for rural migrants seeking urban hukou. On January 5,
the State Council issued a directive proclaiming that rural
migrants have the legal right to work in cities, forbidding
discriminatory policies toward migrants, and ordering police to
provide urban hukou to any migrant who finds a job in that
city.\250\ This policy change indicates progress toward
eliminating the abuses that rural migrants suffer at the hands
of local authorities and employers. It is unclear whether these
changes will take hold at the local level, considering ``the
fact that control over migration is no longer in the hands of
the central government, but in those of the local
municipalities.'' \251\ The ingrained prejudices and
discriminatory and abusive practices toward rural migrants will
take time to shed, though migrants may finally begin to have
the law on their side.
Even as it moves to diminish internal controls on travel
and choice of residence for Chinese citizens, the Chinese
government continues to forcibly repatriate North Korean
migrants who have sought refuge from starvation and
repression.\252\ Although China is honoring a treaty obligation
with the Democratic People's Republic of Korea (DPRK), these
repatriations contravene its obligations as a signatory of the
1951 Geneva Convention Relating to the Status of Refugees. The
Convention forbids a signatory from expelling or returning a
refugee to a place where his or her life or freedom would be
threatened, and requires signatories to permit refugees to seek
resettlement in third countries, normally under the auspices of
the UN High Commissioner for Refugees (UNHCR).
IV. Maintaining Lists of Victims of Human Rights Abuses
Political Prisoner Database
The Commission's mandate includes maintaining information
about victims of human rights abuses in China. To address this
statutory requirement, and to facilitate the reporting,
tracking, and analysis of information about political prisoners
in China, the Commission is developing a political prisoner
database that will provide information to Members of Congress,
Administration officials, and the general public.
During 2003, the Commission made progress toward developing
this system. During the coming year, the Commission staff
expects to develop software, test it, commence populating the
database with information about current prisoners, and make
information from the system available to the general public.
Information about persons imprisoned in China for exercising
their internationally recognized human rights will be
searchable in a variety of ways intended to accommodate diverse
interests. The system will provide persons with Internet access
the opportunity to conduct a query and receive a response.
Areas available for query will include issue focus (e.g.,
religious freedom, labor rights, ethnic groups), province, time
period, current status of detention, and legal process (e.g.,
judicial or administrative).
While the database is in development, the Commission will
continue to monitor both key systemic issues underlying
political imprisonment and the cases of individual prisoners,
and will take measures on their behalf when appropriate.
V. Development of Rule of Law and Civil Society
FINDINGS
China's civil society is growing, spurred by
an increasing number of non-governmental organizations
(NGOs) operating throughout the country. These NGOs,
however, face an unfriendly regulatory environment,
inadequate funding, and lack of capacity in
organizational management, program development, and
evaluation.
China's legislative process is gradually
becoming more transparent and participatory,
particularly at the provincial and local levels.
However, reforms have been uneven and citizens most
often lack any real power to effect change.
China's compliance with WTO transparency
requirements has improved overall, albeit slowly and
with significant problems in politically sensitive
sectors such as automobiles, agriculture, and
telecommunications and other services. The Chinese
government's focus on these commitments has contributed
to growing public expectations of openness in the
legislative and regulatory process.
China's judiciary continues to suffer from a
host of complex and interrelated problems, including a
shortage of qualified judges, pervasive corruption, and
significant limits on judicial independence.
The Chinese government has made progress in
its effort to improve the capacity, efficiency, and
competence of its judiciary, is taking steps to combat
corruption, and is discussing fundamental structural
reform of the courts that could enhance judicial
independence.
Positive reform of China's judicial
institutions will continue but progress is likely to be
incremental due to the breadth and complexity of
problems, limited resources, tensions between judicial
independence and judicial accountability, and limited
concepts of judicial independence.
Legal restraints on the arbitrary exercise of
government power remain weak in practice, and the
development of constitutional enforcement mechanisms is
likely to be incremental.
For much of 2003, Chinese officials, scholars,
and the public at large engaged in a spirited public
discussion of constitutionalism and mechanisms of
constitutional enforcement. Although meaningful public
space was opened for a discussion about restraints on
government power during this time, the government
placed restrictions on this discussion in August 2003.
Chinese citizens are using existing legal
mechanisms to challenge state action in increasing
numbers and, in some areas, are showing a greater
ability to challenge state power.
Introduction
As noted in the Commission's 2002 Annual Report, the
principal structural elements of a rule of law system include
meaningful limits on the arbitrary exercise of state power,
predictable and equal application of the law, transparency in
the lawmaking process, and an independent judiciary. These
structural elements remain weak in China. Flaws in the system
of laws persist, and legal restraints on government power are
limited. Citizens lack access to uncensored information and
concrete mechanisms to enforce rights provided to them by the
Chinese Constitution. Public participation in the lawmaking
process and the activities of nongovernmental organizations is
severely limited. Senior leaders remain unwilling to subject
themselves to meaningful checks on their power, and corruption
with impunity of high-ranking Communist Party cadres and Party
interference in the work of the courts continue to be problems.
The Commission notes that China has made progress in building a
legal infrastructure and has taken limited steps to provide
checks on state actors and improve transparency. However, the
Chinese state is still far from creating a legal and political
system that is governed by the rule of law.
V(a) Nongovernmental Organizations and the Development of Civil Society
Civil society connotes ``associational space between the
state and private citizens'' \253\ where individuals can
``participate voluntarily in public or community affairs, with
some degree of independence from the Party/state--and they may
simply be loose associations of people with a common cause.''
\254\ Since the early 1980s, the number, size, and influence of
NGOs in China have increased dramatically, representing ``a key
step in the evolution of a civil society in China.'' \255\
Although the growth of civil society suggests more official
tolerance for some measure of civic participation and autonomy,
Chinese government attitudes toward NGOs can change suddenly
and become unreasonably harsh. Yet the overall government
attitude toward NGOs appears more relaxed than in the past,
owing in part to the Chinese government's recognition that it
can no longer meet the vast social and economic needs of a
modernizing nation.
According to Chinese government statistics, at the end of
2001, China had 129,000 ``social organizations'' (shehui
tuanti), which were registered with the Ministry of Civil
Affairs (MOCA), and 82,000 private nonprofit corporations.\256\
Estimates of unregistered NGOs range from 1.4 to 2
million.\257\ Other NGOs, unable or unwilling to register as an
NGO with MOCA, register instead as for-profit commercial
enterprises. NGOs engage in work and activities that span a
wide variety of issues such as the environment, consumer
protection, poverty alleviation, domestic violence, AIDS
advocacy, and trade.\258\ In 2002, the government for the first
time permitted an international NGO--Lions Club International--
to establish chapters in China.
The Chinese government recognizes that NGOs have an
important role in filling some of the service gaps left by the
transition to a market economy and the resulting
decentralization of authority. An example of such recognition
can be found in the government's July 2003 regulations on legal
aid, which emphasize the importance of NGOs in providing legal
services to China's underprivileged.\259\ At the same time,
Chinese authorities can react aggressively to perceived threats
to central authority.\260\ Despite the recent dramatic growth
in NGOs, three substantial challenges face these organizations
in China today: burdensome registration requirements,
inadequate funding, and lack of administrative and program
capacity.\261\
Observers of civil society in China uniformly point to the
onerous regulatory framework governing NGOs as a major
impediment to the growth and development of civil society in
China.\262\ NGOs must register with MOCA and must also renew
their registration annually.\263\ NGOs must also find a
governmental ``sponsor''--an agency or unit that theoretically
is involved in similar work--before they are permitted to
register with MOCA. Some NGOs find this to be an insurmountable
hurdle, and as a result register instead as for-profit
enterprises with the Bureau of Industry and Commerce (and
consequently must pay corporate tax). Other requirements for
registering with MOCA include a minimum of 50 members and a
minimum capital of RMB 30,000 (about $3,600). Moreover, only
one organization of each type may register at each
administrative level (e.g., only one bird-watching association
would be permitted per township).\264\
Regulatory hurdles have led many NGOs to decide not to
register, at least initially. The same regulations have also
given MOCA the tools to close noncompliant NGOs. For example,
in June 2003, MOCA closed 63 NGOs, including the China
Fisherman's Association, the Golden Lotus Study Group, the Cool
and Breezy Painting Society and the Dancing Hall Music
Association. These groups either did not apply to re-register
when required or failed to submit completed forms to renew
their registrations. Government officials also closed down some
organizations because individuals had complained that the
groups had swindled and deceived them.\265\
The annual registration renewal requirement gives MOCA a
useful tool of control. For example, MOCA threatened Friends of
Nature, the first officially recognized environmental NGO in
China, with de-registration if it did not oust Wang Lixiong,
one of its founders and its current secretary.\266\ MOCA deemed
Wang ``dangerous'' because he supported Tenzin Deleg, a Tibetan
lama who was sentenced to death for alleged participation in a
terrorist conspiracy in Sichuan.\267\
A lack of funds for operational and capital expenses
plagues most NGOs. China's tax and donation laws provide little
incentive for donations to NGOs, and an identifiable
philanthropic community or consciousness has yet to arise in
China.\268\ Consequently, most NGOs rely on international
sources for funding. China Development Brief estimates that
China is receiving over $100 million each year in project
funding directly from or channeled through over 500
international NGOs, including foundations and faith-based
charitable groups.\269\ According to the NGO Research Center at
Tsinghua University, 80 to 90 percent of funding for Chinese
NGOs comes from international sources.
Chinese NGOs also lack the requisite capacity to manage
organizations and programs. NGO officials and staff lack
experience, training, and knowledge in organizational
management, human resources, fundraising, public relations, and
methods of accountability and transparency. The American
Chamber of Commerce in China (in conjunction with the China
Development Brief) recently announced an innovative initiative
to address the need for capacity building among Chinese NGOs.
The Chamber asks American companies in China to temporarily
donate highly qualified Chinese technical and managerial staff
as volunteers at Chinese NGOs to advise in areas such as
financial management, accounting, personnel management, and
spreadsheet analysis.\270\
In addition to the restrictive registration requirements
forced on Chinese NGOs, government authorities also limit
permissible activities and subject matter. For example, no
independent domestic NGOs monitor and report on human rights in
China.\271\ Discussion groups focusing on political reform,
particularly if they appear in ``cyber society,'' face
particularly strict scrutiny. The 8- to 10-year sentences
handed down in 2003 to members of an informal discussion group,
which debated issues concerning social and political reform,
provide a stark reminder of the limits on civil society in
China.
Despite the significant challenges facing NGOs in China,
many observers are optimistic about their future. The U.S.
Embassy in Beijing concludes in its report on NGOs: ``We expect
China's growing NGO movement to (gradually) gain in strength,
with Chinese authorities (also gradually) ceding political
space.'' \272\ Zhou Hongling, founder of the Beijing-based New
Citizen Education and Research Center, observed recently that
``[t]he development of civil society is like a rolling stone:
if you nudge if forward, it will be unstoppable.'' \273\
V(b) Legislative Reform and Transparency
The National People's Congress
The Chinese Constitution provides that the National
People's Congress (NPC) is the highest legislative authority,
and therefore in theory the highest organ of government power
in China.\274\ The structure and function of the NPC and its
local branches are defined in the Chinese Constitution and by a
number of subsidiary laws and regulations.\275\ The NPC has the
right to revise the Constitution and create basic laws (jiben
falu).\276\ It consists of delegates elected from lower-level
people's congresses for 5-year terms\277\ and convenes as a
whole in March each year.\278\ In principle, ``[t]he NPC is the
supreme source of law in China and the basic laws (jiben falu)
and other laws (falu) adopted by the full NPC or its Standing
Committee are the highest form of law after the Constitution.''
\279\
In reality, however, the NPC traditionally has been
subservient to the leadership's wishes, and in most respects
has operated as a ``rubber stamp'' legislature. Beginning in
the early 1990s, this role has gradually changed, and the NPC
has begun to exercise more control over the legislative and
policy agenda in accordance with its constitutional
mandate.\280\ This change follows leadership efforts to define
more clearly the scope of the NPC's legislative powers, to
unify the legislative system to prevent conflicts of laws, and
to improve the overall quality of legislation.
In 2000, the NPC enacted the Legislation Law, a statute
intended to standardize China's lawmaking process and define
more clearly the boundaries of legislative power in China.\281\
Under the Legislation Law, only the NPC and, in some cases, its
Standing Committee, can pass legislation on matters relating to
the structure of state organs, the criminal justice system, and
the deprivation of the personal freedom of citizens.\282\
The push to improve the quality of legislation has
generated institutional change within the NPC itself. The
Presidium sits at the top of the NPC's structure, and
ultimately decides whether or not to permit draft laws to be
considered by NPC sessions. This group also decides other
logistical and procedural questions and lays out the general
legislative program for each 5-year period.\283\ The NPC also
has institutionalized the process of creating specialized
committees to focus on specific areas of law. In March 2003,
the NPC announced that it would establish nine specialized
committees for the 10th NPC.\284\ In addition, the NPC now
houses a significantly larger bureaucracy that drafts higher
quality legislation and better supervises both the execution of
NPC laws and the legislative efforts of the local people's
congresses. This bureaucracy also has become more competent and
specialized and has become a significant power center within
the government.
When the NPC is not in session, its Standing Committee
assumes legislative responsibilities until the next time the
entire Congress convenes. The Standing Committee consists of
delegates elected from the NPC and has a similar structure and
virtually identical procedures to the NPC.\285\ The Standing
Committee has more limits on the types of laws it can draft
than the NPC as a whole, but because the Standing Committee
controls the legislative agenda for a longer period each year,
it has produced a larger body of law. Like the NPC as a whole,
the Standing Committee has made efforts to improve the quality
of the legislation it promulgates. In 2003, the Standing
Committee expanded from 155 to 175 members. The 20 new members
serve as full-time delegates (as opposed to many older Standing
Committee members who serve only on a part-time basis) and have
professional backgrounds in subjects such as law and economics.
The Standing Committee also has its own specialized bureaucracy
to assist in drafting and supervising legislation.
Overall, the NPC has taken significant strides toward
technical and professional competence. Although it was once
common for laws to be drafted entirely within the State Council
before being passed over to the NPC for enactment, the NPC has
now begun to exercise more control over its own legislation, as
was the case with respect to the China Contract Law passed in
1999.\286\ Despite these advances, the NPC generally tends to
purposely draft laws broadly, leaving considerable room for
interpretation by those charged with executing and enforcing
them.
The NPC also has heightened its stature by opening the
legislative process to outside experts. The Legislation Law
permits the NPC and its Standing Committee to seek outside
opinions on its legislation. In addition to drawing on the
developing competence of its own staff, the NPC increasingly
relies on the expertise of scholars, private sector lawyers and
other outside experts during the legislative process.
Still, there is little evidence that the public at large
has much exposure to the proceedings of the NPC. While the
Legislation Law contemplates the solicitation of opinions on
draft laws through ``symposiums, debating meetings and public
hearings'' and publication of drafts of ``important legislative
bills,'' \287\ it does not require the NPC to do so. Without
any provisions mandating publication, the NPC has little
incentive to provide increased transparency.\288\
Local People's Congresses
Article 1 of the Organic Law on Local People's Governments
and Congresses specifies that each province, centrally-
administered municipality (Beijing, Chongqing, Shanghai, and
Tianjin), and autonomous region has its local people's congress
(LPC). The Organic Law also provides for local congresses at
the county level and below. Like the NPC at the national level,
LPCs also have risen in prominence and importance in recent
years.\289\ The Chinese Constitution charges local congresses
and governments with legislating on specific matters relating
to the localities and drafting local regulations to implement
certain NPC laws.\290\ Local governments also have the power to
draft regulations or detailed implementation rules similar to
those that a State Council ministry would draft. The
Legislation Law requires that local congresses and governments
have internal procedures similar to those laid out for the NPC
and its Standing Committee for drafting and debating
legislation.\291\
In the past decade, LPCs have been the focal point for much
of the experimentation occurring in China in reforming
legislative processes. This trend is due in part to increasing
popular demand. The Chinese public no longer places complete
trust in government officials or institutions, and increasingly
looks to the law as a tool to limit government powers.\292\ As
a result, the public has shown a growing interest both in
seeing quality legislation produced and in having a role in the
legislative process.\293\ Many local people's congresses now
view public participation and transparency as vehicles to gain
legitimacy for their legislation.\294\
In Shanghai, which is often the center of nascent legal
reform efforts, the Shanghai People's Congress has taken a
number of steps to open up its legislative process. The
Shanghai People's Congress now makes a practice of seeking the
views of the Shanghai Bar
Association when issuing any new laws,\295\ and Chinese lawyers
report that the people's congress is considering financial
support for academics to draft legislation.\296\ Moreover, the
Shanghai People's Congress has been a pioneer in holding open
hearings on legislation.\297\ Using a model for public hearings
based on U.S. practice, the Shanghai People's Congress has been
working to develop its own procedures. This process is
evolving. The Shanghai People's Congress has experimented with
different methods to notify the public about the hearings and
with a variety of formats for the hearings themselves. It also
has sought input and feedback from a number of sources on how
to improve its hearings. Shanghai has seen a growing number of
exchanges with delegations from other LPCs interested in
improving public participation in the drafting process.
Other LPCs also have begun making efforts to improve the
transparency of their legislative processes in the past year.
The Standing Committee of the Yunnan Provincial People's
Congress passed a ``Decision to Openly Solicit Legislative
Items and Draft Laws,'' calling for the public to submit
legislative items and draft laws. This decision was the first
attempt by Yunnan authorities to open the legislative process
to public participation.\298\ According to Na Qi of the Yunnan
Academy of Social Sciences, this experiment may enhance
transparency in legislative activities and provides new means
of measuring public opinion.\299\ The Sichuan People's Congress
has been publicly soliciting proposals since November 2002, and
it included 13 proposals it received through the solicitation
process in the Standing Committee's 2003 Plan on Legislation
Proposals.\300\ In December 2002, the Guiyang Municipal
People's Congress began soliciting legislative proposals as
well as comments from the public on existing legislation.\301\
The Standing Committee of Zhejiang Province has announced a
plan to regularize public participation in its legislative
process by opening all of its meetings to the public.\302\
Other cities and provinces that have begun to collect
suggestions on legislation from citizens include Beijing,
Kunming, Gansu, and Guangdong.
These efforts to improve transparency are limited, however,
to only a small number of geographic areas. Such steps cannot
be characterized as an indication that the legislative process
on the whole has become significantly more democratic. The
Communist Party still exercises control over the lawmaking
process at every level. Representatives in the NPC and the LPCs
have limited accountability, as direct elections only take
place at the very lowest levels, notably for village
representatives to the township local people's congress. Even
at these levels, some have questioned the value of elections.
While some observers argue that the elections familiarize the
Chinese people with the tools of democracy and could lead to a
yearning for greater popular representation at higher levels of
government, critics charge that the election process only
serves to strengthen Communist Party control. Moreover, the
elections that do take place have many deficiencies--there are
no competitive political parties, candidates are not granted
access to the media, and secret ballot booths often are
inadequately administered.\303\
The State Council
China's State Council executes laws and supervises the
government bureaucracy and thus carries out the administrative
functions of the Chinese government.\304\ The Premier heads the
Council and is assisted by the Vice-Premiers and the ministers
and chairmen of the commissions. Subordinate to the State
Council are ministries, commissions, and direct offices, which
constitute the State Council's principal policymaking and
supervisory offices.
The Chinese Constitution directs the State Council to
assure that laws passed by the NPC are promptly and properly
executed. Thus, it serves a primarily administrative function.
The Constitution gives the State Council specific power ``to
adopt administrative measures, enact administrative rules and
regulations, and issue
decisions and orders in accordance with the Constitution and
statutes.'' \305\ Before the Legislation Law was enacted in
2000, a tradition of vaguely drafted laws and deference to the
State Council left it with a wide mandate to regulate.\306\ The
Legislation Law defined the subjects that must be addressed in
the form of ``laws'' and thus are exclusively within the
competence of the NPC. Together with a trend toward more
precise drafting within the NPC, the Legislation Law now
provides more concrete guidance on the State Council's
rulemaking powers.
The State Council maintains a large staff that enacts
detailed regulations and instructions on how to execute the
laws.\307\ Since the early 1980s, this staff has reflected an
overall trend in Chinese government institutions toward greater
professional competence and specialization.\308\ Improving the
quality of its regulations and avoiding conflicts between law
and administrative and local regulations on important issues
have been high priorities.
Through organizational changes, the State Council has
sought to improve efficiency, combat corruption, and advance
market-oriented economic reforms. In its March 2003 reform
plan, the NPC made several important changes to the State
Council that reflect China's interest in developing a ``market
economy with socialist characteristics.'' The merger of a
number of government bodies that administer China's domestic
and foreign trade regimes into a new Ministry of Commerce
(MOFCOM) may prove to be the most significant of these
changes.\309\ MOFCOM may simplify access to China's economy for
foreign businesses and investors through greater centralization
and coordination of regulatory activities. In other potentially
important changes, the NPC created a new commission to
supervise state-owned enterprises,\310\ with a mandate to
supervise state capital, but not to participate in the
management of the specific enterprises. The NPC also created a
new commission to supervise the People's Bank of China,
apparently to coordinate efforts to shore up the shaky state-
owned banking sector--a risky and complex task.\311\
Local Government Pilot Programs
As with local people's congresses, local administrative
agencies are becoming increasingly aware of the importance of
transparency in carrying out the laws governing their
communities. Many local governments are attempting to improve
transparency through
experimental programs that the central government has either
explicitly or tacitly sanctioned. The Shenzhen government's
pilot program to transform local government administration into
a ``tripartite administration system'' has been among the most
publicized of these initiatives.\312\ Experts expect that the
new tripartite system ``will make possible the effective
restraining of power and will make policymaking more democratic
and scientific; it will make the execution of policies more
transparent and impartial, and supervision more effective and
vigorous.'' \313\
Other government reform efforts have resulted in promising
changes, if on a smaller scale. For example, almost all
provinces, autonomous regions, centrally-administered
municipalities, and provincial and regional capitals now have
detailed government Web sites.\314\ More than half of these Web
sites list at least some laws and regulations, although very
few post draft versions of laws and regulations.\315\ Most Web
sites give the public the ability to contact government
officials via email or by submission to an online ``mailbox.''
Some sites also invite the public to ask questions about or
comment on government policies or procedures. In some cases,
the public can view the responses that the government provides
to each submission.
V(c) The Judicial System
Judicial reform is a critical element of China's rule of
law development. At its core, the rule of law requires the
impartial resolution of disputes, consistent and predictable
application of legal rules, and the existence of mechanisms to
protect legal rights and limit the arbitrary exercise of power.
A clean, competent, and independent judiciary is a key
institutional foundation for these rule of law elements.
The Chinese government has made the judiciary a primary
focus of its legal reform effort. In its 5-Year Plan for Court
Reform issued in 1999, China's Supreme People's Court (SPC) set
39 specific goals, including initiatives to improve judicial
efficiency, streamline court organization and address such core
problems as corruption, limited transparency, interference in
judicial decisionmaking, a shortage of qualified judges, and
obstacles to the enforcement of court judgments.\316\ Although
China has made progress in addressing some of these problems,
they continue to be areas of concern.
Authority of Chinese Courts
In China, courts have limited power and authority. As
discussed in Section V(b), the National People's Congress (NPC)
is the highest organ of state power under China's Constitution.
The NPC and its Standing Committee have the ultimate authority
to interpret law and to enforce the Constitution.\317\ As China
is a civil law jurisdiction, courts have no formal power to
make law in the sense that judicial decisions are not binding
precedent. Similarly, courts are not empowered to interpret
administrative regulations--ultimate authority over the
interpretation and application of such rules rest with the
issuing agency.\318\ Even with this limited authority, Chinese
courts are subject to detailed supervision by the people's
congresses and the procuratorate. Court officials typically are
outranked by public security and other law enforcement
officials in the Party hierarchy, limiting their influence over
Communist Party policy related to legal work.\319\
One consequence of the limited power of Chinese courts is
that many court judgments are not enforced. As a July 2003
report by China's official Xinhua News Agency notes, most court
enforcement orders remain unresolved, ``leaving a blemish on
the reputation of the judiciary.'' \320\ The problem is serious
enough that judicial leaders have made improving the
enforcement of judgments a key reform goal.\321\ In the
criminal context, the weak position of the courts in relation
to public security and prosecutors makes it difficult for the
courts to check abuses by these institutions or to resist
interference from law enforcement chiefs in sensitive cases.
Judicial Competence
Lack of professionalism is another pressing issue facing
China's judiciary. Until 1995, when the NPC enacted the Judges
Law, Chinese judges were not required to hold a college degree,
and many judges were recruited from the ranks of retired
military officers, law enforcement personnel, or Party
cadres.\322\ Despite a steady rise in the educational level of
Chinese judges in the 1990s, as of early 2003, only about 40
percent of China's 220,000 judges held a 4-year university
degree, and only about 2 percent held graduate degrees.\323\
Lack of competence is a particular problem in basic level
courts, which employ 80 percent of judicial personnel.\324\
Only 15 percent of judges and assistant judges in these courts
held 4-year university degrees as of 2002.\325\ Without advanced
educational credentials or legal training, these judges often
have difficulty grasping basic legal concepts and adjudicating
cases,\326\ a problem that is intensifying as Chinese law
becomes more specialized and complex. Compounding the problem,
the low salaries of judges and relatively weak authority of the
courts make it difficult for the judiciary to attract qualified
recruits; top law school graduates prefer to enter private
practice, where the work is more lucrative and less
frustrating.\327\ The poor quality of the judiciary, pervasive
corruption, and other problems have led to loss of confidence
in the legal system and strong criticism of the courts by the
NPC, the media, and the public.\328\ In March 2003, the SPC
reported that judicial organs handled more than 42 million
letters and complaints between 1998 and 2002,\329\ and NPC
delegates voted against or abstained on the SPC's 2003 annual
work report in historically large numbers.\330\
In response to these problems, the SPC has identified
professionalization of the judiciary as one of its top reform
goals\331\ and has worked to improve judicial competence. Under
amendments to the Judges Law in 2001 and subsequent SPC
circulars, newly appointed judges must: (1) have an
undergraduate degree in law or a degree in another subject and
some legal knowledge, (2) have 2 to 3 years of legal experience
(depending on the level of court that the judge is working in),
and (3) pass a national unified judicial examination and a
provincial court evaluation.\332\ The new rules require courts
at all levels to certify the qualifications of judges,\333\ and
sitting judges without the requisite qualifications must obtain
new credentials within 5 years or face removal.\334\ The SPC
has also introduced reforms to encourage merit-based
promotion.\335\
In addition to the reforms above, Chinese courts are
engaged in a large-scale program of mandatory training for
judges. The SPC established a National Judicial College in
Beijing in 1997 and issued regulations that require provincial-
level people's courts to establish and carry out judicial
training programs. While the length and quality of training
varies, official Chinese sources report that over 200,000
judges and court personnel have received at least some
additional legal training since the program was launched in
1998.\336\ SPC regulations require local courts to establish
training implementation and evaluation plans and judges to
complete 1 month of continuing legal education every 3
years.\337\ Despite these significant achievements, legal
experts conclude that China is likely to be encumbered by a
poorly trained judiciary for at least
another generation.\338\
Corruption
Chinese courts continue to be plagued by widespread
corruption.\339\ Although comprehensive statistics on
corruption are not available, a steady stream of regulations
and circulars dealing with judicial ethics,\340\ frequent media
reports of judicial malfeasance,\341\ and SPC President Xiao
Yang's continued emphasis on corruption as a major judicial
reform issue indicates that the problem is serious.\342\ In an
effort to control judicial corruption, the SPC has undertaken
annual rectification campaigns\343\ and passed numerous
regulations on judicial ethics and conduct, including standards
for recusal and rules imposing personal liability on judges for
wrongly decided cases.\344\ The NPC has also called for
enhanced supervision of the judiciary by people's congresses
and the procuratorate. However, the problem of judicial
corruption does not appear to be abating. In June 2003, the SPC
issued yet another circular stressing its intent to strictly
enforce existing judicial ethics rules and announced another
round of judicial inspections to last through September
2003.\345\
Quality and Availability of Judicial Decisions
Court judgments in China do not have the same force as
those in common law countries because judicial decisions are
not formally binding precedent. Nevertheless, from the
perspective of judicial transparency and impartiality, the
quality and availability of court judgments is a key rule of
law concern. Until recently, most court decisions in China were
short, formalistic, and often lacked detailed legal reasoning
or references to the law.\346\ In fact, SPC regulations in
effect before 1999 prohibited Chinese courts from citing to
several sources of law that they were required to rely on.\347\
Only a small percentage of judgments were selected for
publication, and then only in heavily edited versions that were
often out of date by the time they were published.\348\
In recent years, the SPC has taken steps to improve the
quality and availability of judicial decisions as a way to
control corruption, root out incompetent judges, and improve
the image of the judiciary. After highlighting the importance
of court judgments in its 5-Year Court Reform Plan, the SPC
passed guidelines requiring statements of legal reasoning in
judicial decisions\349\ and issued regulations on the
publication of judgments.\350\ The publication regulations call
for influential or typical cases to be published in legal and
general circulation papers, encourage courts to publish
ordinary judgments in a timely manner, and highlight the
Internet as an important medium for the publication of
judgments. These reforms have resulted in some positive
changes. The number of legal gazettes and compendia of
published court decisions has increased in recent years.\351\
More importantly, the SPC and many local courts have
established Web sites on which they have posted a growing
number of case decisions.\352\ Although courts and publishers
still heavily edit many decisions, the number of complete
judgments available and the quality of judgments is slowly on
the rise.\353\ Finally, several local courts have begun to
experiment with case precedent, a development that some Chinese
legal scholars believe will enhance impartiality and efficiency
in the judiciary.\354\
Despite these positive trends, courts face significant
obstacles in improving judgments. Many courts in less-developed
or rural areas lack computers and other basic equipment, making
the publication of judgments difficult.\355\ In addition, many
judges lack the training and expertise to draft publishable
decisions with citations to the law and clear legal reasoning.
Perhaps due to this concern, SPC regulations require all
judgments to be submitted to an editorial committee for
approval and specifically prohibit the publication of
``substandard'' judgments.\356\ Given the scale of these
capacity problems, improvement in judicial decisions will
likely be incremental.
Limits on Judicial Independence
China's judiciary continues to be subject to a variety of
internal and external controls that significantly limit its
ability to engage in independent decisionmaking. Several
internal mechanisms within the judiciary itself limit the
independence of individual judges. A panel of judges decides
most cases in China, with one member of the panel presiding at
trial.\357\ Despite recent reforms to enhance the independence
of individual judges and judicial panels, court adjudicative
committees led by court presidents still have the power to
review and approve decisions in complex or sensitive
cases.\358\ Finally, judges in lower courts frequently seek the
opinions of higher courts before making decisions on cases
before them. Some legal reformers in China oppose this
practice, arguing that it undermines the right of appeal.\359\
China experts differ on whether the practice has become more or
less frequent as reforms have progressed in recent years.\360\
Local governments are the most significant source of
external interference in judicial decisionmaking. Local
governments often interfere in judicial decisions in order to
protect local industries or litigants, or, in the case of
administrative lawsuits, to shield themselves from
liability.\361\ Local governments are able to exert influence
on judges because they control local judicial salaries and
court finances and also make judicial appointments.\362\
According to one recent SPC study, over 68 percent of surveyed
judges identified local protectionism as a major cause of
unfairness in judicial decisions.\363\ Judicial authorities in
China speak frequently about the problem of administrative
interference and have identified the spread of local
protectionism as one of the principal problems facing the
courts.\364\
The Communist Party also influences judicial decisions in
both direct and indirect ways. Party groups within the courts
enforce Party discipline\365\ and the Party approves judicial
appointments and personnel decisions.\366\ Judges conscious of
these control mechanisms are conditioned to watch for changes
in Party policy in carrying out their work.\367\ The Party
exercises direct influence in
individual cases through the Political-Legal Committees (PLCs)
at each level of government. PLCs supervise and direct the work
of state legal institutions, including the courts.\368\ PLCs
are typically staffed by court presidents, the heads of law
enforcement agencies, officials of the justice ministry or
bureau, and other legal organs. Although PLCs focus primarily
on ideological matters,\369\ they can influence the outcome of
cases, particularly when the case is sensitive or
important.\370\ Judicial surveys suggest that direct Party
interference is less common than local government interference,
but this distinction is clouded in practice, as most key
government officials are also Party members.\371\
A third significant form of external control is supervision
by people's congresses and the procuratorate. Under the Chinese
Constitution and national law, both the procuratorate and the
people's congresses have the power to supervise the work of
judges and the courts and to call for the reconsideration of
cases.\372\ In the case of the procuratorate, this power
presents particular problems. Because the procuratorate has a
dual role as both prosecutor and
supervisor of the legal process, it has a conflict of interest
in exercising its function of supervising the courts.
Prospects for Enhanced Judicial Independence
Both Communist Party and government leaders in China have
embraced ``judicial independence'' as a key reform goal and
have taken limited steps to enhance the autonomy of China's
judges and courts.\373\ Although important and complex cases
are still subject to adjudication committee review, reforms
have enhanced the power of presiding judges, and panels of
trial judges now have the power to decide many ordinary cases
without interference from court presidents or the adjudicative
committee.\374\ The SPC and NPC also are discussing major
structural reforms to combat the problem of local
administrative interference in the courts. Three principal
reforms under discussion are: (1) establishing a system of
national judicial circuits that transcend administrative
boundaries, which in theory would reduce the influence of local
governments; (2) centralizing control over court finances and
judicial salaries; and (3) transferring control over the
appointment of judges at high-level courts or above to the
central government, and control over appointments at
intermediate-level courts and below to provincial
governments.\375\ Although only in the early stages of
discussion, such reforms could help alleviate the problem of
local protectionism and as a result enhance the autonomy of the
judiciary.
Despite these steps, several factors limit the prospects
for improved judicial independence in the short term. First,
Chinese leaders have a more limited concept of ``judicial
independence'' than that accepted in many Western countries.
When Chinese leaders refer to ``judicial independence,'' they
are generally not referring to the independence of individual
judges, but instead to the autonomy of the courts in relation
to other entities and government institutions.\376\ Moreover,
while the Chinese Constitution provides that the courts are not
subject to interference by administrative organs, social
organizations, or individuals,\377\ judges are expected to
adhere to the leadership of the Party and submit to the
supervision of the people's congresses and the
procuratorate.\378\ Unlike in many Western countries, these
influences are generally not considered improper restraints on
judicial independence.
There is also a tension between judicial accountability and
judicial independence. To deal with corruption and lack of
professional competence in the court system, China's leaders
have strengthened penalties for misconduct and wrongly decided
cases and enhanced internal and external supervision of the
courts.\379\ However, these steps also limit judicial
independence. As China law expert Randall Peerenboom observes,
improvements in judicial independence are likely to be
incremental as China continues to deal with problems of
corruption and competence in the courts.\380\
Finally, limited resources and political realities will
make it difficult for the Chinese government to implement major
structural reform of the court system. Given the large size of
the court system and limited central government resources,
implementation of the more ambitious reform plans, such as
centralizing control over judicial budgets and appointments, is
unlikely in the near term.\381\ Moreover, reforms designed to
increase the authority and stature of the courts will require
constitutional changes and shifts in institutional balances of
power. Law enforcement and administrative organs that would
lose power to the judiciary as a result of such reforms are
likely to resist the changes.\382\ Thus, while the United
States should encourage current reform efforts, it should not
expect drastic improvements in judicial independence in the
near term.
V(d) Commercial Rule of Law and the Impact of the WTO
Increasing awareness of the importance of World Trade
Organization (WTO) compliance has served as the motivation for
a number of reform efforts by national and local government
bodies throughout China. For the most part, however, these
efforts are limited in scope, and it is still too early to
determine whether such efforts will lead to the comprehensive
changes in China's legal system that are required for full WTO
compliance. In the second year since China's accession, many
observers believe there has been some progress in meeting its
commitments. However, outstanding issues--particularly in
sensitive sectors such as automobiles, agriculture, and
telecommunications and other services--are attracting
increasing attention from China's trading partners and threaten
to overshadow any positive achievements.
Transparency Developments
The Chinese government has made some progress in changing
its legal framework and legislative process to bring them into
compliance with its WTO commitments. The National People's
Congress (NPC) has established a WTO group within its working
committee on legal affairs; the group has been funding law
professors to provide legislative drafts.\383\ With advice from
Chinese and foreign scholars, NPC drafters are working on a new
anti-monopoly law, an administrative procedure law, and a Civil
Code that is expected to include provisions regarding the
protection of private property. Bar associations, including the
All-China Lawyers Association, the Beijing Bar Association, and
the Shanghai Bar Association report that their members have
been participating in drafting trade-related measures and
providing suggestions for changes to existing legislation that
is not WTO compliant. More government bodies have made their
laws and regulations available to the public through
publication in gazettes and on Web sites.\384\
NPC-mandated changes to the structure of the State Council
in early 2003 may be a step toward greater transparency. The
integration of the trade functions of MOFTEC, the former State
Economic and Trade Commission, and the former State Development
Planning Commission into a new Ministry of Commerce (MOFCOM)
may provide a more consistent and coherent means of
promulgating trade measures. In addition, trade analysts expect
trade measures to be more accessible to the public, as MOFCOM
will publish a single gazette collecting Chinese trade measures
that were once published in the gazettes of several government
agencies.
Local government officials have cited China's transparency
commitments as justification for launching other types of
reforms.
According to Yu Youjun, the mayor of Shenzhen, ``the motivation
behind the political reform program has been China's accession
to the World Trade Organization in late 2001 and the need to
please multinational investors who increasingly insist upon a
transparent, law-based environment.'' \385\ According to one
Western observer, ``[t]his suggests that economic engagement
with China . . . is actually causing the political changes that
the proponents of engagement have predicted.'' \386\
Additionally, Shanghai recently announced the creation of a
press spokesperson position for the city government, invoking
China's WTO commitment to transparent government as a reason
for the step.\387\
Despite some developments, China's compliance with its WTO
commitments has been uneven and incomplete. U.S. congressional
analysts argue that China's compliance with its WTO obligations
has been ``hampered by resistance to reforms by central and
local government officials seeking to protect or promote
industries under their jurisdictions, government corruption,
and lack of resources devoted by the central government to
ensure that WTO reforms are carried out in a uniform and
consistent manner.'' \388\ Local protectionism may prove to be
the major impediment to WTO-related reforms; central government
concern about local protectionism has led to the promulgation
of regulations on the subject.\389\ While publication of
enacted laws and regulations has become more regular, no
uniform procedure yet exists for making draft legislation
available for comment before implementation. Complaints abound
that a ministry or commission will distribute a draft only to a
select group. Others complain that interested parties often
have no chance to review draft legislation before meeting with
officials to discuss it. Even when government authorities make
draft documents public, some critics say, the drafts are
meaningless because the authorities treat the public ``draft''
that they have circulated as the final version. According to
the U.S. Chamber of Commerce, ``In many cases, this reluctance
seems to be driven by a desire to protect domestic enterprises
from competition or to slow or otherwise restrict market
competition.'' \390\ This view is consistent with the belief of
many analysts that significant transparency problems occur in
politically sensitive sectors such as automobiles, agriculture,
and telecommunications and other services.
Nondiscrimination
China's WTO commitments include the promise of ``national
treatment'' to nationals of WTO partners--treating foreign
individuals and enterprises no worse than domestic individuals
and enterprises with respect to its commercial policies.\391\
Both the U.S. Trade Representative and private sector analysts
charge that certain Chinese government practices contravene these
nondiscrimination obligations. In particular, China's practice
of assessing a higher Value Added Tax (VAT) rate on certain
imported goods than on similar domestically-produced goods has
come under attack. In addition, policies providing VAT rebates
on some goods intended for export rather than domestic
consumption also have been criticized. U.S. and other foreign
representatives of the semiconductor and fertilizer industries,
as well as foreign businesses seeking to sell agricultural
products, have raised VAT-related complaints in the past year.
Moreover, U.S. companies say that China's implementation of its
tariff rate quotas or ``TRQs'' for farm commodities unfairly
favors domestic interests.\392\ U.S. services firms, including
insurance, banking, and telecommunications providers, also
argue that China's high capital requirements, restrictions on
branching, high prudential requirements in service industries,
and other restrictions amount to de facto discrimination
against foreign services providers. Finally, China's
restrictions on foreign investment in biotech industries may
constitute a violation of the commitment to provide national
treatment to foreigners.
Judicial Reform Developments
China's WTO commitments require it to provide prompt and
independent judicial review of trade-related administrative
decisions. Many of the judicial reforms discussed in Section
V(c) are being driven in part by China's effort to comply with
this WTO obligation. The Supreme People's Court has also issued
three judicial interpretations clarifying the procedures,
duties, and standards of courts in handling trade-related
cases.\393\ As noted, however, general improvements related to
judicial independence and competence have been limited, and
further progress is likely to be incremental.
Administrative Licensing Law
In a welcome development driven in part by WTO compliance
considerations, the NPC Standing Committee passed an
Administrative Licensing Law in late August 2003.\394\
V(e) Legal Restraints on Government Power
One core structural element of the rule of law is the
existence of meaningful limits on the arbitrary exercise of
power by state actors, supported by processes and institutions
through which citizens can challenge state action. Restraints
on state power in China traditionally have been weak when they
have existed at all. As China's legal reform process has
progressed, however, Chinese scholars and officials have
discussed the need to establish new mechanisms for
constitutional enforcement. The Chinese government has also
created a limited set of legal mechanisms through which
citizens can challenge state action, such as the Legislation
Law, the Administrative Litigation Law and the State
Compensation Law.
Constitutional Enforcement and Legislative Review
The Chinese Constitution guarantees many of the same rights
and freedoms enjoyed in the United States and other Western
democracies. In practice, however, Chinese citizens have no
real power to enforce these constitutional guarantees. The
Chinese Constitution vests the National People's Congress (NPC)
and its Standing Committee with supreme lawmaking authority and
with the power to interpret law and supervise enforcement of
the Constitution.\395\ However, the NPC and its Standing
Committee have not actively performed the latter two functions,
a deficiency long criticized by Chinese legal scholars.\396\
Although the NPC has delegated some limited powers to interpret
law to the Supreme People's Court (SPC),\397\ historically
Chinese courts have not had the power to apply constitutional
provisions in the absence of concrete implementing legislation
or to strike down legislation that is inconsistent with the
Constitution.\398\ Given such restraints, some observers have
characterized the Chinese Constitution as a national
declaration or aspirational statement analogous to the U.S.
Declaration of Independence, not as a legally enforceable
document.\399\
Although constitutional development has been a subject of
discussion by Chinese legal scholars for many years, several
recent legal reforms and events suggest that China is taking
tentative steps toward the development of more robust
mechanisms of constitutional enforcement. In 1999, the Chinese
Constitution was amended to emphasize the concept of rule
according to law,\400\ a change of significant symbolic
importance that China's leaders have incorporated into
government and Party rhetoric.\401\ Under Article 90 of the
2000 Legislation Law [see Section V(b)], citizens have the
right to petition the NPC Standing Committee for review of
administrative regulations that they believe contradict the
Constitution or national laws.\402\ In 2001, the SPC authorized
a court in Shandong Province to rely on constitutional
provisions guaranteeing the right to education in deciding a
case.\403\ This potentially groundbreaking decision, the first
in which the SPC explicitly authorized a lower court to
directly apply constitutional provisions, has spawned new
theoretical and practical discussion of the judicial
application of the Constitution. According to Commission
sources, several legal aid clinics in China are actively
seeking new constitutional test cases to bring before Chinese
courts.\404\
The past year has witnessed a number of notable
developments related to constitutionalism. In December 2002, Hu
Jintao chose the celebration of the 20th anniversary of the
1982 Chinese Constitution as the occasion for his first major
speech after becoming the new General Secretary of the
Party.\405\ Hu emphasized the need for enhanced mechanisms of
constitutional redress and called the Constitution ``a weapon
to guarantee the protection of citizen rights.'' \406\ In late
2002, Hu directed the new Communist Party Politburo to hold its
first study session on the primacy of the Constitution and
appointed a high-ranking committee under NPC Chairman Wu
Bangguo to study proposals to amend the Chinese
Constitution.\407\ The NPC also accelerated work on a national
Supervision Law, which is expected to provide detailed
provisions on constitutional supervision.\408\
These events have taken place in the context of renewed
study in the NPC, the SPC, and the Party of reforms related to
constitutional supervision and judicial review.\409\ According
to Commission sources, while the NPC Standing Committee will
most likely retain the final power of constitutional review,
the NPC is considering proposals to grant the SPC and lower
courts greater authority to rely on the Constitution in
adjudicating cases.\410\ The creation of a constitutional court
has also been discussed, but most observers conclude that this
reform is unlikely to be adopted in the near term.
Legal reformers and human rights advocates were encouraged
by the State Council's June 2003 decision to repeal China's
custody and repatriation regulations. The State Council action
was prompted in part by legal petitions challenging the
constitutionality of the regulations. Riding a wave of public
outcry over the death of Sun Zhigang and intensive reporting of
the incident in the Chinese media\411\ [see Section III(a)],
three young legal scholars filed a groundbreaking petition with
the NPC Standing Committee under Article 90 of the Legislation
Law, arguing that the administrative regulations conflicted
with two national laws and were therefore
illegal restraints on the personal freedom of Chinese
citizens.\412\ A second group of legal scholars petitioned the
NPC Standing Committee to establish a special commission of
inquiry into the Sun Zhigang case and the implementation of the
regulations.\413\ Although the State Council's decision to
repeal the custody and repatriation regulations pre-empted the
need for the NPC Standing Committee to act on the scholars'
legal challenge, thereby heading off a potentially precedent-
setting annulment of an administrative provision, the decision
was viewed as a significant victory for legal reformers and
citizen empowerment and stimulated further discussion of the
need for constitutional enforcement mechanisms.\414\
In the context of these events, scholars and the media
engaged in a spirited discussion of constitutional issues for
much of 2003. In March, for example, the newspaper Southern
Weekend published a special issue on constitutional government
featuring comments by eight prominent legal scholars.\415\
Similar discussions have been published in many other Chinese
newspapers and Web sites for much of the year.\416\ The Sun
Zhigang case in particular stimulated extensive discourse on
the need for constitutional enforcement mechanisms. The
government curtailed these discussions in August 2003, ordering
the media and academics to refrain from discussing such issues
and harassing academics that had been active in such debates.
[See Section III(d)].
The Administrative Litigation Law and State Compensation Law
Since 1989, China's legislature has passed several laws
that have enhanced the ability of Chinese citizens to mount
legal challenges to state action. Under the 1989 Administrative
Litigation Law (ALL), Chinese citizens and entities have the
right to bring suit in court to challenge administrative acts
that violate their lawful rights and interests.\417\ Under the
ALL, for example, a citizen sentenced to administrative
detention by public security or arbitrarily denied a license by
an administrative agency can challenge such decisions in
court.\418\
In 1994, the NPC passed a related law called the State
Compensation Law (SCL). The SCL provides citizens and entities
with the right to obtain compensation in a limited number of
situations in which they are harmed by the illegal acts of
government officials.\419\ Unlike the ALL, the SCL applies to
both administrative and criminal justice organs. Under the
SCL's ``criminal compensation'' procedures, citizens have the
right to seek compensation from public security, procuratorial,
judicial, and prison management organs for a range of illegal
acts that take place in the course of criminal investigations,
prosecutions, and sentencing.\420\
In practice, litigants face a number of obstacles in making
use of these legal mechanisms. The scope of both the SCL and
ALL is limited. Under the ALL, for example, citizens lack the
power to challenge acts or administrative decisions with
general applicability, such as family planning policies, and
neither law applies to acts of the Communist Party.\421\ Many
citizens either do not understand that they have the right to
challenge administrative actions and seek compensation, or
misinterpret the scope of the laws and file improper claims,
leading to frustration and disillusionment when such claims are
dismissed.\422\ Official resistance also has been a problem. In
many cases, recalcitrant officials have restricted information
about the ALL and SCL, threatened or otherwise mistreated
claimants, or interfered in court decisions under the
laws.\423\ Procedural defects in the case of the SCL criminal
compensation provisions make it easy for law enforcement organs
to obstruct claims. Finally, the threat of official liability
under the SCL has placed added pressure on law enforcement
organs and personnel to secure criminal convictions, a factor
in continued abuses in the criminal process.\424\
Despite such obstacles, the ALL and SCL have had some
positive impact. Both laws have symbolic importance as official
recognition that government officials violate rights and that
citizens should have access to legal mechanisms to challenge
such improper acts.\425\ Citizens also have demonstrated an
increasing willingness to put these legal mechanisms to use.
Between 1989 and 2002, courts handled more than 810,000
administrative litigation cases, with steady growth in the
annual number of cases over this period.\426\ As measured by
the number of cases in which the courts revoke or modify
administrative acts or in which plaintiffs settle with
administrative agencies, citizen success rates have ranged from
35 to 40 percent annually.\427\ Although the annual number of
SCL cases has remained much smaller, it also has grown since
the SCL was enacted in 1994.\428\ According to official
statistics, citizen claimants in SCL cases show comparable
rates of success.\429\ As China law scholar James Feinerman
told the Commission at an April 2003 roundtable, ``There is no
doubt that the changes in the last few years, economic,
political, and legal, have reduced the arbitrariness of the
government . . . .'' \430\
Implications of Developing Legal Restraints on Government Power
Despite the promise of these developments, most observers
are careful not to interpret them as signs that the senior
leaders of the Communist Party will subject themselves to
meaningful checks on their power in the near term. The impact
of many of these developments has been limited. Due in part to
the lack of a clear procedure for review or requirements that
it act on petitions within a legally prescribed time period,
the NPC Standing Committee has been unwilling to formally
exercise its power to review and annul unconstitutional laws or
regulations under the Legislation Law.\431\ Even if Chinese
citizens are provided with more concrete mechanisms through
which to enforce constitutional rights, such rights are still
qualified by other constitutional provisions prescribing their
duties to the state.\432\ While the ALL and SCL have provided
citizens with basic legal mechanisms through which to challenge
arbitrary government action, they are limited in scope, and
citizens face problems such as official resistance and
procedural obstacles in invoking their rights under the laws.
Chinese officials routinely ignore fundamental rights and
freedoms guaranteed to Chinese citizens under the Chinese
Constitution, and criminal justice authorities subject Chinese
citizens to a host of arbitrary actions. Existing legal
mechanisms are not yet strong enough to restrain abuses in
these and other contexts.
On a broader level, when Chinese leaders discuss the need
for constitutional enforcement and legal restraints on the
government, it is unlikely that they have Western democracies
in mind as models of governance.\433\ The Chinese Constitution
affirms the leadership role of the Communist Party,\434\ a
point that continues to be stressed even in progressive
discussions of constitutional reform.\435\ General Secretary
Hu's speech on the Constitution emphasized the leading role of
the Party and the need to maintain national unity and social
stability, two common justifications for continued
authoritarian controls.\436\ The Party controls the lawmaking
process, and the Chinese leadership likely believes that
emphasizing rule according to law, promoting constitutional
enforcement, and enacting statutes such as the ALL and SCL will
help it to control rampant corruption, bolster the Party's
legitimacy, and maintain its hold on power.\437\ Finally, as
noted above, there are limits to the discussion that the
leadership will tolerate, as evidenced by the government's
decision to curtail discussion of constitutional reform in
academic circles and in the media in August 2003.\438\
Nevertheless, the long-term significance of these events
should not be dismissed. As illustrated by the repeal of the
administrative regulations on custody and repatriation, recent
reforms have had limited but practical impact in providing
citizens with checks on government action. More importantly,
they have been crucial symbolic steps that have introduced and
legitimized the concept of legal restraints on the government,
generated a greater sense of empowerment among Chinese
citizens, and established precedents and official space that
reformers can use to justify an increasingly broad range of
future reforms and challenges to government abuses.\439\ This
pattern has characterized China's 25-year legal
reform process and has been illustrated again in the case of
the successful challenge to the custody and repatriation
regulations. Reformers are already stressing that citizens
cannot rest with this victory and must press for further
constitutional and legal reform.\440\ These patterns of change
are likely to continue.
VI. Corporate Social Responsibility
FINDINGS
Working conditions in factories producing many
of the products exported to the United States and
elsewhere from China do not meet international norms
and standards.
Contract factories that are not owned by U.S.
companies produce many of the products that China
exports to the United States. Many factories that sell
nearly all of their production to U.S. consumers
receive only indirect consumer pressure to provide
adequate working conditions for their employees.
Despite the good faith attempts of some U.S.
companies sourcing from China, current efforts by these
companies have not significantly improved working
conditions in Chinese contract factories, and these
companies are beginning to recognize that auditing is
not enough to assure acceptable working conditions.
As globalization has swept the world economy over the past
quarter century, the United States has become the destination
for more manufactured products and agricultural produce from
developing countries such as China. Many Americans have become
concerned about the conditions in which these products are
manufactured, grown, processed, and shipped from abroad.
Consumer groups, labor activists, religious and service
organizations, and individual Americans have reacted with alarm
to reports of the frequently unclean, unsafe, and oppressive
conditions in which foreign workers make the footwear, toys,
apparel, textiles, and other goods available in U.S. retail
stores.\441\ Many of these facilities can be found in China.
Some NGOs accuse U.S. and other foreign businesses
operating in China of focusing exclusively on earning profits
without regard for the promotion of human rights.\442\
Businesses respond by saying that a U.S. corporate presence
represents the best way to promote U.S. values, particularly
those championed by the most responsible U.S. corporate actors:
adherence to the rule of law, transparency, workplace health
and safety, modern environmental standards, and generally to
build democratic values in China.\443\ This debate fits into a
larger policy debate about the role of the business corporation
in modern life, and its responsibilities to the community and
to the world. Few agree on a single definition of ``corporate
social responsibility'' (CSR), however.\444\
The Commission examined a number of these CSR programs and
policies over the past year, particularly to assess whether or
not such programs have a significant impact on working
conditions in China. Commission staff interviewed dozens of
industry, NGO, and trade union officials, as well as scholars
and human rights activists. Commission staff also participated
in a private study group that debated and sought consensus on
recommendations for government action to promote global
CSR.\445\
U.S. Corporate Approaches to CSR
U.S. business firms and multinational corporations based in
the United States have addressed popular concerns about
corporate social responsibility in a variety of ways. Some
firms have adopted their own corporate codes of conduct (see
the discussion below); others have endorsed one or more of a
number of industry-wide or global codes. In recent years,
companies around the world have instituted corporate social
responsibility programs intended to strike a balance between
financial success, relations with host governments, and the
well-being of their surrounding communities. In China, as part
of such programs, some U.S. companies and industrial
associations have established guidelines governing their
practices with respect to working conditions, environmental
protection, community involvement, and other aspects of their
corporate activities.\446\
Some companies apparently equate corporate social
responsibility with philanthropy, highlighting corporate
charitable donation practices or the social service work of
individual executives or employees.\447\ U.S. academic experts
criticize this view, insisting that
corporate social responsibility requires more of a business
corporation than financial or technical support to humanitarian
projects, however laudable such humanitarian support may
be.\448\
U.S. firms that manufacture in China in wholly-owned or
joint-venture facilities generally implement their CSR policies
more effectively than U.S. companies that source manufactures from
factories in China owned by third parties. Virtually all U.S.
companies with their own factories in China have developed
their own standards, practices, and policies that they employ
around the world, and they apply these policies at their
facilities in China. These policies cover such issues as
recruitment, training, motivation and promotion, workplace
health and safety, environmental protection, transparency, and
community development. As their businesses have matured in
China, a number of U.S. companies are sourcing components from
Chinese and third-country manufacturers in China. Most demand
that contractors follow the principal's policies or guidelines
on CSR issues such as workplace conditions, but subcontractors
not supervised directly by the U.S. company may not be
monitored as carefully for compliance. U.S. service industry
firms have been increasing their presence in China over the
past decade, but little information is available about their
CSR practices in China.
In contrast to U.S. companies that own their manufacturing
facilities in China, companies that source in China but do not
own their factories rely on indirect means of code of conduct
implementation to assure that the conditions under which their
products are manufactured meet basic standards. CSR monitoring
and remediation efforts are uneven and frequently short-
lived.\449\ A number of U.S. and international NGOs promoting
monitoring and remediation have made some progress in helping
U.S. companies address these issues in China. But the search
continues for policy tools that would broaden participation in
such efforts, and that can effectively address the problems of
concern to U.S. consumers and activists, particularly
concerning working conditions and workplace health and safety.
Corporate Codes of Conduct and Labor Conditions
In response to consumer pressure to ensure adequate working
conditions in foreign factories, many U.S. companies have
adopted codes of conduct that outline expectations of how
workers at foreign supplier facilities should be treated. Most
codes of conduct require supplier factories to adhere to
International Labor Organization (ILO) core standards and local
law concerning child labor, forced labor, health and safety,
wages and benefits, working hours and overtime compensation,
nondiscrimination, harassment and abuse, and freedom of
association and collective bargaining. Of these broad subject
areas, China presents special difficulties with regard to
freedom of association, since Chinese law does not permit
independent labor unions. Some companies deal with this
contradiction by establishing what one international standard
of social accountability calls ``parallel means'' of
representation.\450\ Parallel means require representative
worker organizations to be established in factories in
countries where free trade unions are restricted. Few companies
have successfully ensured worker representation in the absence
of free trade unions, although factory elections facilitated by
Reebok, Inc., in 2002 indicate that a functional model to allow
worker representation within the limits of Chinese law may yet
emerge.\451\ Not everyone agrees. A senior U.S. labor
organization official told a Commission roundtable in July 2003
that ``[w]ithout empirical evidence that notions like `parallel
means' lead to real freedom of association, it is our view that
companies operating inside China with a code of conduct that
includes freedom of association are in fundamental violation of
their own codes.'' \452\
State Responsibility and Code Enforcement
Since companies first began implementing codes of conduct,
enforcement has been contentious. Many companies fail to
provide any meaningful enforcement of their codes, rendering
them meaningless. Most companies have made at least token
gestures to ensure compliance by conducting code of conduct
factory audits. Some companies supplement an external audit
with internal auditing programs. But for audits to be credible,
independent outside organizations should conduct them. Labor
and industry analysts generally agree that auditing alone is
insufficient to correct code of conduct violations in supplier
factories, and that significant follow-up measures are
required.
Little public information is available about corporate code
of conduct compliance programs. Informal conversations with a
number of companies during 2002 and 2003, however, indicate
general agreement that companies must augment their auditing by
working closely with supplier factories to provide training and
day-to-day encouragement to improve working conditions.
As in many developing countries, poor working conditions in
China represent failure of the state and society to perform
basic functions such as enforcement of existing law. The
director of a major U.S. NGO told a Commission roundtable in
May 2003,
We need to pay attention to what has taken place with
this development. We have concluded that the
corporations bear ultimate responsibility for the
conditions under which their products are manufactured
or assembled. We then expect them to become the
creators of the standards for the factories and the
enforcers of those standards. In other words, we have
handed over the role of the society and its governance-
making and enforcing standards and laws to the
corporations we are attempting to hold accountable. It
is a shift in power, a shift in responsibility and a
shift in accountability.
Many observers believe that companies can have significant
impact on working conditions in China, but they admit that no
individual company is large enough to have decisive impact
nationwide on its own. Multi-company initiatives such as the
Fair Labor Association, the Workers' Rights Consortium, SA8000
and others have yet to produce measurable, wide-spread
improvement. Unless combined with more vigorous and systematic
Chinese government efforts to enforce existing Chinese labor
laws, efforts by U.S. and other foreign corporations seem
likely to have a piecemeal quality that will limit their
overall impact, and may prove unsustainable in an environment
where companies regularly change suppliers.
The Chinese themselves ultimately will have to improve
working conditions, both through government enforcement efforts
and through empowered workers participating in their
workplaces. However, restrictions on the formation of
independent trade unions and the insecurities caused by
temporary resident status for migrant workers prevent workers
from having a say in improving workplace conditions. Labor
activist Han Dongfang told a Commission roundtable in November
2002:
I keep asking the question, ``Are we talking about
monitoring the animal rights or labor rights? '' They
are very different. Animal rights should be for those
animals that cannot help themselves. Human beings can
go and help themselves, so that is one way to look at
this question. Another way, if we are talking about
labor rights, is that we have to assume that the
workers in China and anywhere can help themselves. What
we need to do is link them up and help them a little
bit and push them, and they will be able to take care
of their own problems.\453\
To succeed, code of conduct compliance must be part of a
larger process that empowers Chinese workers to assert their
rights under Chinese law. While some companies have begun to
explore ways to achieve this end, a formula remains elusive.
VII. TIBET
FINDINGS
The Dalai Lama's representatives visited China
in September 2002 and again in May of this year. The
Dalai Lama and his representatives have described the
meetings positively and expressed their commitment to
continue the process. The visits have the potential to
lead eventually to positive developments of long-term
significance.
The Dalai Lama is seeking bona fide autonomy
for ethnic Tibetan areas of China, as guaranteed by the
Chinese Constitution. The Chinese government's
priorities are national unity, stability, and
prosperity. Chinese and Tibetans would both benefit
from an agreement about Tibet's future. As the most
respected and influential Tibetan anywhere, the Dalai
Lama is uniquely positioned to help ensure the survival
and development of Tibetan culture, while contributing
to the stability and prosperity of China.
The overall environment for Tibetan culture
(including language and religion) and human rights
(including the freedoms of religion, speech, and
association) is not improving. The Tibetan language and
religion are in particular jeopardy.
The growth in the Han population of Tibetan
areas is substantial. Many Tibetans believe this influx
is the most serious challenge facing Tibetan culture.
The majority of Tibetans, who live in rural
areas, benefit little from central government
investment in the Tibetan economy. Most of this
investment supports large-scale construction and
government-run enterprises in which Han control is
predominant.
The Dalai Lama seeks to protect and strengthen Tibetan
culture, not to gain independence for Tibet.\454\ Where he
seeks to realize genuine local autonomy and a degree of
consolidation in the administration of Tibetan territory,
China's government and Communist Party have instead applied a
substantial degree of division, and consistently stressed
national integration over local autonomy. Chinese leaders have
characterized the Dalai Lama's approach as ``independence in
disguise,'' \455\ and contend that the Law on Regional National
Autonomy protects Tibetan culture.\456\ The law inverts the
commonly understood concept of autonomy, stating, ``The organs
of self-government of national autonomous areas shall place the
interests of the state as a whole above anything else and make
positive efforts to fulfill the tasks assigned by state organs
at higher levels.'' \457\
The Chinese government has divided ethnic Tibetan
geographic areas into 13 administrative divisions. All are
contiguous, and all are entitled to practice local self-
government.\458\ Tibetans living throughout these areas have
long shared a common culture, religion, written language, and
ethnic identity. The Tibet Autonomous Region (TAR) makes up
about half of the total Tibetan area and is ranked at the
provincial level. Its boundaries approximate the extent of
administration exercised by the Tibetan government in Lhasa
when the People's Republic of China was founded in 1949. The
rest of the Chinese-designated Tibetan autonomous areas are
found today in Qinghai, Gansu, Sichuan, and Yunnan Provinces.
Until 1949 they formed a complex and decentralized
administrative mosaic.
Many Tibetans regard oversight by a single Tibetan capital
as central to their concept of ``Tibet.'' However, no Tibetan
capital has administered the entirety of what is designated by
China today as ``Tibetan'' since the Tibetan empire collapsed
in the 9th century. The Tibetan government-in-exile endorses
the Dalai Lama's quest for genuine autonomy under Chinese
sovereignty. At the same time, it asserts that Tibet is an
``occupied country'' and that ``The Tibetan people, both in and
outside Tibet, look to the [Tibetan government-in-exile] as
their sole and legitimate government.'' \459\
The United States government recognizes the TAR and Tibetan
autonomous prefectures and counties in other provinces to be
part of the People's Republic of China.\460\ The territories
described above are equally Tibetan under China's Constitution
and laws, and are entitled to similar rights under the rubric
of regional national autonomy. Ninety percent\461\ of the
territory that the Tibetan government-in-exile claims as
``Tibet'' has been officially mapped by China as areas of
Tibetan autonomy. Nearly 94 percent\462\ of Tibetans in China
are residents of those autonomous Tibetan areas.
Dialogue between China and the Dalai Lama's Representatives
Two representatives of the Dalai Lama, Special Envoy Lodi
Gyari,\463\ based in Washington, and Envoy Kelsang Gyaltsen,
based in Europe, visited China twice during 2002 and 2003.\464\
The delegations were the first to travel to China in nearly 20
years. The envoys visited Beijing, Shanghai, several Chinese
provinces, the TAR, and an autonomous Tibetan prefecture in
Yunnan Province. They held discussions with central government
and provincial-level officials, including top leaders of the
United Front Work Department (UFWD)\465\ and senior Tibetan
officials in the TAR.\466\
The Special Envoy has characterized these developments in
terms of cautious optimism and emphasized the importance of
international support. Upon his return from the first visit,
Lodi Gyari stated, ``We have made every effort to create the
basis for opening a new chapter in our relationship. We are
fully aware that this task cannot be completed during a single
visit. It will also need continued persistent effort and
support from many sides.'' \467\ After the second visit, he
summed up the challenge, saying, ``Both sides agreed that our
past relationship had many twists and turns and that many areas
of disagreement still exist. The need was felt for more efforts
to overcome the existing problems and bring about mutual
understanding and trust.'' \468\
Tibetan Culture and Human Rights
China imposed no major new campaigns across Tibetan areas
during the past year, but economic development, the education
system, and existing initiatives encouraging Han population
migration continue to pressure Tibetans. Friction remains
between Tibetan aspirations to maintain their distinctive
culture and religion and Chinese policies favoring atheism and
emphasizing the primacy of national identity.
Human rights
Tibetans face systematic restrictions of their basic human
rights, including the freedoms of speech, press, association,
and religion. The state represses peaceful expression that it
considers ``splittist,'' or which is deemed ``detrimental to
the security, honor and interests of the motherland.'' \469\
The Dalai Lama enjoys unrivaled respect as a cultural and religious
leader, but even innocuous expressions of support for him can result
in punishment. According to a March 2003 report by the Tibet
Information Network, approximately 150 Tibetan political prisoners
were serving sentences or awaiting disposition of their cases.\470\
Seventy-five percent are monks and nuns. About 60 political
prisoners, most serving sentences for the now-defunct crime of
counterrevolution, remain in TAR Prison No. 1, also known as
Drapchi, in Lhasa.
In December 2002, a court in Sichuan Province sentenced two
Tibetans to death after a closed trial. Lobsang Dondrub
(Chinese: Luorang Dengzhu) was charged with causing a series of
explosions; Tenzin Deleg (Chinese: A'an Zhaxi), a Buddhist
lama, was accused of conspiracy. A few weeks later, Chinese
authorities executed Lobsang Dondrub despite pledges to senior
U.S. government officials that the Supreme People's Court (SPC)
would undertake a ``lengthy'' judicial review of the sentence.
A Commission staff paper published in February 2003 outlined
the case and highlighted systemic failures in the criminal law
and in the legal process for review and approval of death
sentences.\471\ Tenzin Deleg appealed his conviction and
sentence but may face retrial by the same court that rejected
his appeal and sent Lobsang Dondrub to the executioner. A new
hearing before the SPC would provide the best opportunity for a
full, fair, and just reconsideration of the sentence.
In March 2003 Chinese officials allowed the nun Ngawang
Sangdrol to travel to the United States to seek medical care, a
welcome development which followed her early release from
Drapchi Prison in October 2002. Imprisoned in 1992 at age 14
for peacefully demonstrating, the authorities extended her
sentence three times for further political protests inside the
prison to a total of 21 years, 6 months. After arriving in the
United States, she discussed her experiences with Commission
staff. The descriptions of her actions that police and court
officials detailed during interrogation and sentencing sessions
were, she said, ``accurate.'' She never denied carrying out
acts of protest or dissent, nor did she recant her beliefs
while imprisoned, but even when beaten, tortured, or put into
solitary confinement for prolonged periods, she refused to
accept that she had committed any ``crime.'' Her views are
typical of Tibetan political prisoners, she said.\472\
Many Tibetans find Chinese requirements for obtaining
permission to travel legally to Nepal\473\ inordinately
burdensome and their prospects for approval poor. Tibetans
attempting to cross the Chinese-Nepalese frontier without
documentation have long faced danger and abuse on both sides of
the border. In May 2003, the Chinese government pressured
Nepalese officials in Kathmandu to hand over 18 Tibetans who
had entered Nepal the previous month to Chinese diplomats to be
forcibly repatriated. The U.S. State Department swiftly
condemned the action, which Nepalese authorities carried out
without the status determination required by international
law.\474\ In August the Nepalese government articulated a
policy toward Tibetan asylum seekers that assures ``Nepal will
not forcibly return any asylum seekers from its soil.'' \475\
Ethnicity and economic development
Tibetans living in Tibetan areas, when speaking privately,
cite the changing population mix in Tibetan areas as their
principal concern. They believe that nothing threatens Tibetan
culture more directly than marginalization and minority status
in their own territory. Government authorities deny that there
is a substantial influx of Han and other ethnic groups.
Referring to the 94 percent Tibetan majority reported in the
TAR by the 2000 census, Ragdi, then Chairman of the TAR
People's Congress, said, ``[S]ome people say that with
immigration, the Tibetan population is greatly reduced and
Tibetan culture will be extinguished. There is absolutely no
basis for such talk.'' \476\ In contrast, another senior
official acknowledged the magnitude of undocumented changes,
saying last year that migrant Han already made up half of
Lhasa's population and their number would continue to
rise.\477\
Assessing official population data is difficult because
China's census methods hinder meaningful analysis. Data reflect
only registered permanent residents, who census officials
tabulate as if they were present in their places of registered
residence, irrespective of where they in fact live or
work.\478\ The majority of Chinese in Tibetan areas have not
registered as permanent residents and are not enumerated in
local census statistics. For example, comparing 1990 and 2000
census data shows a mere 2 percent increase in the Han
proportion of the TAR population. Remarkably, official census
statistics show that Han population in Qinghai remained
virtually flat from 1990 to 2000 while other ethnic groups
increased their numbers. The official result is a 4 percent
decrease in the Han proportion of Qinghai's population.\479\
Tibetans speaking privately continue to express concern about
the completion of the Qinghai-Lhasa railway, which stayed on
schedule in 2003 for completion in 2007,\480\ believing the
rail link will accelerate the transformation of the TAR
population. Construction of the railroad is providing its own
boost to Han immigration--last December Vice-Minister of
Railways Sun Yongfu told a news conference that only 700 of the
then-current 25,000 project employees were Tibetan.\481\
Chinese officials point to years of surging economic growth
in Tibetan areas, but unofficial reports show that most Tibetan
incomes, while rising, are trailing regional economic
indicators. Legchog, head of the TAR government, said in
January that the TAR GDP had averaged 10.9 percent annual
growth for the past 5 years.\482\ Observers say that the engine
of growth is central government funding of large-scale
infrastructure construction projects and of the service sector,
which is dominated by government-run workplaces, and not local
production. Unofficial reports show that the gap between urban
and rural incomes has doubled in the past decade, leaving the
majority of Tibetans increasingly disadvantaged.\483\
The Great Western Development policy (Xibu da kaifa), the
ambitious development program announced by President Jiang
Zemin in 1999, will present far-reaching challenges to
Tibetans. An article in a prominent Party journal featured a
senior official declaring, ``Development is the last word.'' He
recognized the social risks, however, and warned, ``We should
correctly handle the relations between reform, development, and
stability.'' \484\ The paper outlined a vision for a
reconfigured demographic landscape, calling for herders and
farmers to be resettled in compact, urbanized communities.\485\
Education and culture
If Tibetans are to adapt successfully to their new
environment, then they must have access to significantly
improved educational resources. If their culture is to survive,
then the Tibetan language must play an important role in their
education. Education in the TAR trails every other province.
Official data report that nearly half the population (46
percent) has ``no schooling.'' \496\ Barely more than 1 percent
has attended junior college or above. Educational prospects for
Tibetans in rural and urban communities differ sharply. Farmers
and herders in the TAR attend primary school at a rate similar
to city dwellers, but urbanites are 25 times more likely to
reach junior college or higher. Some experts have observed that
rural schools are often poorly funded, leading to shortages of
staff and supplies. Fees linked to schooling can discourage or
prevent parents from sending children to class.
In May 2002 the TAR People's Congress enacted regulations
encouraging use of the Tibetan language. The rules also stress
the equal status Chinese language shall have with Tibetan, and
allow for one or both to be used in most official work.\487\
Professor Nicolas Tournadre of the University of Paris 8
informed a Commission roundtable that, while well-intentioned,
``It is likely that the present regulation concerning [use of
the] Tibetan [language] will have no significant impact and
that only a far-reaching reform introducing a real Tibetan-
Chinese bilingualism will be capable of changing the
ecolinguistic situation.'' \488\ At the same event, Professor
David Germano of the University of Virginia summarized a
strategy for supporting Tibetan language:
What is important is not simply an exchange where
Tibetans are taken out of Tibet and brought to the
United States, but investment in Tibet, working with
dedicated professionals in the institutions which
survive our departure and presence . . . I think these
emerging partnerships, if adequately supported, offer
another vision of a better tomorrow, not one in which
Tibetan triumphs over Chinese, but one in which Tibetan
and Chinese can co-exist.
Economic development during the period of ``opening up to
the outside world'' has produced impressive results in certain
respects, but the predicament of the Tibetan people continues
to be a matter of concern to the President and the Congress.
China's Constitution and laws could provide an obvious and
direct avenue toward improved circumstances for Tibetans--but
only if Party and state privilege does not eclipse the
authority of local autonomous governments and the rights of
individual citizens.
VIII. Recent Developments in Hong Kong
The Commission continues to be concerned about developments
in the Hong Kong Special Administrative Region (HKSAR), not
only because of longstanding U.S. interests there but also
because of Hong Kong's role as an example of the benefits of
the rule of law and broad civil liberties.
In this context, the extraordinary events of the spring and
summer of 2003 in Hong Kong deserve special mention. Under
Article 23 of Hong Kong's Basic Law, which serves as the
territory's Constitution, the HKSAR government must adopt
legislation ``on its own'' to prohibit treason, secession,
sedition, subversion against the PRC government, theft of state
secrets, and to prohibit local political groups from
establishing ties with foreign political organizations. The
possibility that legislation under this article might
significantly curtail existing civil liberties in Hong Kong
concerned not only many of Hong Kong's citizens but also
supporters of Hong Kong in the United States and elsewhere.
Many hoped that the HKSAR government would postpone
consideration of legislation until after 2007, when a directly-
elected Chief Executive and Legislative Council could consider
and debate it. When the HKSAR government made it clear that it
intended to legislate earlier, a number of individuals and
groups in Hong Kong urged the government to release the draft
legislation in the form of a ``white bill'' that would permit a
significant period of public discussion before formal
consideration in the Legislative Council.
Instead, the HKSAR government took a different approach,
releasing a consultation paper in September 2002 entitled
``Proposals to Implement Article 23 of the Basic Law'' and
inviting public comment. In the unprecedented consultation
process, Hong Kong government authorities claimed that the
proposed legislation would not ``affect freedom of religion, of
the press, or of expression.'' \489\ However, the consultation
document met with severe popular criticism. In December 2002,
some 60,000 opponents of the proposed legislation staged the
largest political demonstration held since the reversion of
Hong Kong's sovereignty to the PRC in 1997. Opponents noted
that the proposed legislation would define key security
offenses in vague terms that could easily be abused; that the
proposed legislation would go further than the plain language
of Article 23 by allowing the government to ban local
organizations with ties to groups banned in China, rather than
for ties to ``foreign'' organizations; that since PRC national
security legislation criminalizes acts rather than
organizations, the proposed system went beyond what is
permitted under Chinese law;\490\ and that the system
contemplated in the proposed legislation to ban mainland
organizations from operating in Hong Kong did not currently
exist in mainland China.\491\
After the period of consultation closed, the HKSAR
government prepared a compendium of the thousands of comments
it had received on the consultation document. Based on these
comments, officials made some changes to specific ideas
described in the consultation document, but the HKSAR
government then announced plans to submit a bill to the
Legislative Council in June. The announcement touched off
another vigorous popular debate in Hong Kong. As the day
approached for the debate on the bill in the Legislative
Council, hundreds of thousands again took to the streets to
protest. On July 1, 2003, in the words of the embattled Chief
Executive, Tung Chee-hwa: ``[d]espite the sizzling hot weather,
hundreds of thousands of citizens took to the streets to
express their concern over the legislative proposals to
implement Article 23 of the Basic Law, their dissatisfaction
over government policies, and over my governance in
particular.'' \492\
As a result of this public activism, and lacking sufficient
votes in the Legislative Council, the HKSAR government
announced on July 7, 2003, a decision to postpone further
consideration of the Article 23 bill pending further public
consultation. Following that announcement, Hong Kong officials
said that the government would conduct a thorough
constitutional review and listen carefully to public views and
ensure that there would be time for the public to discuss and
be consulted.\493\ They also said that the provision in the
proposed legislation that gives the police the power to search
without a court warrant in emergencies would be removed.\494\
In September 2003, Chief Executive Tung announced that the
government would withdraw the proposed legislation and would
consult widely with the public before submitting a new draft
bill. Chief Executive Tung cited public concerns about the
original bill's details and the need to focus on economic
recovery as reasons for his decision to withdraw the bill. The
HKSAR government has no timetable for preparing a new bill, Mr.
Tung said.
The Commission supports the people of Hong Kong and
appreciates their accomplishment in peacefully exercising their
rights to freedom of speech, the press, and assembly to ensure
that they do not find these same rights circumscribed. At the
same time, the Commission notes that Hong Kong officials made
unprecedented efforts to give the people of Hong Kong access to
information about the proposed Article 23 legislation and the
opportunity to comment freely on it.\495\ The Commission is
encouraged by the apparent plans of the HKSAR government to
review public concerns and engage in a longer, more meaningful
consultation process before again introducing implementing
legislation for Article 23. The Commission believes that what
sets Hong Kong apart from other PRC jurisdictions is its more
progressive tradition on rule of law issues. The rest of the
world expects Hong Kong to be at the forefront of governance
model setting for China, and it is in this context that
backward-stepping precedents appear so troubling.
IX. Appendix: Commission Activities in 2002 and 2003
Hearings
July 24, 2003 Will Religion Flourish Under China's New
Leadership?
Randall Schriver,
Deputy Assistant
Secretary of State for
East Asian and Pacific
Affairs, Department of
State
Felice D. Gaer, Vice
Chair, U.S. Commission
on International
Religious Freedom
Joseph Fewsmith,
Professor and Director
of East Asia
Interdisciplinary
Studies, Boston
University
Charles D. Lovejoy,
Jr., Associate, U.S.
Catholic China Bureau
David B.T. Aikman,
Author, Foreign Affairs
Consultant
Jacqueline M. Armijo-
Hussein, Assistant
Professor, Department
of Religious Studies,
Stanford University
September 24, 2003 Is China Playing By the Rules? Free Trade,
Fair Trade, and WTO
Compliance
Charles Freeman, Deputy
Assistant U.S. Trade
Representative for
China, Office of the
U.S. Trade
Representative
Henry A. Levine, Deputy
Assistant Secretary for
Asia Pacific Policy,
U.S. Department of
Commerce
Gary Martin, President
and CEO, North American
Export Grain
Association
Brad Smith, Managing
Director, International
Affairs, American
Council of Life
Insurers
Daryl Hatano, Vice
President of Public
Policy, Semiconductor
Industry Association
Bill Primosch,
Director, International
Business Policy,
National Association of
Manufacturers
Lawrence J. Lau, Kwoh-
Ting Li Professor of
Economic Development,
Stanford University
Margaret M. Pearson,
Professor of Government
and Politics,
University of Maryland
Yasheng Huang,
Associate Professor,
Sloan School of
Management,
Massachusetts Institute
of Technology
Roundtables
October 21, 2002 China's Children: Adoption, Orphanages, and
Children with
Disabilities
Nancy Robertson,
President and CEO, The
Grace Children's
Foundation
Dana Johnson,
International Adoption
Clinic, University of
Minnesota Hospital
Susan Soon-Keum Cox,
Vice President, Holt
International
Children's Services
November 4, 2002 China's Cyber-Wall: Can Technology Break
Through?
Aviel Rubin, Co-
founder, Publius
Bill Xia, President,
Dynamic Internet
Technology, Inc.
Lin Hai, Computer
Scientist
Paul Baranowski,
Peekabooty
November 7, 2002 Workplace Safety Issues in the People's
Republic
of China
Trini Wing-Yue Leung,
Independent Researcher
Han Dongfang, Director,
China Labor Bulletin
Chan Ka wai, Associate
Director, Hong Kong
Christian Industrial
Committee
November 18, 2002 The Beijing Olympics and Human Rights
Kevin Wamsley,
Director, International
Centre for Olympic
Studies
Don Oberdorfer,
Journalist-in-
Residence, School of
Advanced International
Studies, Johns Hopkins
University
Lauryn Beer, Director,
Human Rights and
Business Roundtable,
The Fund for Peace
December 9, 2002 Open Forum: Public Perspectives on Human
Rights Practices in
China
Alan Adler, Executive
Director, Friends of
Falun Gong
Christina Fu, Spouse of
Yang Jianli, imprisoned
in China
Robert A. Senser,
Editor, Human Rights
for Workers
Oyunbilig, Executive
Director, The Inner
Mongolian People's
Party
Joan Mower,
Communications
Coordinator,
Broadcasting Board of
Governors
Ciping Huang, Executive
Director, Wei Jingsheng
Foundation
January 27, 2003 Clearing the Air: the Human Rights and Legal
Dimensions of China's
Environmental Dilemma
Elizabeth Economy, C.V.
Starr Senior Fellow and
Director, Asia Studies,
Council on Foreign
Relations
Richard Ferris,
Principal, Beveridge
and Diamond, P.C.
Brian Rohan, Associate
Director, American Bar
Association Asia Law
Initiative
Jennifer Turner, Senior
Project Associate for
China, The Woodrow
Wilson Center
February 3, 2003 Ownership with Chinese Characteristics:
Private
Property Rights and
Land Reform in the
People's Republic of
China
Patrick Randolph,
Professor of Law,
University of Missouri
at Kansas City
Brian Schwarzwalder,
Staff Attorney, Rural
Development Institute
James A. Dorn, Vice-
President for Academic
Affairs, The Cato
Institute
Mark A. Cohen,
Attorney-Advisor,
United States Patent
and Trademark Office
February 24, 2003 Holding up Half the Sky: Women's Rights in
China's Changing
Economy
Margaret Woo,
Professor, Northeastern
University School of
Law
Rangita de Silva, The
Spangenberg Group
Christina Gilmartin,
Professor, History
Department,
Northeastern University
March 10, 2003 Open Forum on Human Rights and the Rule of
Law in China
Roy Zhou, President,
Association of Chinese
Student And Scholars of
the New York Area
Frederick Crook,
Independent Consultant,
The China Group
Yali Chen, Research
Associate, Center for
Defense Information
Lhundup Dorjee, Capital
Area Tibetan
Association
Tenzin, Washington DC-
based Tibetan in exile
Nuri Turkel, General
Secretary, Uyghur
American Association
Greg Walton, Research
Consultant
Ciping Huang, Executive
Director, Wei Jingsheng
Foundation
March 24, 2003 To Serve the People: NGOs and the Development
of Civil Society in
China
Carol Lee Hamrin,
Research Professor,
George Mason University
Qiusha Ma, Assistant
Professor of East Asian
Studies, Oberlin
College
Karla W. Simon,
Professor of Law and
Co-Director of the
Center for
International Social
Development, Catholic
University of America
Nancy Yuan, Vice
President, Director of
Washington office, The
Asia Foundation
April 1, 2003 The Rule of Law in China: Lawyers Without
Law?
James V. Feinerman,
James M. Morita
Professor of Asian
Legal Studies,
Georgetown University
Law Center
Randall Peerenboom,
Acting Professor of
Law, UCLA School of Law
Raj R.J. Purohit,
Legislative Counsel,
Lawyers Committee for
Human Rights
April 7, 2003 Teaching and Learning Tibetan: The Role of
the Tibetan Language in
Tibet's Future
Nicolas Tournadre,
Associate Professor of
Linguistics, University
of Paris 8
David Germano,
Associate Professor of
Tibetan and Buddhist
Studies, University of
Virginia
Losang Rabgey,
Commonwealth Scholar,
School of Oriental and
African Studies,
University of London
April 28, 2003 Codes of Conduct: U.S. Corporate Compliance
Programs and Working
Conditions in Chinese
Factories
Doug Cahn, Vice
President, Human Rights
Programs, Reebok
International Ltd.
Mil Niepold, Director
of Policy, Verite, Inc.
Auret van Heerden,
Director of Monitoring,
Fair Labor Association
Ruth Rosenbaum,
Executive Director,
Center for Reflection,
Education and Action
May 12, 2003 Dangerous Secrets--SARS and China's
Healthcare System
Gail E. Henderson,
Professor of Social
Medicine, University of
North Carolina
Yanzhong Huang,
Assistant Professor,
Whitehead School of
Diplomacy, Seton Hall
University
Bates Gill, Freeman
Chair in China Studies,
Center for Strategic
and International
Studies
June 2, 2003 Voices of the Small Handful: 1989 Student
Movement Leaders Assess
Human Rights in Today's
China
Wang Dan, Graduate
Student, Department of
History and East Asian
Languages, Harvard
University
Liu Gang, Senior
Engineer, Aerie
Networks
Tong Yi, Associate,
Gibson, Dunn, &
Crutcher LLP
July 7, 2003 Freedom of Association for Chinese Workers
Phil Fishman, Associate
Director for
International Affairs,
AFL-CIO
Amy Hall, Manager for
Social Accountability,
Eileen Fisher, Inc.
September 8, 2003 Open Forum on Human Rights and the Rule
of Law in China
Kaiser Seyet, Director
of Communications, The
Uyghur American
Association
Terri Marsh, Human
Rights Attorney
Timothy Cooper,
Executive Director,
Worldrights
Huang Ciping, Executive
Director, Wei Jingsheng
Foundation
September 22, 2003 Freedom of the Press in China After SARS:
Reform and Retrenchment
Gong Xiaoxia, Former
Director of the
Cantonese Service,
Radio Free Asia
Zhang Huchen, Senior
Editor, VOA China
Branch
Bu Zhong, Ph.D
Candidate, University
of Maryland
Lin Gang, Program
Associate, Asia
Program, Woodrow Wilson
Center
X. Endnotes
Voted to approve: Representatives Leach, Bereuter, Dreier,
Wolf, Pitts, Levin, Kaptur, Brown, and Wu; Senators Hagel, Thomas,
Roberts, Smith, Baucus, Levin, Feinstein, and Dorgan; Under Secretaries
Dobriansky and Aldonas, and Assistant Secretaries Craner and Kelly.
Voted not to approve: Senator Brownback.
\1\ The United States-China Relations Act, Public Law No. 106-286,
div. B, title III, sec. 301, 114, Stat. 895 (2000).
\2\ ``Statement by Liu Huaqiu, Head of the Chinese Delegation,''
reprinted in Stephen C. Angle and Marina Swensson, eds., The Chinese
Human Rights Reader: Documents and Commentary, 1900-2000 (Armonk, NY:
2001 M.E. Sharpe), 393.
\3\ ``How Marxism Views Human Rights'' [Makesi zenmayang kan
``renquan'' wenti], Hongqi, no. 5 (1979), trans. in Angle and Swensson,
282.
\4\ Ibid., 284.
\5\ Ibid.
\6\ ``Human Rights, Equality, and Democracy'' [Renquan, pingdeng yu
minzhu], Tansuo, 3 (1979).
\7\ John Downer and Yang Jianli, eds., Wei Jingsheng: The Man and
his Ideas (Pleasant Hill, CA: China in the 21st Century, 1995).
\8\ ``China's Human Rights Situation'' [Zhongguo de renquan
zhuangkuang], People's Republic of China State Council Information
Office [Zhonghua renmin gongheguo guowuyuan xinwen bangongshi]
(Beijing: Zhongyang chubanshe, October, 1991).
\9\ Zhang Liang, Disidai, (New York: Mirror Books, 2002). Two
prominent American scholars, Andrew Nathan and Bruce Gilley, working in
consultation with Zong, have reorganized the material in Disidai for an
English-reading audience in China's New Rulers: The Secret Files, (New
York: New York Review Books Collections, 2002). Both books have
generated a great deal of controversy, with some experts pointing out
that Zhang Liang (compiler of The Tiananmen Papers, edited by Andrew J.
Nathan and Perry Link (New York: Public Affairs, 2001) wrote Disidai
with a political agenda in mind. While much of the information in the
book may be accurate, it is likely to be distorted by ``spin.''
\10\ China's New Rulers, 29.
\11\ Ibid., 178.
\12\ Fang Jue, ``Understanding the New Leadership in China:
Situational Analysis and Suggested Courses of Action'' (Cambridge:
Research Report, Fairbank Center for East Asian Research, Harvard
University, 1 July 2003).
\13\ ``Guangzhou Weekly Shut Down After Interview with Liberal-
Minded Reformist Li Rui,'' South China Morning Post, 15 March 2003,
www.scmp.com.
\14\ Personal communication to CECC staff.
\15\ See Tao-tai Hsia and Wendy Zeldin, People's Republic of China:
Economic and Financial Crimes, Law Library of Congress Report LL2002-
13494 (September 2002).
\16\ For example, messages posted on the People's Daily's Internet
forum, the ``Strong Country Forum'' [qiangguo luntan] had the following
titles: ``The corruption of Railway Ministry officials makes a person
cluck one's tongue! '' (13 December 2002); ``China's cadres abuse
power, and commit graft and corruption because they have too much power
in their hands, and there is no effective supervision.'' (12 December
2002).
\17\ The procuratorates are China's equivalent of the U.S.
Attorney's offices; they are responsible for prosecuting criminal
defendants in China. The procuratorates also perform legal supervision
of the judicial process of courts and investigation of criminal cases.
The Supreme People's Procuratorate is the highest procuratorial organ.
\18\ Supreme People's Procuratorate 2003 Work Report, 11 March
2003.
\19\ ``Procuratorial Organs Actively Fight Against Corruption,''
Xinhua, 11 March 2003, (24 September 2003).
\20\ ``Chief Justice: 80,000 Corrupt Officials Brought to
Justice,'' Xinhua, 11 March 2003, (24 September 2003).
\21\ Li Xiao, ``Anti-Corruption Work Has Only Just Begun,'' China
Internet Information Center, 25 April 2003, (24 September 2003).
\22\ The theory of the ``Three Represents'' (defined as
``representing the developmental requirements for China's advanced
productive forces, representing forward progress for China's advanced
culture, and representing the fundamental interests of the broadest
section of the masses of the people'') was enunciated by Jiang Zemin in
a major speech on May 31, 2002. For the new leaders' goals in the
corruption area, see ``The Central Authorities Plan To Put in Place
Mechanisms of Supervision for Anti-Corruption Work,'' Hong Kong Sing
Tao Jih Pao, 22 August 2003, translated in FBIS, Doc. ID
CPP20030711000075.
\23\ ``CPC Watchdog Outlines Anti-Corruption Policies,'' Xinhua, 20
February 2003,
(24 September 2003).
\24\ People's Republic of China Criminal Law [Zhonghua renmin
gongheguo xing fa], enacted 1 July 1979, arts. 382-396.
\25\ Ibid., art. 384.
\26\ Ibid., art. 386.
\27\ Ibid., art. 390.
\28\ Ibid., art. 395. This offense resembles the ``net assets''
approach of white-collar crime experts in the United States. Once the
Procuracy has shown that a defendant's disposable income exceeds his
lawful income by a ``very large amount,'' the burden of proof shifts to
the defendant to prove that his money was acquired legitimately.
\29\ Criminal Law, arts. 151-157.
\30\ Ibid., arts. 201-212.
\31\ See, e.g., Albert H.Y.Chen, An Introduction to the Legal
System of the People's Republic of China (Hong Kong: Butterworths,
Asia, 1992), 69-76.
\32\ Constitution of the Communist Party of China (Adopted and
Amended at the 16th National Congress of the Communist Party of China,
November 14, 2002), Preamble, arts. 10, 15, and 16.
\33\ ``Work Report of the CPC Central Commission for Discipline
Inspection to the 16th Party Congress,'' (Adopted at the 16th National
Congress of the Communist Party of China on 14 November 2002).
\34\ ``Ex-Public Security Minister Under House Arrest for Role in
Smuggling Case, Graft,'' Hong Kong Zhengming, 1 December 2000.
\35\ Susan Travaskes, ``Courts on the Campaign Path in China:
Criminal Court Work in the `Yanda 2001' Anti-Crime Campaign,'' 42 Asian
Survey, no. 5 (September/October 1995), 676.
\36\ Supreme People's Court 2003 Work Report, 11 March 2003.
\37\ The format of official Chinese legal statistics makes it
difficult to calculate a precise conviction rate. However, a 2003
Supreme People's Court report notes that between 1998 and 2002,
3,222,000 individuals were convicted of crimes in trials of first
instance, while 26,521 defendants were found innocent of crimes (which
gives a conviction rate of roughly 99.1 percent). Situation of Judgment
Work and the Building of Judicial Cadres of the People's Courts, 1998-
2002 [1998-2002 nian renmin fayuan shenpan gongzuo heduiwu jianshe
qingkuang] (17 March
2003). This figure corresponds with the annual conviction rate for 2001
provided in the China Law Yearbook. See 2002 China Law Yearbook [2002
Zhongguo falu nianjian], (Beijing: Law Publishing House, 2002), 144.
\38\ People's Republic of China Criminal Law [Zhonghua renmin
gongheguo xingfa], enacted July 1979.
\39\ The U.S. State Department provides an estimate of 4,000
executions. Bureau of Democracy, Human Rights, and Labor, U.S.
Department of State ``Country Reports on Human Rights Practices--2002,
China (includes Hong Kong and Macau),'' 31 March 2003 (8 July 2003). John Kamm
of the Dui Hua Foundation conservatively estimates that at least 10,000
executions are carried out each year. Commission staff Interview.
Disidai, a book purportedly written by a knowledgeable government
source, claims that China has executed up to 15,000 people per year
since beginning of this strike hard campaign in April 2001 ``Sichuan
Gangsters Sentenced to Death; Strike Hard Campaign Continues,'' Hong
Kong Agence France-Presse, 19 July 2003, in FBIS, Doc. ID
CPP20030719000050.
\40\ Constitution of the People's Republic of China, art. 35.
\41\ Crimes of endangering state (or national) security are found
in the Criminal Law, arts. 102-113. The most notable are Article 105,
which prohibits the organizing, plotting or carrying out of a scheme to
subvert State power or overthrow the socialist system or inciting
others to do the same, and Article 103, which prohibits the organizing,
plotting or carrying out of a scheme to split the State or undermine
the unity of the country or inciting others to do the same.
\42\ ``Chinese Procuratorates Crack Down on Crimes Threatening
State Security,'' Xinhua, 11 March 2003, (11 March 2003).
\43\ Article 300 of the Criminal Law prohibits using a heretical
sect ``to undermine implementation of the laws.''
\44\ The Dui Hua Foundation, ``Surge in Arrests and Prosecutions
for Endangering State Security,'' Dialogue, Issue No. 11, Spring 2003,
2.
\45\ Ibid.,1.
\46\ Human Rights in China Press Release, ``Dissident Zhao
Changqing Jailed for 5 Years,'' 4 August 2003.
\47\ The six other known cases relating to the open letter to the
16th Party Congress calling for political reform are He Depu, Sang
Jianchen, Ouyang Yi, Dai Xuezhong, Han Lifa, and Jiang Lijun. (Human
Rights in China, ``China and the Rule of Law,'' No. 2, 2003, 99-104.)
According to the Dui Hua Foundation, Dai Xuezhong was sent to re-
education through labor for 3 years for ``endangering state security.''
Han Lifa was reportedly ``released on bail awaiting investigation''
[baowai houshen].
\48\ John Kamm, ``China Wages Silent War on Dissident Thought,''
Project Syndicate, 15 June 2003. Article 300 of the Criminal Law is
frequently used to further the persecution of Falun Gong members; it
prohibits, among other things, the use of ``heretical sects'' or
``superstition'' to undermine implementation of laws, rules, and
regulations.
\49\ The Dui Hua Foundation, ``Surge in Arrests and Prosecutions
for Endangering State Security,'' Dialogue, No. 11, Spring 2003, 3. See
also Robin Munro, Dangerous Minds: Political Psychiatry in China Today
and Its Origins in the Mao Era, (New York: Human Rights Watch & Geneva
Institute of Psychiatry, 2002) 3 (``[E]ven today the acquittal rate for
people accused of political crimes in China is virtually nil.'').
\50\ The Dui Hua Foundation, ``Surge in Arrests and Prosecutions
for Endangering State Security,'' Dialogue, No. 11, Spring 2003, 3.
\51\ Human Rights in China, Empty Promises: Human Rights
Protections and China's Criminal Procedure Law in Practice, 1 March
2001, 22; Randall Peerenboom, China's Long March toward Rule of Law
(Cambridge, U.K.: Cambridge University Press, 2002), 314-15.
\52\ Supreme People's Procuratorate 2003 Work Report, 11 March
2003.
\53\ The International Covenant on Civil and Political Rights
provides that ``[a]nyone arrested or detained on a criminal charge
shall be brought promptly before a judge or other officer authorized by
law to exercise judicial power'' and ``[a]nyone who is deprived of his
liberty by arrest or detention shall be entitled to take proceedings
before a court, in order that that court may decide without delay on
the lawfulness of his detention and order his release if the detention
is not lawful.'' Arts. 9(3) and 9(4). In China, a suspect or defendant
may only seek release when detention has exceeded the permissible time
periods under the CPL.
\54\ ``China's Public Prosecutors Crack Down on Illegal Prolonged
Detention,'' Xinhua, 22 July 2003 available in FBIS, Doc. ID
CPP20030722000129. The email address is , and the
hotline numbers are 010-68650468, 010-65252000.
\55\ ``Procuratorial Organs Take Action to Curb Extended Detention
of Criminal Suspects,'' Zhongguo Xinwen She, 3 August 2003, translated
in FBIS, Doc. ID CPP20030803000050.
\56\ Human Rights in China, Empty Promises: Human Rights
Protections and China's Criminal Procedure Law in Practice, 1 March
2001, 38-9; Yu Ping ``Glittery Promise v. Dismal Reality: The Role of a
Criminal Lawyer in The People's Republic of China After the 1996
Revision of the Criminal Procedure Law,'' 35 Vanderbilt J.
Transnational Law 827 (2002): 841-42.
\57\ See UN Working Group on Arbitrary Detention, Opinion No. 2/
2003.
\58\ ``Beijing Conducts Trial of U.S. Based Activist Accused of
Spying For Taiwan,'' South China Morning Post, 5 August 2003, in FBIS,
Doc. ID CPP20030808000075.
\59\ Article 168 of the Criminal Procedure Law requires, as a
general rule, that courts announce their decisions in public
prosecution cases within 1.5 months of accepting the case. If certain
specific conditions are met, however, the time period may be extended
by 1 month, for a total of 2.5 months. People's Republic of China
Criminal Procedure Law [Zhonghua renmin gongheguo xingshi susongfa],
enacted 1 July 1979, art. 168.
\60\ See Section III(d).
\61\ Fang Jue, ``A New Type of Political Exile,'' China Rights
Forum, No. 2, 2003, 62.
\62\ For a discussion of re-education through labor, see
Congressional-Executive Commission on China, Annual Report 2002, 29.
\63\ ``China Makes Drug Addicts Say `No','' Associated Press, 15
November 2001, (8 July 2003). China had one million registered drug addicts
by the end of 2002, up 11 percent from 2001. See ``China Registers One
Million Drug Addicts by End of 2002,'' China Internet Information
Center, 25 June 2003, (8 July 2003). In 2000, China had 746 detoxification centers
and 168 re-education centers for drug users.
\64\ See Section V(e). Chinese scholars have argued in different
contexts that administrative regulations restricting the personal
freedom of citizens are unlawful because (1) under Articles 8 and 9 of
the Legislation Law and Article 8 of the Administrative Punishments
Law, the freedom of citizens can only be restricted by law (not by
administrative regulations) and (2) under Article 37 of the PRC
Constitution, no citizen may be arrested except with the approval of a
people's procuratorate or people's court, and unlawful deprivation of
freedom by detention or other means is prohibited. In the international
context, the ICCPR provides that ``Anyone arrested or detained on a
criminal charge shall be brought promptly before a judge or other
officer authorized by law to exercise judicial power'' and ``[a]nyone
who is deprived of his liberty by arrest or detention shall be entitled
to take proceedings before a court, in order that that court may decide
without delay on the lawfulness of his detention and order his release
if the detention is not lawful.'' ICCPR, arts. 9(3) and 9(4).
\65\ John Pomfret, ``Child's Death Highlights Problems in Chinese
Justice,'' Washington Post, 3 July 2003, A1.
\66\ Robin Munro, Dangerous Minds: Political Psychiatry in China
Today and Its Origins in the Mao Era (New York: Human Rights Watch &
Geneva Institute of Psychiatry, 2002), 118-22.
\67\ Ibid., 121.
\68\ Ibid., 36, 235.
\69\ UN Working Group on Arbitrary Detention, Opinion No. 20/2001,
E/CN.4/2003/8 Add.1, adopted on 28 November 2001.
\70\ Robin Munro, Dangerous Minds, 19, 37-38.
\71\ Bureau of Democracy, Human Rights, and Labor, U.S. Department
of State, ``Country Reports on Human Rights Practices--2002, China
(includes Hong Kong and Macau),'' 31 March 2003, (8 July 2003). See also Veron Hung,
``Reassessing Reeducation Through Labor,'' China Rights Forum, No. 2,
2002, 35. According to credible sources, as of late January 2003,
hundreds of female Falun Gong practitioners were being held in a single
re-education through labor camp in Sichuan.
\72\ See Congressional-Executive Commission on China Annual Report
2002, 29, 30, for a discussion of custody and repatriation. See also
Human Rights in China's reports on custody and repatriation and the
hukou system: Not Welcome at the Party: Behind the ``Clean-Up of
China's Cities--A Report on Administrative Detention Under `Custody and
Repatriation' '' (1999) and Institutionalized Exclusion: The Tenuous
Legal Status of Internal Migrants in China's Major Cities (2002), and
Congressional-Executive Commission on China Roundtable, Voices of the
Small Handful, 1989 Student Movement Leaders Assess Human Rights in
Today's China, 2 June 2003, Testimony of Tong Yi.
\73\ Torture, rape forced labor, and other forms of abuse were
commonplace in the custody and repatriation centers. Public security
officers often abused their power by detaining migrant workers and then
extorting money from them or their families in exchange for their
release.
\74\ ``The Death of Sun Zhigang in Custody and Repatriation [Bei
shourongzhe sun zhigang zhisi]'' Southern Metropolitan Daily, [Nanfang
dushibao], 25 April 2003, (3 September 2003).
\75\ Daniel Kwan, ``Police Lose Power over Rural Migrants,'' South
China Morning Post, 23 June 2003, www.scmp.com; Measures on the
Administration of Aid to Indigent Vagrants and Beggars in Cities
[Chengshi shenghou wuzhe de liulang qitao renyuanjiuzhu guanli banfa],
issued 18 June 2003.
\76\ Ibid.
\77\ Bureau of Democracy, Human Rights, and Labor, U.S. Department
of State ``Country Reports on Human Rights Practices--2002, China
(includes Hong Kong and Macau),'' 31 March 2003, (8 July 2003) 3. See also Tom Kellogg,
``A Case for the Defense,'' China Rights Forum: China and the Rule of
Law, No. 2, 2003, 33 (noting a law professor in China estimated that 70
percent of criminal prosecutions take place without defense counsel).
\78\ See People's Republic of China Criminal Procedure Law
[Zhonghua renmin gonghe guo xingshi susong fa], enacted 1 July 1979,
art. 64. UN Working Group on Arbitrary Detention Opinion, 2-3. See also
Congressional-Executive Commission on China Roundtable, China's
Criminal Justice System, 26 July 2002, Testimony of Jerome Cohen:
``It should be emphasized that the CPL does not require a lawyer to
show the detaining authority a copy of the detention notice in order to
get access to his client. Yet police and prosecutors frequently take
this position, and defense lawyers themselves will often reluctantly
tell a would-be client that they cannot even accept the case unless a
copy of the detention notice is provided to them.''
\79\ Ibid.
\80\ Criminal Procedure Law, art. 96. See also Congressional-
Executive Commission on China Roundtable, China's Criminal Justice
System, 26 July 2002, Testimony of Jerome Cohen. ``Yet PRC police and
prosecutors often deny lawyers access to their clients on far-fetched
claims of `state secrets.' ''
\81\ For a discussion of the problems plaguing Chinese criminal
defense lawyers, see Congressional-Executive Commission on China Topic
Paper, ``Defense Lawyers Turned Defendants: Zhang Jianzhong and the
Criminal Prosecution of Defense Lawyers in China,'' 5 July 2003.
\82\ ``Lawyers Turn Pale at the Mention of Defending Criminal
Suspects--on Worries Arising from Decreasing Ratio of Lawyers Taking on
Criminal Defense Cases,'' Fazhi Ribao, 13 January 2003, translated in
FBIS, Doc. ID. CPP20030213000191.
\83\ See Congressional-Executive Commission on China Paper,
``Defense Lawyers Turned Defendants;'' Tom Kellogg, ``A Case for the
Defense,'' China Rights Forum: China and the Rule of Law, No. 2, 2003.
\84\ ``Shanghai Lawyer Zheng Enchong Formally Arrested,'' Human
Rights in China Press Release, 20 June 2003.
\85\ ``Interventions Made on Behalf of Jailed Lawyer,'' Human
Rights in China Press Release, 30 July 2003. See also International
Commission of Jurists Web site for its letter to the Chinese
government: (22 September 2002).
\86\ See Congressional-Executive Commission on China 2002 Annual
Report, 28-29 and specific cases detailed below.
\87\ Bureau of Democracy, Human Rights, and Labor, U.S. Department
of State ``Country Reports on Human Rights Practices--2002, China
(includes Hong Kong and Macau),'' 31 March 2003 (8 July 2003).
\88\ Human Rights in China Press Release, ``Four Internet Activists
Imprisoned for Subversion,'' 28 May 2003.
\89\ Congressional-Executive Commission on China Roundtable, Voices
of the Small Handful, 1989 Student Movement Leaders Assess Human Rights
in Today's China, 2 June 2003, Testimony of Tong Yi.
\90\ Bureau of Democracy, Human Rights, and Labor, U.S. Department
of State, ``Country Reports on Human Rights Practices--2002, China
(includes Hong Kong and Macau),'' 31 March 2003, (8 July 2003).
\91\ Amnesty International Report 2003: China. Available at
. AI Index: POL 10/003/2003.
\92\ Ian Williams, ``China Sells Organs of Slain Convicts,'' The
Observer, 10 December 2000, (22 September 2002).
\93\ Thomas Fuller, ``An Execution for a Kidney,'' International
Herald Tribune, 15 June 2000, (22 September 2002).
\94\ ``Rare Chinese Newspaper Expose Details Prisoner Organ
Harvests,'' Washington Post, 31 July 2001,
\95\ ``China Paper Sacks Organ Trade Reporter,'' Reuters, 2 August
2001. When Yao was hired later the same year at a unit of Guangdong's
Yangcheng Evening News, he was quickly fired on orders from central and
provincial Propaganda authorities. ``Whistle-blower Sacked Again,''
South China Morning Post, 5 October 2001, .
\96\ ``Chinese Journalist Who Reported on Human Organ-Harvesting is
Dismissed,'' Associated Press, 4 August 2001, (24 September 2003).
\97\ ``Shenzhen: First Domestic Regulations Passed on the Donation
and Transplantation of Human Organs'' [Shenzhen: Guonei shoubu renti
ziguan sunxian yizhi tiaolie huo tongguo], People's Daily [Renmin
ribao], (22
September 2003).
\98\ See Article 152 of the PRC Criminal Procedure Law requires
trials to be heard in public with a few exceptions, and further
provides that the reason for not hearing a case in public must be
announced in court. People's Republic of China Criminal Procedure Law
[Zhonghua renmin gonghe guo xingshi susong fa], Art. 152 enacted 1 July
1979.
\99\ See Congressional-Executive Commission on China Topic Paper:
``Defense Lawyers Turned Defendants,'' 5; ``China: Trial of Shanghai
Lawyer Accused of Passing State Secrets to Foreigners Opens,'' Hong
Kong RTHK Radio 3, 28 August 2003, in FBIS, Doc. ID CPP20030828000132.
\100\ ``China Bars U.S. From Activist's Trial,'' New York Times, 1
August 2003.
\101\ ``Chinese-Born Tycoon on Trial on Charges of Fraud,
Bribery,'' Associated Press, 11 June 2003, (11
June 2003).
\102\ Ibid.
\103\ Consular Convention between the United States of America and
the People's Republic of China, 18 February 1982, art. 35(5).
\104\ John Gittings, ``China Questions Death Penalty,'' The
Guardian, 15 January 2003, (16 January 2003).
\105\ ``Death-row Lawyer Heads China's Execution Debate,'' Reuters,
4 February 2003, (4 February 2003).
\106\ Guo Guangdong, ``Death Penalty: Keep it or Abolish it?''
[Sixing: Baoliu? Feichu?] Southern Weekend [Nanfang zhoumo], 9 January
2003.
\107\ ``International Conference on Bail Opens in Beijing,''
[Baoshi zhidu guoji yantaohui zai jing zhaokai], Chinese Lawyer Net
[Zhongguo lushiwang], 3 June 2003, (6 July 2003).
\108\ See, e.g., ``Bail System: Learn From Others Or Keep What We
Already Have? '' [Baoshi zhidu: ta shan zhi shi haishi huai bei zhi
ji],'' Procuratorate Daily [Jiancha ribao], 24 April 2003, (7 July 2003).
\109\ The eight core conventions are: Minimum Age Convention, 1973
(Convention 138); Worst Forms of Child Labor Convention, 1999
(Convention 182); Forced Labor Convention, 1930 (Convention 29);
Abolition of Forced Labor Convention, 1957 (Convention 105); Freedom of
Association and Protection of the Right to Organize Convention, 1948
(Convention 87); Right to Organize and Collective Bargaining
Convention, 1949 (Convention 98); Discrimination (Employment and
Occupation) Convention, 1958 (Convention 111); Equal Remuneration
Convention, 1951 (Convention 100). Text for all conventions can be
found at the International Labour Organization's Web site at .
\110\ Congressional-Executive Commission on China Roundtable,
Freedom of Association for Chinese Workers, 7 July 2003, Testimony of
Phil Fishman.
\111\ Decision of the Standing Committee of the National People's
Congress on Amending the Trade Union Law of the People's Republic of
China, enacted October 27, 2001, art. 11.
\112\ Congressional-Executive Commission on China Roundtable,
Workplace Safety Issues in the People's Republic of China, 11 November
2002, Testimony of Han Dongfang.
\113\ Congressional-Executive Commission on China Roundtable, Codes
of Conduct: U.S. Corporate Compliance Programs and Working Conditions
in Chinese Factories, 7 July 2003, testimony of Doug Cahn.
\114\ Congressional-Executive Commission on China Roundtable,
Workplace Safety Issues in the People's Republic of China, 11 November
2002, Testimony of Han Dongfang.
\115\ Congressional-Executive Commission on China Roundtable,
Workplace Safety Issues in the People's Republic of China, 11 November
2002, Testimony of Trini Leung.
\116\ People's Republic of China State Council Order Number 174,
Decision on Amending the ``State Council Provisions on Work Hours for
Laborers,'' [Guowuyuan guanyu xiugai ``Guowuyuan guanyu zhigong gongzuo
shijian de guiding'' de guiding], enacted March 25, 1995, arts. 1 and
2.
\117\ People's Republic of China Labor Law [Zhonghua renmin
gongheguo laodongfa], enacted 5 July 1994, arts. 41 and 44.
\118\ ``China: A Boom in Going Bust,'' Economist Intelligence Unit
Executive Briefing, 30 July 2003, (July 7,
2003).
\119\ ``Nation Issues Regulation Banning Child Labor,'' China
Daily, 16 October 2002 (23 September 2003).
\120\ International Labor Organization, Ratifications of the ILO
Fundamental Conventions (As of 23 September 2003), (23 September 2003).
\121\ Constitution of the People's Republic of China, art. 36.
\122\ White House News Release, ``President Bush, Chinese President
Jiang Zemin Discuss Iraq, N. Korea,'' 25 October 2002, (23 September
2003).
\123\ Department of State Press Statement, ``Six Nations Listed As
Severe Violators of Religious Freedom,'' 5 March 2003, (23 September 2003).
\124\ United States Commission on International Religious Freedom,
2003 Annual Report, 1 May 2003, (23 September 2003).
\125\ ``China Arrests 12 Members of Unauthorized Church,'' Agence
France Presse, 19 June 2003.
\126\ Ibid.
\127\ Erik Eckholm, ``Jailed Religious Leader in China in Poor
Health,'' New York Times, 11 June 2003, .
\128\ John Pomfret, ``Evangelicals on the Rise in Land of Mao,''
Washington Post, 24 December 2002, .
\129\ Ibid.
\130\ ``Cardinal Sodano Says Relations Between Holy See, China `At
Standstill,' '' Union of Catholic Asian News, 12 June 2003.
\131\ ``China Tightening Its Grip on Catholics,'' Zenit.org, 28 May
2003, (24 September
2003).
\132\ Ibid.
\133\ Ibid.
\134\ Congressional-Executive Commission on China Hearing, Will
Religion Flourish Under China's New Leadership?, 24 July 2003, Written
Statement of Randall Schriver.
\135\ ``After Five Decades, Tibet's Monks Still Bristle Under
Chinese Rule,'' Agence France-Presse, 18 August 2002, in FBIS, Doc ID
CPP20020818000009. (``When the `Panchen Lama' . . . went to the
Jokhang, the monastery at the centre of Lhasa in June [2002], soldiers
armed with machine guns surrounded the building,'' [the monk] said.
``Many monks were not even permitted to be there to receive him.''
Ibid. Another public but uncirculated report by Kate Saunders,
``Security surrounds visit of Chinese choice of Panchen Lama to
Kumbum,'' 18 August 2003, provides details about Gyaltsen Norbu's visit
to Kumbum Monastery (Chinese: Ta'ersi) in August 2003.
\136\ Congressional-Executive Commission on China Topic Paper,
``The Execution of Lobsang Dondrub and the Case Against Tenzin Deleg:
The Law, the Courts, and the Debate on Legality,'' 10 February 2003.
\137\ According to a draft translation by the International
Campaign for Tibet of Sonam Phuntsog's official sentencing document
dated 20 November 2002 (gan zhong xin yi chu zi No. 11, 2002), ``Even
though the accused and his lawyer denied that he delivered the words
``Tibet independence,'' his actions showed that the accused advocated
separating the country and undermining the unity of our
nationalities.'' (6 August 2003).
\138\ Bureau of Democracy, Human Rights, and Labor, U.S. Department
of State, ``International Religious Freedom Report--2002, China
(Includes Hong Kong and Macau),'' 7 October 2002, (8 October 2002).
\139\ Bureau of Democracy, Human Rights, and Labor, U.S. Department
of State, ``Country Report on Human Rights Practices--2002, China
(Includes Hong Kong and Macau),'' 31 March 2003, (1 April 2003).
\140\ Human Rights Watch World Report 2003: China and Tibet,
January 2003, (15 January 2003).
\141\ ``Falun Cult Condemned for Hindering SARS Control,'' People's
Daily, (English edition) 11 June 2003,
\142\ See arts. 19, 19, and 35, respectively.
\143\ See, e.g., Zhao Xianglin, ``A Web site in the City Posts News
Without Authorization and is Ordered to Adjust and Reform,'' [Shiqu yi
wangzhan shanzi dengzai xinwen beile ling zhengdun] FSOnline [Foshan
zaixian] (online edition of the Foshan Daily), 10 September 2002,
(2
September 2003) . In December 2002, Chinese authorities announced that
they would institute a national licensing system for reporters, see
``Who is Qualified to be a Reporter? Different Reflections on the
Media's Reporting on Various Aspects of Society'' [Shei you zige dang
jizhe-Meiti shilu shehui geshi duici butong fanying], People's Daily
[Renmin wang], 9 January 2003, (14 August 2003), and Shanghai has already put
such a licensing system in place, see ``Shanghai Holds the First
Journalist Qualification Examination, Questions May Stymie Older
Journalists'' [Shanghai shouci jizhe zige kaoshi] Southern Net [Nanfang
Wang], (14
August 2003), citing Cai Yan, China Youth Daily [Qingnian bao], 23
December 2002.
\144\ For a list of legal provisions relating to these and other
restrictions on freedom of expression in China, see .
\145\ See, e.g., Karl Marx, ``Debates on Freedom of the Press and
Publication of the Proceedings of the Assembly of the Estates,''
Rheinische Zeitung, May 1842:
``The free press is the ubiquitous vigilant eye of a people's soul,
the embodiment of a people's faith in itself, the eloquent link that
connects the individual with the state and the world, the embodied
culture that transforms material struggles into intellectual struggles
and idealizes their crude material form. . . . It is the censored press
that has a demoralizing effect. . . . The government hears only its own
voice, it knows that it hears only its own voice, yet it harbors the
illusion that it hears the voice of the people, and it demands that the
people, too, should itself harbor this illusion.''
Available at (14 August 2003). See also Mao Zedong, ``Discussions
on United Government,'' [Lunlian he zhengfu] in ``Mao Zedong Makes the
Government Report to the Seventh Plenum of the Chinese Communist
Party'' [Mao Zedong zuoqi da zhengzhi baodao], 24 April 1945:
``We believe that the following demands are appropriate, and are
the minimum acceptable: . . . We demand the elimination of all
reactionary orders that suppress such things as the people's speech,
press, assembly, association, thought, belief and personal freedoms,
and that the people be able to obtain meaningful free rights.''
Available at (14 August 2003).
\146\ For a summary of this discussion see the Congressional-
Executive Commission on China Topic Paper, ``The Execution of Lobsang
Dondrub and the Case Against Tenzin Deleg: The Law, the Courts, and the
Debate on Legality,'' 10 February 2003.
\147\ For example, unlike the death penalty conference discussed
above, the Internet Society of China's 2002 Annual Conference held in
November, 2002 in Shanghai and attended by Commission staff, was open
to the press and the public. There was no discussion, much less debate,
of freedom of expression as it relates to the Internet. One session was
billed as having an ``open forum,'' where audience members could
question leaders of China's Internet industry. However, the open forum
consisted of the moderator calling on a reporter from China's state
owned media, who asked the panel: ``When do you think the Spring of
China's Internet will begin? '' After several panel members responded,
the moderator immediately declared the open forum over, even though 20
minutes remained before the session was scheduled to end.
\148\ For example, although the Chinese government encourages the
state controlled media to engage in targeted reporting on corruption,
it will not tolerate similar criticisms from private individuals. See,
e.g., ``An Employee is Detained [by `Internet police'] for
Rumormongering for Exposing the Corruption of a Superior [Wangshang
helu lingdao `fubai' yi yuangong zaoyao bei juliu],'' People's Daily
[Renmin wang], 5 September 2003 (citing the Chu Tian Metropolitan Daily
[Chutian dushibao]), (5 September 2003).
\149\ See, e.g., ``The Province Commences the Work of Province-Wide
Rectification of Party and Government Agency Publications Abusing and
Misusing Authority in Distribution,'' [Wo sheng kaizhan quansheng zhili
dangzheng bumen baokan sanlan heli yongzhi quanfaxing gongzuo], Hubei
Press and Publication Net [Hubei xinwen chuban wang], 7 August 2003,
(28 August 2003).
\150\ See, e.g., Zhang Jiahou, ``A Marxist View of the Press and
`Supervising Public Opinion' '' [Makesi zhuyi xinwen guanyu xinglun
jiandu] Hubei Media Net [Hubei zhuan mei wang], 25 August 2002, (14 August 2003):
``When reporters write articles supervising public opinion, they
must bang the drum and shout on behalf of the Party and the people, and
certainly may not take the side of a single person or a small group of
people and try to gain benefit for themselves in the name of
supervising public opinion.''
See also Dong Qiang, ``Chen Liangyu Emphasizes Needs to Ensure
Implementation of Central Committees' Demand in Shanghai; Municipal
Party Committee Convenes Standing Committee Meeting to Specifically
Study Ways to Rectify Unorganized, Indiscriminate Press and
Publications Distribution,'' [Chen Liangyu qiangdiao quebao zhongyang
yaoqie zai benshi dedao guanqie luoshi zhili sanlan tanpai faxing],
translated in FBIS, Doc. CPP20030729000046, citing Shanghai Liberation
Daily [Shanghai jiefang ribao], 28 July 2003:
``We should combine the launch of the special rectification drive
with the strengthening of the party's supervision over the press and
publications. We should always unswervingly uphold the nature of media
as the mouthpiece of the Party and people, always uphold the Party's
supervision over newspapers and periodicals, and always adhere to the
correct direction in guiding public opinion.''
\151\ ``Destroy Fascist Publishing Laws,'' [Dadao faxicsi de
chubanfa], Chongqing Xinhua Daily [Xinhua ribao], 29 June 1946:
``Modern democratic countries like England and the United States
simply have nothing like publishing laws formulated to gag freedom of
the press. In a publishing law, to adopt requirements that newspapers
and periodicals must not only apply and register, but most also obtain
permission in order to engage in distribution under a so-called special
permit system; only fascist countries have this sort of evil.''
\152\ See, e.g., John Milton, ``A Speech for the Liberty of
Unlicensed Printing to the Parliament of England,'' Areopagitica
(1644).
\153\ Another form of prior restraint is judicial injunction. One
political commentator explained the distinction between government
censorship and judicial injunction as follows:
``The censor has no law but his superiors. The judge has no
superiors but the law. The judge, however, has the duty of interpreting
the law, as he understands it after conscientious examination, in order
to apply it in a particular case. The censor's duty is to understand
the law as officially interpreted for him in a particular case. The
independent judge belongs neither to me nor to the government. The
dependent censor is himself a government organ. In the case of the
judge, there is involved at most the unreliability of an individual
intellect, in the case of the censor the unreliability of an individual
character.''
Karl Marx, ``Debates on Freedom of the Press and Publication of the
Proceedings of the Assembly of the Estates,'' Rheinische Zeitung, May,
1842, available at (14 August 2003).
\154\ See for a
list of Chinese laws and regulations in this area.
\155\ See, e.g., Wu Xuecan (former editor of the official People's
Daily Foreign Edition), ``Let Everyone Become a Censor: The CCP's
Multifaceted Media Control'' [Rang meige ren dou biancheng
jianchayuan], VIP Reference [Da cankao], 12 March 2002, (14 August 2003); Congressional-Executive
Commission on China Open Forum Roundtable on Human Rights and the Rule
of Law in China, 10 March 2003, Testimony and written statement of Chen
Yali; and Elisabeth Rosenthal, ``Beijing in a Rear-Guard Battle Against
a Newly Spirited Press,'' New York Times, 15 September 2002, A1.
\156\ See Wei Xiaowei, ``Shenzhen Establishes a Publication
Orientation Warning Mechanism'' [Shenzhen jianli chuban daoxiang yu
jingji zhi], Gansu Xinhua (29 August 2003) (citing the China Press and
Publication Daily [Zhongguo xinwen chuban bao]).
\157\ See, e.g., ``The Central Government Prohibits the Domestic
Media from Discussing Constitutional Reforms'' [Zhongyang jin neidi
zhuan meiti zhenggai xiuxian] 21 August 2003, Hong Kong Sing Tao Jih
Pao, (22 August 2003).
\158\ ``Shenzhen Editor Sacked over Article Satirizing Hu,'' The
Straits Times, 26 November 2002. Available at (14 August
2003).
\159\ John Pomfret, ``Chinese Newspaper Shut After Call for
Reform,'' Washington Post, 14 March 2003, (14 August 2003).
\160\ Richard McGregor, ``China Moves to Control Liberal Paper,''
Financial Times, 4 May 2003, (5 May
2003).
\161\ ``A Beijing Newspaper is Censored for Criticizing the
Government,'' [Beijing yi jia baozhi piping zhengfu zaojin], BBC.com,
Chinese edition, 16 June 2003, (citing a report in the Hong Kong Wen
Hui Bao), (15 August 2003).
\162\ See, e.g., Congressional-Executive Commission on China Open
Forum Roundtable on Media Freedom in China, 24 June 2002, Transcript of
He Qinglian, former journalist in the PRC:
``One of these subjects [that the government does not allow to be
reported] is criticism of individual Chinese leaders. Also, matters
relating to foreign affairs that the government does not wish
foreigners to know about. Every couple of months there were a dozen or
more different kinds of materials that were not to be discussed at all.
One is not permitted to criticize the national economic policy or to
discuss matters relating to Tibet, Taiwan, or Xinjiang, or about the
Cultural Revolution. There were many such regulations.''
(Available at (18 August 2003)) For an example of such a
regulation, see The Communist Party Propaganda Department and the
General Administration on Press and Publication Issue a Notice
Demanding that Book Publishing Work Welcome the 16th Party Congress in
a Practical Manner, [Zhong xuanbu xinwen chuban zong shufachu tongzhi
yaoqiu qieshi zuohao huanjie shiliu da tushu chuban gongzuo], issued 18
March 2002, (18 August
2003).
\163\ ``China Sites Count Cost of Cyber-Control,'' CNN, 4 November
2003 (15 August
2003).
\164\ For example, by impeding the efficiency of the WHO's Global
Public Health Information Network, an electronic surveillance system
that actively trawls the World Wide Web looking for reports of
communicable diseases and communicable disease syndromes in electronic
discussion groups, on news wires and elsewhere on the Web.
\165\ Huang Liqi, ``Incident Resulting from Rumors of an Unknown
Virus, Heyuan City Citizens Fight to Buy Antibiotics'' [Shi yin
chuanwen chuxian weiming bingdu, Heyuan shimin zhenggou kangshengsu],
Jinyang Net [Jinyang wang] (the online version of the Yangcheng Evening
News [Yangcheng wan bao]), 3 January 2003 (15 August 2003). Government-
controlled media stated that people in Guangdong began coming down with
SARS in November of 2002. See ``What Can We Do to Defeat SARS? ''
[Women kao shenma zhansheng ``fedian? ''], Southern Weekend [Nanfang
zhoumou], 24 April 2003, (15 August 2003).
\166\ ``Heyuan City Citizens go to Guangzhou in Panic Buying of
Antibiotics'' [Heyuan ren gua Guangzhou qianggou kangshengsu], Jinyang
Net [Jinyang wang] (the online version of the Yangcheng Evening News
[Yangcheng wanbao]), 5 January 2003, (15 August 2003); ``The Appearance of
an Unknown Virus in Heyuan is a Rumor'' [``Heyuan xian weiming bingdu''
shi yaoyan], Jinyang Net [Jinyang wang] 9 January 2003, (15 August
2003).
\167\ For example, in the same month the Ministry of Health issued
a notice requiring government departments to concienciously report
incidents of unknown infectious diseases to the Ministry, several
provincial and municpal governments issued a notice threatening
Internet users who ``distorted facts'' or ``spread rumors'' regarding
SARS with criminal prosecution. Compare Notice Regarding Strengthening
Work on the Prevention of Infectious Diseases [Guanyu jiaqiang
chuanranbing zhi gongzuo de tongzhi], art. 4, issued 13 May 2003, with
Notice Regarding Strictly Prohibiting Utilizing the Internet to Produce
or Transmit Harmfull or False Information [Guanyu yanjin liyong
hulianwang zhizuo, chuanbo youhai he bushi deng xinxi de gonggao],
issued 3 May 2003 by the Shanghai Municipal Government Coordination
Working Group Focusing on the Elimination and Rectification of Harmfull
Information on the Internet. See also Congressional-Executive
Commission on China Roundtable, Dangerous Secret: SARS and China's
Health Care System, Testimony and written statement of Bates Gill: For
the time being, it appears the mainland's initial denial and slow
response to the SARS outbreak characterizes a political environment
where individual initiative is discouraged and social stability is
protected above other interests, to the detriment of social safety.
(2 September
2003).
\168\ See, e.g., ``Editorial: Sharing Health Info with the
Public,'' China Daily, 27 August 2003, (27 August 2003): The outcome
would have been hard to imagine, had Beijing not shared information
with the public and the rest of the world and ordered a nationwide
mobilization.
But on the other hand, had local and national health authorities
acted more resolutely and shared information with the public in a more
timely manner, the epidemic may well have been contained within the
borders of Guangdong Province, where SARS was first reported in China.
See also, Ray Cheung, ``Investigative Newspaper's Virus Reports `Are
Being Censored,' '' South China Morning Post, 9 May 2003,
, and ``China Gags SARS Talk on Net,'' South China
Morning Post, 7 April 2003, , citing AFP Beijing; Xue
Baosheng, ``Valuable Lesson for Government to Learn,'' China Daily, 6
June 2003,
(15 August 2003); Shu Xueshan, ``A Test for Government and the Media''
[Kaoyan zhengfu yu meiti], Jinyang Net [Jinyang wang] (the online
version of the Yangcheng Evening News [Yangcheng wanbao]), 15 February
2003,
(15 August 2003).
\169\ For a detailed discussion of the role of information control
in the spread of SARS, see the Congressional-Executive Commission on
China Topic Paper ``Information Control and Self-Censorship in the PRC
and the Spread of SARS,'' 7 May 2003.
\170\ ``An Individual Spreading Rumors that `An Unknown Epidemic is
Spreading in Beijing' is Arrested'' [Wangshang sanbu ``Beijing you
buming jiqing yanman'' yaoyanzhe beibu], People's Daily [Renmin wang],
23 April 2003, citing the Beijing Youth Daily [Beijing Qingnian bao]
(15 August
2003).
\171\ ``Two Chinese Editors Sacked Over Confidential SARS
Document,'' South China Morning Post, 29 April 2003, ,
citing Agence France-Presse, Beijing.
\172\ Richard McGregor, ``China Moves to Control Liberal Paper,''
Financial Times, 4 May 2003, (5 May
2003).
\173\ ``China censors CNN SARS Report,'' CNN, 15 May 2003, (2 September
2003).
\174\ ``Media and Academics `Gagged by Officials' over SARS,''
South China Morning Post, 2 July 2003, .
\175\ Congressional-Executive Commission on China Open Forum
Roundtable on Human Rights and the Rule of Law in China, 9 December
2002, Testimony, written statement, and transcript of Joan Mower.
\176\ Regulations for the Management of Ground Satellite Television
Broadcasting Receptors [Weixing dianshi guangbo di mianjie shoushe shi
guanli guiding], issued 5 October 1993, art. 2; Detailed Implementing
Regulations for the Management of Ground Satellite Television
Broadcasting Receptors [Weixing dianshi guangbo dimianjie shoushe shi
guanli guiding shishi xize], issued 2 March 1994, art. 6.
\177\ Interim Measures Concerning the Examination, Approval and
Regulation of Transmission of Foreign Satellite Television Channels in
China [Jingwai weixingdian shipin daoluo dishen piguan lizhanxing
guiding], issued 26 December 2001.
\178\ ``CNN Broadcast to China Cut,'' USA Today, 30 June 2003,
(15 August 2003), citing Associated Press.
\179\ See, e.g., Congressional-Executive Commission on China
Roundtable, China's Cyber-Wall: Can Technology Break Through?, 4
November 2002, testimony and written statements of Avi Rubin, Co-
founder, Publius, a Web publishing system that resists censorship and
provides publishers with anonymity; Bill Xia, President, Dynamic
Internet Technology Inc.; Lin Hai, computer scientist from Shanghai,
served 2 years in prison for distributing Chinese e-mail addresses to a
dissident on-line magazine; Paul Baranowski, chief architect for the
Peekabooty project, which seeks to bypass censorship of the World Wide
Web.
\180\ See, e.g., ``CIC Press Conference: Corporate America's Role
in China's Building of an `E-Police' State,'' 17 June 2003, (8 September 2003).
\181\ Larry X. Wu, ``[W]e have our own understanding of what is a
limitation of the freedom of speech. So we do use techniques to block
certain Web sites . . . .'' Second Secretary for Science and Technology
at the Embassy of the People's Republic of China in Washington, DC,
quoted in Patrick Di Justo ``Does the End Justify the Means?''
Wired.com, 18 March 2003, (15 August 2003). See also Keith J. Winstein,
``China Blocks MIT Web Addresses,'' The Tech, 22 November 2002, Volume
122, Number 58,
(28 August 2003): ``A spokesperson for the Chinese embassy in
Washington . . . confirmed that China was blocking access to MIT Web
sites, but said neither he nor his colleagues in China knew why it was
imposed.''
\182\ ``Phonetics Institute Achieve Advance in Computer Language
Comprehension Technology,'' [Shengxuesuo jisuanji yuyan lijie jishu
qude jinzhan] Announcement on the Phonetics Institute, Chinese Academy
of Sciences Web site, 18 February 2003, (28 August 2003).
\183\ China Internet Network Information Center [Zhongguo
hulianwang luxin xizhongxin], ``China Internet 2002 Annual Report''
[Zhongguo hulian wanglu 2002 nianjian], (15 August 2003).
\184\ See, e.g., ``15 Year Old Youth Making Reactionary Expression
on the Internet is Subject to Administrative Punishment'' [15 sui
shaonian wangshang fabu fandong yanlun shou chufa], People's Daily
[Renmin wang], 10 July 2003.
\185\ For a thorough study of how BBSs in China are censored, see
Reporters Without Borders, ``Living Dangerously on the Net: Censorship
and Surveillance of Internet Forums,'' 12 May 2003, (15 August 2003).
\186\ For example, one Internet forum that the Commission has been
monitoring first went down in early July 2003, saying it was ``under
malicious attack.'' It came back up for a short period at the end of
July, with the moderator citing ``content problems'' as one of the
possible reasons for the site having been taken down, and warning
posters that ``. . . `[Forum name]' warmly welcomes you to join,
provided you observe the principles of `a united motherland, harmony
between peoples, and obedience of the law.' '' Cases where the
government has shut down BBSs for political content include ``Sleepless
Night'' [Bumei zhiye], and ``Study and Thought'' [Xue er si]. See also
Kathy Chen, ``China Cracks Down on Growing Debate Over Political
Reform,'' The Wall Street Journal, 24 September 2003, (24 September
2003) (discussing how in September 2003 Chinese authorities ordered
four Web sites that posted articles on political and constitutional
reforms to close because the sites--www.caosy.com,
www.libertas2000.net, www.xianzheng.net, and www.cc-forum.com--were not
registered and did not have business licenses).
\187\ See, e.g., Rules for the Protection of Secrets in News
Publishing [Xinwen chuban baomi guiding], issued 13 June 1992, art 15:
Anyone wishing to provide a foreign news publishing organization a
report or publication with contents that relate to the nation's
government, economy, diplomacy, technology or military shall first
apply to their unit or their supervising organ or unit for examination
and approval. See also Law on the Protection of State Secrets [Baoshou
guojia mimifa], issued 25 April 1990, art 8.
\188\ See, e.g., ``If a Nanny Can Disclose State Secrets, Then
Average Citizens Should Raise Their Awareness of Preserving Secrets''
[Baomu jingran toulu guojia jimi, baixin yexu tigao baomi yishi],
People's Daily [Renmin wang], 5 September 2003, http://
www.people.com.cn/GB/shizheng/1026/2073981.html (citing the Guangzhou
Daily [Guangzhou ribao]), emphasizing how anyone from Internet users to
garbage collectors can run afoul of China's state secrets legislation.
For a more detailed discussion of China's state secrets and national
security laws, see the Congressional-Executive Commission on China
Topic Paper, ``Information Control and Self-Censorship in the PRC and
the Spread of SARS,'' 7 May 2003.
\189\ ``People's Republic of China: State Control of the Internet
in China,'' Amnesty International Document: ASA 17/007/02, (15 August 2003).
\190\ See, e.g., Reporters Without Borders, ``2003 Annual Report:
China,'' (15 August
2003); Committee to Protect Journalists, ``Attacks on the Press in
2002: China,'' (15
August 2003).
\191\ See, e.g., China Detains Dissident over Reform Call, CNN.com,
9 January 2003, (9 January 2003).
\192\ Wang Shulin, ``Xinjiang Hears Case of Incitement of
Subversion Against the State'' [Xinjiang shenli yilie shandong dianfu
guojia zhengquanan], China Court Web [Fayuan hulianwang], 16 February
2003, (15 August 2003).
\193\ The accounts of the accusations against Huang Qi are based on
copies of official government documents made available by his
supporters at (19 May 2003--now defunct).
\194\ The accounts of the accusations against these individuals are
based on copies of official government documents available at (19 May 2003).
\195\ ``15-Year-Old Youth Making Reactionary Expression on the
Internet is Subject to Administrative Punishment'' [15 sui shaonian
wangshang fabu fandong yanlun shou chufa], People's Daily [Renmin
wang], 10 July 2003, (15 August 2003).
\196\ See, e.g., ``Congressional-Executive Commission on China
Selected Legal Provisions of the People's Republic of China Affecting
the Free Flow of Information,'' available at .
\197\ Congressional-Executive Commission on China Roundtable,
Voices of the Small Handful: 1989 Student Movement Leaders Assess Human
Rights in Today's China, 2 June 2003, Testimony of Wang Dan.
\198\ Population Census Office Under the State Council, Tabulation
on the 2000 Population Census of the People's Republic of China, vol.
3, chart 6-1 (Beijing: China Statistics Press, 2002), 1681.
\199\ ``New Guidelines for Over-Quota Child Fines,'' The U.S.
Embassy in Beijing Web site, (17 September 2003).
\200\ Bureau of Democracy, Human Rights, and Labor, U.S. Department
of State, ``Country Reports on Human Rights Practices--2002, China
(includes Hong Kong and Macau),'' 31 March 2003 (16 September 2003).
\201\ ``Basic Views and Policies Regarding Population and
Development,'' National Population and Family Planning Commission of
China Web site, (18 September
2003).
\202\ Congressional-Executive Commission on China Roundtable,
Women's Rights and China's New Family Planning Law, 23 September 2002,
Testimony of Bonnie Glick.
\203\ David Hsieh, ``China Relaxes Family Planning Controls With
Fine,'' The Straits Times, 19 January 2002, www.straitstimes.com.
\204\ Congressional-Executive Commission on China Roundtable,
Women's Rights and China's New Family Planning Law, 23 September 2002,
Testimony of Susan Greenhalgh.
\205\ Ibid.
\206\ The United Nations' Office of the High Commissioner for Human
Rights identifies HIV/AIDS as an undeniable human rights concern:
``There is clear evidence that where individuals and communities are
able to realize their rights--to education, free association,
information, and, most importantly, non-discrimination--the personal
and societal impact of HIV and AIDS are reduced. The protection and
promotion of human rights are therefore essential to preventing the
spread of HIV and to mitigating the social and economic impact of the
pandemic. In addition, Article 21 of the Chinese Constitution states,
``The state develops medical and health services, promotes modern
medicine and traditional Chinese medicine . . . all to protect the
people's health.''
\207\ See, e.g., Congressional-Executive Commission on China
Roundtable, HIV/AIDS in China: Can Disaster Be Averted?, 9 September
2002.
\208\ See, e.g., The Center for Strategic and International
Studies, ``Averting a Full-Blown HIV/AIDS Epidemic in China: A Report
of the CSIS HIV/AIDS Delegation to China, 13-17 January 2003,''
February 2003. The Commission staff also directly received this advice
from J. Stephen Morrison, Executive Director of the CSIS HIV/AIDS Task
Force, and Bates Gill, Freeman Chair in China Studies at CSIS.
\209\ Joint United Nations Programme on HIV/AIDS and World Health
Organization, ``AIDS Epidemic Update,'' December 2002, 7, (3 September 2003).
\210\ The Center for Strategic and International Studies,
``Averting a Full-Blown HIV/AIDS Epidemic in China: A Report of the
CSIS HIV/AIDS Delegation to China, 13-17 January 2003,'' February 2003,
2.
\211\ United Nations Theme Group on HIV/AIDS in China, ``HIV/AIDS:
China's Titanic Peril--2001 Update of the AIDS Situation and Needs
Assessment Report,'' June 2002, 7.
\212\ ``Chinese Vice Premier Meets UNDP Official,'' Xinhua, 5 July
2003, (3 September 2003).
\213\ CSIS, ``Averting a Full-Blown HIV/AIDS Epidemic in China: A
Report of the CSIS HIV/AIDS Delegation to China,'' 2.
\214\ Congressional-Executive Commission on China Roundtable, HIV/
AIDS in China: Can Disaster Be Averted?, 9 September 2002, Testimony of
Joan Kaufman, Visiting Scholar, East Asia Legal Studies Program,
Harvard Law School, and Bates Gill, Freeman Chair in China Studies,
Center for Strategic and International Studies.
\215\ See, e.g., ``Hundreds of Police Storm `AIDS Village' in
China, Arrest 13 Farmers,'' Agence France-Presse, 3 July 2003, in FBIS,
Doc ID CPP20030703000102; Agence France-Presse, ``Group Says China
Increased Arrests, Violence Against HIV Positive Protestors,'' 9 July
2003, in FBIS, Doc ID CPP20030709000038.
\216\ Human Rights Watch, ``China: Police Violence Against HIV-
Positive Protestors Escalates--Henan Authorities Deepen AIDS Cover-
up,'' 9 July 2003,
(3 September 2003).
\217\ ``China Starts Offering Free AIDS Drugs but Lacks Doctors to
Administer Them,'' Agence France-Presse, 14 July 2003, (12 August 2003).
\218\ Congressional-Executive Commission on China Roundtable, HIV/
AIDS in China: Can Disaster Be Averted?, 9 September 2002, Testimony of
Joan Kaufman, Visiting Scholar, East Asia Legal Studies Program,
Harvard Law School.
\219\ See, e.g., ibid.; Testimony of Bates Gill, Freeman Chair in
China Studies, Center for Strategic and International Studies.
\220\ China has included provisions for the protection and equality
of women in a succession of laws including the Constitution, Law of
Inheritance (1985), Compulsory Education Law (1986), Law on the
Protection of the Rights and Interests of Women (1992), Maternal and
Infant Health Care Law (1994); Labor Law (1994), Criminal Procedure Law
(1996), Criminal Law (1997), Adoption Law (1998), Marriage Law (2001,
as amended), Population and Family Planning Law (2001), and the Trade
Union Law (2001).
\221\ ``Woman Lawmaker Condemns Family Violence, Extramarital
Affairs,'' People's Daily (English edition), 8 March 2001, (23
September 2003).
\222\ ``Peng Peiyun Appealed to the 10th NPC to Amend the Law,''
All-China Women's Federation Web site, (28 August 2003).
\223\ Congressional-Executive Commission on China Roundtable,
Holding up Half the Sky: Women's Rights in China's Changing Economy, 24
February 2003, Testimony of Margaret Woo.
\224\ Ibid.
\225\ Cindy Sui, ``Beijing Woman Files Chinese Capital's First
Sexual Harassment Suit,'' Agence France Presse, 1 July 2003.
\226\ Holding up Half the Sky, Prepared Statement of Rangita de
Silva.
\227\ ``Family Violence Becomes Public Evil in China,'' Xinhua, 7
March 2003, (23
September 2003).
\228\ ``White Ribbons to End Violence Against Women in Beijing,''
People's Daily (Engilsh edition), 29 November 2002, (23 September 2003).
\229\ Bureau of Democracy, Human Rights, and Labor, U.S. Department
of State, ``Country Reports on Human Rights Practices--2002, China
(includes Hong Kong and Macau),'' 31 March 2003, (8 July 2003).
\230\ Holding up Half the Sky, Testimony of Rangita de Silva.
\231\ Ibid.
\232\ Peter Harmsen, ``China's Sex Workers Heading Blindly Towards
AIDS Catastrophe,'' Agence France Press, 29 November 2002, (23 September 2003).
\233\ Population Census Office, Tabulation on the 2000 Population
Census of the People's Republic of China, vol. 3, Chart 6-1
(Beijing:China Statistics Press: Beijing, 2002), 1,681.
\234\ Joe McDonald, ``China's Trade in Baby Girls Illicit But
Thriving,'' Associated Press, 25 March 2003.
\235\ Human Rights Watch, ``The Invisible Exodus: North Koreans in
the People's Republic of China,'' November 2002, (16 September 2003).
\236\ Congressional-Executive Commission on China Roundtable,
Clearing the Air: The Human Rights and Legal Dimensions of China's
Environmental Dilemma, 27 January 2002, Testimony of Elizabeth Economy,
C.V. Starr Senior Fellow and Director, Asia Studies, Council on Foreign
Relations.
\237\ Report of the U.S. Embassy in Beijing, ``The Cost of
Envrionmental Degradation in China,'' December 2000, (22
September 2003).
\238\ China's Environmental Dilemma, Written Statement of Elizabeth
Economy, C.V. Starr Senior Fellow and Director, Asia Studies, Council
on Foreign Relations.
\239\ Ibid., Testimony of Jennifer Turner, Senior Project Associate
for China, Woodrow Wilson Center.
\240\ Ibid., Written Statements of Elizabeth Economy, C.V. Starr
Senior Fellow and Director, Asia Studies, Council on Foreign Relations,
and Brian Rohan, Associate Director, American Bar Association Asian Law
Initiative.
\241\ Ibid., Testimony of Elizabeth Economy, C.V. Starr Senior
Fellow and Director, Asia Studies, Council on Foreign Relations.
\242\ Ibid., Testimony of Richard Ferris, Principal, Beveridge &
Diamond, PC.
\243\ Convention relating to the Status of Refugees, Adopted on 28
July 1951 by the United Nations Conference of Plenipotentiaries on the
Status of Refugees and Stateless Persons convened under General
Assembly resolution 429 (V) of 14 December 1950.
\244\ Joe Young, ``Hukou Reform Targets Urban-Rural Divide,'' The
China Business Review, May-June 2002, 32.
\245\ Ibid., 32-33.
\246\ See, e.g., ibid., 33; Nicolas Becquelin, ``Without Residency
Rights, Millions Wait in Limbo,'' South China Morning Post, 27 February
2003, (27 February
2003).
\247\ Human Rights in China, ``Institutionalized Exclusion: The
Tenuous Legal Status of Internal Migrants in China's Major Cities,'' 6
November 2002, ii, (2 September 2003).
\248\ Ibid., 77.
\249\ Hein Mallee, ``Migration, Hukou and Resistance in Reform
China,'' in Elizabeth J. Perry and Mark Selden (eds.), Chinese Society:
Change, Conflict and Resistance (London: Routledge, 2000), 85.
\250\ Charles Hutzler and Susan Lawrence, ``New Rules on Migrant
Workers Mark Major Policy Shift in China,'' The Wall Street Journal, 20
January 2003, (22
January 2003).
\251\ Nicolas Becquelin, ``Without Residency Rights, Millions Wait
in Limbo,'' South China Morning Post, 27 February 2003, (27 February 2003).
\251\ See, e.g., ``Japanese Daily: 30 `Refugees' Sent Back to DPRK
in Late January,'' Choson Ilbo, translated in FBIS, Doc. ID:
KPP20030409000094, 10 April 2003.
\253\ Nick Young, ``Searching for Civil Society,'' 250 Chinese NGOs
(China Development Brief 2001), 9.
\254\ Julia Greenwood Bentley, ``The Role of International Support
for Civil Society Organizations in China,'' Harvard Asia Quarterly,
Winter 2003), 11.
\255\ Congressional-Executive Commission on China Roundtable, To
Serve the People: NGOs and the Development of Civil Society in China,
24 March 2003, Testimony of Ma Qiusha. This report uses the term non-
governmental organizations (NGOs) to refer to groups and organizations
in civil society, but others reject the term in the context of China
and prefer to use instead ``non profit organizations'' (NPOs) or
``civil society organizations'' (CSOs). See Bentley, at 11; see also
To Serve the People, Testimony of Ma Qiusha, for a discussion of terms,
definitions and the different kinds of NGOs that exist in China.
\256\ See U.S. Embassy Beijing, ``Chinese NGO's--Carving a Niche
Within Constraints,'' January 2003, (19 February 2003).
\257\ Ibid., 2.
\258\ See Congressional-Executive Commission on China Roundtable,
Clearing the Air: The Human Rights and Legal Dimensions of China's
Environmental Dilemma, 27 January 2003, Testimony of Jennifer Turner.
\259\ Regulations on Legal Aid [Falu yuanzhu tiaoli], issued 16
July 2003, arts. 7-9. An official Chinese commentator stressed that
legal aid contributions and services from non-governmental
organizations would be keys in providing legal services to the
underprivileged. ``Law, How it Becomes a Consumable of the Weak''
[Falu, ruhe chengwei ruozhe de xiaofepin], Procuratorate Daily [Jiancha
ribao], 18 August 2003, (22
August 2003).
\260\ See Congressional-Executive Commission on China Roundtable,
To Serve the People: NGOs and the Development of Civil Society in
China, 24 March 2003, Testimony of Nancy Yuan; U.S. Embassy Beijing,
``Chinese NGOs--Carving a Niche Within Constraints,'' January 2003,
(19 February
2003) (``All knowledgeable interlocutors in China believe that the
emergence of the Falun Gong movement, and the government's crackdown
against it, significantly slowed the process of drafting and approving
new NGO registration rules.'').
\261\ Congressional-Executive Commission on China Roundtable,
Clearing the Air: The Human Rights and Legal Dimensions of China's
Environmental Dilemma, 27 January 2003, Testimony of Jennifer Turner.
\262\ See, e.g., Congressional-Executive Commission on China
Roundtable, To Serve the People: NGOs and the Development of Civil
Society in China, 24 March 2003, Testimony of Ma Qiusha; U.S. Embassy
Beijing, ``Chinese NGO's-Carving a Niche Within Constraints,'' January
2003, (19
February 2003); and Julia Greenwood Bentley, ``The Role of
International Support for Civil Society Organizations in China,''
Harvard Asia Quarterly, (Winter 2003), 13. The main regulations
governing the registration and operation of social organizations in
China is the Regulations for Registration and Management of Social
Organizations [Shehui tuanti dengji guanli tiaoli], issued 25 September
1998.
\263\ NGOs may also register with the local Civil Affairs bureau.
For ease of discussion, we will just use MOCA as representative of the
Civil Affairs bureaucracy, whether national or local.
\264\ See Julia Greenwood Bentley, The Role of International
Support for Civil Society Organizations, Harvard Asia Quarterly (Winter
2003).
\265\ Edward Gargan, ``China Cracks Down on Clubs; Lit Study Group,
Anglers Among Those Dissolved,'' 22 June 2003, Newsday, (23 June 2003);
``Shutting Down Social Organizations Is Not an Administrative
Punishment'' [Zhuxiao shetuan bushu xingzheng chufa], Jinghua Ribao, 20
June 2003, (10
July 2003).
\266\ Professor Liang Congjie founded Friends of Nature in 1994. By
2001, it had over 1,200 members and had engaged in a wide range of
activities, from publishing a seven-volume series on environmental
issues to campaigning for the banning of logging in Yunnan. See Julia
Greenwood Bentley, The Role of International Support for Civil Society
Organizations, Harvard Asia Quarterly (Winter 2003), 13.
\267\ Human Rights in China Press Release, ``Activist Writer Wang
Lixiong Dismissed from Environmental Group,'' 14 February 2003.
According to a knowledgeable source, the Board of Friends of Nature had
apparently asked Wang to resign, but he refused. Wang wanted to be
fired, so that it neither be, nor appear to look, voluntary and
compliant.
\268\ See Bentley, 14 (``In the absence of significant tax
incentives for charitable donations by either corporations or
individuals, it is very difficult for CSOs [civil society
organizations] to raise funds domestically.'').
\269\ See Congressional-Executive Commission on China Roundtable,
To Serve the People: NGOs and the Development of Civil Society in
China, 24 March 2003, Testimony of Nancy Yuan. See also
--an impressive resource about domestic
and international NGOs working in China.
\270\ Multinational corporations such as Nike, Adidas, Reebok, Levi
Strauss, Microsoft, Ford Motor Company and General Motors have also
invested in China's civil society by supporting a wide range of
activities, including for example, health and education programs, rule
of law efforts and poverty alleviation projects. See Congressional-
Executive Commission on China Roundtable, To Serve the People: NGOs and
the Development of Civil Society in China, 24 March 2003, Written
statement of Nancy Yuan.
\271\ Bureau of Democracy, Human Rights, and Labor, U.S. Department
of State, ``Country Reports on Human Rights Practices--2002, China
(includes Hong Kong and Macau),'' 31 March 2003 (8 July 2003). The government-
established China Society for Human Rights does not monitor human
rights conditions in China, but rather defends China's record and views
on human rights.
\272\ U.S. Embassy Beijing, ``Chinese NGOs--Carving a Niche Within
Constraints,'' January 2003, (19 February 2003).
\273\ Julia Greenwood Bentley, The Role of International Support
for Civil Society Organizations, Harvard Asia Quarterly (Winter 2003),
1.
\274\ Constitution of the People's Republic of China, art. 57.
\275\ See, e.g., Delegate Law of the National People's Congress and
Various Levels of Local People's Congresses [Zhonghua renmin gongheguo
quanguo renmin daibiao dahui he difang geji renmin daibiao dahui
daibiao fa], enacted 3 April 1992, arts. 1-3; Election Law of the
National People's Congress and Various Levels of Local People's
Congresses [Zhonghua renmin gongheguo quanguo renmin daibiao dahui he
difang geji renmin daibiao dahui xuanju fa], enacted, 1 July 1979,
arts. 1-4; Organic Law of the National People's Congress [Zhonghua
renmin gongheguo quanguo renmin daibiao dahui zuzhi fa], enacted 10
February 1982; Organic Law of the Various Levels of Local People's
Congresses and Governments [Zhonghua renmin gongheguo difang geji
renmin daibiao dahui he difang geji renmin zhengfu zuzhi fa], enacted 1
July 1979.
\276\ Peter Howard Corne, ``Creation and Application of Law in the
PRC,'' Am. J. of Comp. L. (2002): 369, 378.
\277\ Constitution of the People's Republic of China, art. 60;
Election Law of the National People's Congress, ch. 3.
\278\ Organic Law of the National People's Congress, arts. 1-4.
\279\ Perry Keller, ``The National People's Congress and the Making
of National Law,'' in Law-Making in the People's Republic of China
(Boston: Kluwer Law International, 2000).
\280\ See Murray Scot Tanner, ``The National People's Congress'' in
Merle Goldman and Roderick MacFarquhar (eds.) The Paradox of China's
Post-Mao Reforms (Cambridge, MA: Harvard University Press 1999), 101.
\281\ People's Republic of China Legislation Law [Zhonghua renmin
gongheguo lifa fa], enacted 15 March 2001, art. 7.
\282\ Ibid., ch. 2.
\283\ Organic Law of the National People's Congress, ch. 2.
\284\ The 2003 announcement stated that ``the National People's
Congress establishes an ethnic specialized committee, a law specialized
committee, an internal judicial committee, a finance and economics
committee, an education, science, culture and healthcare committee, a
foreign affairs committee, an overseas Chinese committee, an
environmental and natural resources protection committee, and a
agricultural enterprise and village committee.'' The decision of the
10th National People's Congress on the Establishment of Specialized
Committees [Dishijie quanguo renmin daibiao dahui diyi ci huiyi guanyu
sheli dishijie quanguo renmin daibiao dahui zhuanmen weiyuanhui de
jueding], issued 6 March 2003, (14 August 2003).
\285\ Legislation Law, ch 2.
\286\ Corne, ``Creation and Application of Law in the PRC,'' 279.
\287\ Legislation Law, arts. 34 and 35.
\288\ One noted case in which the NPC did in fact solicit public
opinion was in the drafting of amendments for the Marriage Law of 2001.
``Public Replies to New Marriage Law,'' People's Daily (English
edition), 2 March 2001, (25 September 2003).
\289\ See, e.g., Young Nam Cho, ``From `Rubber Stamps' to `Iron
Stamps': The Emergence of Chinese Local Congresses as Supervisory
Powerhouses,'' China Quarterly 171 (2002): 724.
\290\ Constitution of the People's Republic of China, ch. 5.
Certain areas, such as Tibet (Xizang), Xinjiang, Inner Mongolia, and
the Shenzhen special economic zone, have special legislative powers
superior to those of other provincial and directly administered
municipalities. The local congresses in these areas have the power,
within their specific NPC mandates, to enact legislation that conflicts
with the law promulgated by the NPC and NPSC. Legislation Law, ch. 4,
sec. 1.
\291\ Legislation Law, art. 68.
\292\ Commission Staff Interview.
\293\ Ibid.
\294\ Ibid.
\295\ Ibid.
\296\ Ibid.
\297\ Congressional-Executive Commission on China 2002 Annual
Report.
\298\ Zhang Tingting, ``The Public Solicited for Legislative Items
and Drafts,'' China Internet Information Network, 12 August 2002,
(24 September 2003).
\299\ Ibid.
\300\ Alex Xu, ``Nine Proposals by Public Representatives Adopted
in Sichuan,'' China Internet Information Network, 3 January 2002,
(24 September 2003).
\301\ ``Citizens Invited to Participate in Lawmaking in SW China
Province,'' Xinhua, 25 December 2002, (24 September 2003).
\302\ ``Zhejiang: Citizens Have the Right to Attend Provincial
People's Congress Meetings,'' Zhejiang Daily [Zhejiang Ribao], 28 June
2003, (14 August 2003).
\303\ Conclusions from Commission staff observation of village
elections.
\304\ Constitution of the People's Republic of China, art. 89
(1982).
\305\ Ibid., art. 89.
\306\ Peter Howard Corne, ``Creation and Application of Law in the
PRC,'' Am. J. of Comp. L. (2002): 381.
\307\ See generally Organic Law of the State Council of the
People's Republic of China [Zhonghua renmin gongheguo guowuyuan zuzhi
fa], enacted 10 December 1982; Constitution of the People's Republic of
China, sec. 3.
\308\ The State Council set legislative competence as a high
priority in 1998 even before the National People's Congress enacted the
Legislation Law for that specific purpose. General Office of the State
Council, Notice on Several Opinions Regarding Improving the Legislative
Work of the State Council and the 1998 State Council Legislative Plan
[Guanyu yin fa guowuyuan lifa gongzuo ruogan yijian he 1998 nian lifa
gongzuo anpai de tongzhi] in The State Council Gazette [Guowuyuan
gongbao], No. 14 (1998): 588-91 (stating that the goal of improving
government legislation is a central component of Deng Xiao Ping theory
and the basic CCP line of thought).
\309\ ``Specialists' Discussion: The Ministry of Commerce and a New
Era of Trade'' [Zhuanjia fangtan: shangwu bu zhuzheng xin maoyi
shidai], People's Daily [Renmin wang], 3 March 2003, (1 July 2003).
\310\ Wen Lei Ma et. al., ``The State Capital Commission, the
Banking Supervision Commission, and the Ministry of Commerce'' [Guozi
wei, yinjian hui, shangwu bu deng si bumen fuxian], People's Daily
[Renmin wang] 7 March 2003, (1 July 2003).
\311\ Ibid.
\312\ ``Shenzhen to Lead PRC's Pilot Reform Toward `Tripartite
Administration,' '' Shanghai Wenhui Bao, translated in FBIS, Doc. ID
CPP20030203000034 (30 January 2003).
\313\ Ibid.
\314\ Within the listed categories, only Jiangsu Province, the
Tibet Autonomous Region, Lhasa (the capital of the Tibet Autonomous
Region), and Nanning City (the capital of Guangxi Autonomous Region)
did not have Web sites when this report went to print. See ``CECC E-
Government Directory'' (14 August 2003).
\315\ Beijing Municipality, Chongqing Municipality, Fujian
Province, and Anhui Province provide links to draft legislation on
their Web sites. See (14 August 2003).
\316\ Five Year People's Court Reform Plan, Legal Daily [Fazhi
ribao], 23 October 1999, translated in FBIS Doc. ID CPP20000505000668.
\317\ Constitution of the People's Republic of China, arts. 57, 58,
62, 67.
\318\ Stanley Lubman, Bird in a Cage: Legal Reform in China After
Mao (Stanford: Stanford University Press, 1999), 282.
\319\ For example, the Minister of Public Security is the current
head of the CCP's national Political-Legal Committee. See John Pomfret,
``Child's Death Highlights Problems in Chinese Criminal Justice,''
Washington Post, 3 July 2003.
\320\ ``New `Enforcement Notices' Designed to Increase Legal
Transparency,'' Xinhua (English edition), in FBIS, Doc ID:
CPP20030703000060.
\321\ Supreme People's Court 2003 Work Report, 11 March 2003;
Supreme People's Court Opinions on Strengthening the Construction of
Grassroots People's Courts [Zuigao renmin fayuan guanyu jiaqiang renmin
fayuan jiceng jianshe de ruogan yijian], issued 13 August 2000].
\322\ Lubman, Bird in a Cage, 253.
\323\ These figures include judges who hold degrees in any subject,
not necessarily law. For number of judges in China at the end of 2002,
see ``PRC's Top Judge Xiao Yang: Numbers of Judges to be Cut Back,''
Xinhua, 7 July 2002, translated in FBIS, Doc. ID CPP20020707000050. For
the number of judges in China in 1998 and their educational level, see
1998 Law Yearbook of China [1998 Zhongguo falu nianjian], (Beijing: Law
Yearbook of China Press, 1998), 71. According to Chinese sources, in
the five-year period ending in February 2003, the number of judges
holding graduate degrees increased from 1,591 to 3,774 and the number
of judges holding four-year college degrees increased from 52,117 to
82,764. ``Chinese Courts Have 3,774 People with Ph.Ds: Judicial Ranks
Stride Towards Professionalization,'' [Zhongguo fayuan you boshi 3,774
ren, fayuan duiwu maixiang zhiyehua], Isinolaw, 4 April 2003, (17 June 2003).
\324\ Supreme People's Court 2003 Work Report, 11 March 2003;
Supreme People's Court Opinions on Strengthening the Construction of
Grassroots People's Courts [Zuigao renmin fayuan guanyu jiaqiang renmin
fayuan jiceng jianshe de ruogan yijian], issued 13 August 2000.
\325\ Randall Peerenboom, China's Long March toward Rule of Law,
(Cambridge, U.K.: Cambridge University Press, 2002), 290.
\326\ ``PRC's Top Judge Xiao Yang: Numbers of Judges to be Cut
Back,'' Xinhua, 7 July 2002, translated in FBIS, Doc. ID
CPP20020707000050; Veron Hung, ``China's Commitment on Independent
Judicial Review: An Opportunity for Political Reform,'' Working Paper,
Carnegie Endowment for International Peace, No. 32, November 2002, 11;
Shao Zongwei, ``Courts to Guarantee Fair Trials,'' 25 December 2002,
translated in FBIS, Doc. ID CPP20021225000028.
\327\ Jerome A. Cohen, ``Reforming China's Civil Procedure: Judging
the Courts,'' Am. J. of Comp. L. (1997): 802.
\328\ ``PRC Chief Justice Xiao Yang Promotes Concept of `People's
Justice,''' Xinhua, 24 August 2003, in FBIS, Doc. ID CPP20030824000055;
Xu Xun, ``Analysis on Relationship Between Chinese Media and the
Judiciary,'' Legal Studies [Faxue Yanjiu], 10 December 2001, translated
in FBIS, Doc. ID CPP200112310000159; Bei Hu, Gary Cheung, and Fong Tak-
ho, ``Concern over Law and Order Efforts,'' South China Morning Post,
19 March 2003; Hung, ``China's Commitment on Independent Judicial
Review,'' 7.
\329\ Supreme People's Court 2003 Work Report, 11 March 2003.
\330\ Hu, Cheung, and Fong, ``Concern Over Law and Order Efforts.''
13 percent of delegates rejected the report and 7 percent abstained.
\331\ Commission Staff Interview.
\332\ People's Republic of China Judges Law [Zhonghua renmin
gongheguo faguan fa], enacted 28 February 1995, art. 9; Supreme
People's Court, Several Opinions on Strengthening the
Professionalization of the Judicial Corps [Zuigao renmin fayuan guanyu
jiaqiang faguan duiwu zhiyehua de ruogan yijian], issued 18 July 2002.
Judicial authorities held China's first national judicial examination
in the spring of 2002, but the passage rate was only 7 percent. Shi
Fei, ``Malfeasance in Judicial Exams Begins to Show: This Year Pattern
the Pattern is Changed'' [Si kaoshi biduan chulu: jin nian geng
fangshi], 21st Century World Herald [21 shiji huanqiu baodao], 13
January 2002.
\333\ ``China's Judges Must Pass Exam to Keep Jobs,'' Xinhua, 20
July 2001, in FBIS, Doc. ID CPP20010720000074.
\334\ Judges Law, art. 9; Supreme People's Court, Several Opinions
on Strengthening the Professionalization of the Judicial Corps; Tian
Yu, ``Judicial Professionalization: The New Image of Chinese Judges''
[Faguan whiyehua: zhongguo faguan xin xianxiang, 19 February 2003,
People's Daily [Renmin wang], (25 June 2003). Judges in this category
who are over the age of 40 must complete at least 6 months of college-
level legal training within this 5 year-period, while younger judges
must obtain a 4-year degree.
\335\ See, e.g., Measures (Experimental) on Appointing Presiding
Judges [Renmin fayuan shenpanzhang xuanren banfa], issued 11 July 2000.
\336\ Supreme People's Court 2003 Work Report, 11 March 2003.
\337\ Supreme People's Court Circular on on Enforcing PRC Judges
Law [Zuigao renmin fayuan guanyu guancheluoshi ``Zhonghua renmin
gongheguo faguanfa'' de tongzhi], issued 11 July 2001; Judicial
Training Regulations [Faguan peixun tiaolie], issued 20 October 2000.
\338\ See, e.g., Randall Peerenboom, China's Long March toward Rule
of Law, (Cambridge: Cambridge University Press, 2002), 321.
\339\ Ibid., 295; Veron Hung, ``China's Commitment on Independent
Judicial Review: An Opportunity for Political Reform,'' Working Paper,
Carnegie Endowment for International Peace, No. 32, November 2002, 12;
Stanley Lubman, Bird in a Cage: Legal Reform in China After Mao
(Stanford: Stanford University Press, 1999), 279-80.
\340\ See, e.g., Supreme People's Court, Methods on Strict
Observance of the Recusal System [Zuigao renmin fayuan, guanyu shenpan
renyuan yange zhixing huibi zhidu de ruogan guiding], issued 31 January
2001; People's Republic of China Basic Code of Professional and Ethical
Conduct for Judges [Zhonghua renmin gongheguo faguan zhiye daode jiben
zhunze], issued 18 October 2001; Amendments to the Judges Law [Faguan
fa], enacted in 2001; Measures (Experimental) on Courts Enforcing Work
Discipline [Renmin fayuan zhixing gongzuo jilu chufen banfa (shixing)],
issued 12 September 2002; Several Provisions on Strictly Enforcing the
Relevant Punishment Systems of the PRC Judges Law [Zhigao renmin fayuan
guanyu yange zhixing ``Zhonghua renmin gongheguo faguanfa'' youguan
chengjie zhidu de ruogan guiding], issued 10 June 2003.
\341\ See, e.g., Xu Xun, ``Analysis on Relationship Between Chinese
Media and the Judiciary,'' Legal Studies [Faxue Yanjiu], 10 December
2001, translated in FBIS, Doc. ID CPP200112310000159; Fong Tak-ho,
``Judiciary to Undergo Anti-Graft Inspections,'' South China Morning
Post, 9 October 2002, ; ``PRC, Former Court President
Sentenced to 1 Years for Bribery, Illegal Gains,'' Xinhua, 6 July 2003,
translated in FBIS, Doc. ID CPP20030705000113.
\342\ See, e.g., Supreme People's Court, Work Reports, 1999-2003;
``Xiao Yang Says that People's Courts Should Strive to Do Six Tasks
Well,'' Xinhua, 11 March 2003, translated in FBIS, Doc. ID
CPP20030211000203.
\343\ Fong Tak-ho, ``Judiciary to Undergo Anti-graft Inspections.''
\344\ Provisional Measures on Liability for Judgments Not in
Accordance with the Law [Renmin fayuan shenpan renyuan weifa shenpan
zeren zhuijiu banfa], issued 4 September 1998.
\345\ Supreme People's Court, Several Provisions on Strictly
Enforcing the Relevant Punishment Systems of the Judges Law, ``The
Whole Country's Court System Begins a Major Judicial Inspection
[Quanguo fayuan xitong kaizhan sifa da jiancha],'' People's Daily
[Renmin wang], 20 June 2003, (25 June 2003).
\346\ Stanley Lubman, Bird in a Cage: Legal Reform in China After
Mao (Stanford: Stanford University Press, 1999), 288, 291; Colin Hawes,
``Dissent and Transparency in Recently Published Chinese Court
Judgments,'' Paper Presented at the Association of Asian Studies Annual
Meeting, New York, March 2003, 1.
\347\ Supreme People's Court, Reply on People's Courts Using
Standardized Legal Documents When Making Judgments [Zuigao renmin
fayuan guanyu renmin fayuan zhizuo falu wenshu renhe yinyong falu
guifanxing wenjian de pifu], issued 28 October 1986.
\348\ Lubman, Bird in a Cage, 39, 42; Hawes, ``Dissent and
Transparency in Recently Published Chinese Court Judgments,'' 1.
\349\ Supreme People's Court Notice Regarding the Promulgation of
``Forms for Criminal Judgments by People's Courts'' [Zuigao renmin
fayuan guanyu yinfa ``fayuan xingshi susong wenjian yangshi''], issued
30 April 1999.
\350\ Supreme People's Court, Measures on the Management of
Publication of Judgment Documents [Zuigao renmin fayuan panjue wenshu
gongbu guanli banfa], issued 15 June 2000.
\351\ Zhai Jianxiong, Judicial Information of the PRC: A Survey,
(1 October 2002).
\352\ See, e.g., . As of June 2003, the Supreme
People's Court Web site contained hundreds of typical case decisions.
\353\ Hawes, ``Dissent and Transparency in Recently Published
Chinese Court Judgments,'' 1, 13.
\354\ These include the Guangzhou Maritime Court and the Tianjin
High People's Court, and the Zhongyuan District Court in Zhengzhou.
Hawes, at 8; ``Tianjin Becomes First PRC Higher Court to Set Legal
Precedents,'' Xinhua, 1 August 2003, in FBIS, Doc. ID
CPP20030801000164.
\355\Supreme People's Court 2003 Work Report, 11 March 2003;
Supreme People's Court 2002 Work Report, March 2002; Randall
Peerenboom, China's Long March toward Rule of Law, (Cambridge:
Cambridge University Press, 2002), 294.
\356\ Supreme People's Court, Measures on the Management of
Publication of Judgment Documents, arts. 2(4) and 4.
\357\ Peerenboom, China's Long March Toward Rule of Law, 286.
\358\ Lubman, Bird in a Cage: Legal Reform in China After Mao
(Stanford: Stanford University Press, 1999), 12-13; Five-Year People's
Court Reform Plan, Legal Daily [Fazhi ribao], 2 October 1999, No. 1;
Supreme People's Court 2003 Work Report, 11 March 2003. In fact,
Chinese law provides for the Adjudication Committees and tasks them
with ``discussing'' important or difficult cases. Organic Law of the
People's Courts [Zhonghua renmin gongheguo renmin fayuan zuzhifa],
enacted 1 July 1979, amended 2 September 1983, art. 11.
\359\ Commission Staff Interview. Critics of the practice argue
when higher courts are consulted in this manner, they often reach
decision about the case before the parties have had an opportunity to
present arguments on appeal.
\360\ While some scholars report that this practice is on the
decline, others argue that recent rules imposing personal liability on
judges for wrongly decided cases have made it more common. Veron Hung,
``China's Commitment on Independent Judicial Review: An Opportunity for
Political Reform,'' Working Paper, Carnegie Endowment for International
Peace, No. 32, November 2002, 12; Peerenboom, China's Long March Toward
Rule of Law, 315.
\361\ Hung, ``China's Commitment on Independent Judicial Review: An
Opportunity for Political Reform,'' 8; Peerenboom, China's Long March
Toward Rule of Law, 311.
\362\ Ibid. at 9. Formally, people's congresses appoint court
presidents at the corresponding level, who then nominate assistant
judges. In practice, however, local governments and Party committees
control the appointment process.
\363\ Zhu Qiwen, ``Elevate Quality of Judges,'' China Daily, 9
March 2002, .
\364\ See, e.g., Supreme People's Court 2003 Work Report, 11 March
2003; Supreme People's Court 2002 Work Report, March 2002; Five Year
Plan for PRC Court Reform, Legal Daily [Fazhi ribao], 23 October 1999,
No. 1.
\365\ Peerenboom, China's Long March Toward Rule of Law, 303.
\366\ Ibid., 305.
\367\ Cohen, ``Reforming China's Civil Procedure,'' 797.
\368\ Stanley Lubman, Bird in a Cage: Legal Reform in China After
Mao (Stanford: Stanford University Press, 1999), 264.
\369\ Cohen, ``Reforming China's Civil Procedure,'' 798.
\370\ Ibid.; Lubman, Bird in a Cage, 252. PLCs typically exert
their influence through court presidents, which sit on the PLCs, or by
making a direct ``recommendation'' to judges. Hung, ``China's
Commitment on Independent Judicial Review,'' 8.
\371\ Peerenboom, China's Long March Toward Rule of Law, 307.
\372\ Constitution of the People's Republic of China,, arts. 67(6),
129; People's Republic of China Organic Law of the People's
Procuratorates [Zhonghua renmin gongheguo renmin jianchayuan zuzhifa],
enacted 1 July 1979, arts. 5-6; People's Republic of China Criminal
Procedure Law [Zhonghua renmin gongheguo xingshi susongfa], enacted 1
July 1979, art. 8, chapter V; People's Republic of China Civil
Procedure Law [Zhonghua renmin gongheguo minshi susongfa], enacted 9
April 1991, arts. 185-6.
\373\ See, e.g., the working document of the 16th Party Congress,
stating that ``we should institutionally ensure that the judicial and
procuratorial organs are in a position to exercise adjudicative and
procuratorial powers independently and impartially in accordance with
the law.'' Documents of the 16th National Congress of the Communist
Party of China (Beijing: Foreign Languages Press, 2002), 43. See also
People's Court Reform Plan, Legal Daily [Fazhi ribao], 2 October 1999,
No. 1; Supreme People's Court 2003 Work Report, 11 March 2003.
\374\ Supreme People's Court 2003 Work Report; Peerenboom, China's
Long March Toward Rule of Law, 286.
\375\ Commission Staff Interview.
\376\ Peerenboom, China's Long March Toward Rule of Law, 286.
\377\ Constitution of the People's Republic of China, art. 126.
\378\ For importance of Party leadership, see, e.g., Xiao Yang,
``Vigorously Proceed with Professionalization Constructions of the Body
of Judges,'' Seeking Truth [Qiushi], 1 May 2003, translated in FBIS,
Doc. ID: CPP20021023000078; Supreme People's Court Opinions on
Strengthening the Construction of Grassroots People's Courts [Zuigao
renmin fayuan guanyu jiaqiang renmin fayuan jiceng jianshe de ruogan
yijian], issued 13 August 2000]; Five Year Plan for PRC Court Reform.
On the supervision of the NPC and the Procuratorate, see ``Senior
Procurator: Judicial Reforms should Support and Perfect Judicial
Independence with Chinese Characteristics'' [Gao jian: sifa gaige yao
jianchi he wanshan zhongguo tese de sifa duli], Xinhua, 12 June 2003.
\379\ See, e.g., Tian Yu, ``Supreme People's Court to Strengthen
Supervision and Guidance of Courts Nationwide in `Three Respects' ''
Xinhua, 2 April 2003, translated in FBIS, Doc. ID CPP20030404000058;
Supreme People's Court 2003 Work Report, 11 March 2003; Supreme
People's Court 2002 Work Report, March 2002.
\380\ Peerenboom, China's Long March toward Rule of Law, 282.
\381\ Veron Hung, ``China's Commitment on Independent Judicial
Review: An Opportunity for Political Reform,'' Working Paper, Carnegie
Endowment for International Peace, No. 32, November 2002, 18;
Commission Staff Interviews.
\382\ Peerenboom, China's Long March toward Rule of Law, 330.
\383\ Commission Staff Interview.
\384\ American Chamber of Commerce in the People's Republic of
China, ``WTO Implementation Report-Fall 2002,'' 2002, 12.
\385\ James Kynge, ``China's bold political reform,'' Financial
Times, 12 January 2003.
\386\ Ibid.
\387\ ``PRC Scholar on Shanghai's Decision To Introduce Press
Spokesman System,'' translated in FBIS, Doc. ID No. CPP20030605000068,
Hong Kong Ta Kung Pao (Internet Version-WWW) in Chinese 5 June 2003.
\388\ ``China-U.S. Trade Issues,'' CRS Report No. IB91121, 16 May
2003.
\389\ Regulations to Prohibit Local Protectionism in Market Economy
Activities [Guowuyuan jinzhi zai shichang jingji huodong zhong shixing
diqu fengsuo de guiding], issued 29 April 2001, arts. 1-3.
\390\ U.S. Chamber of Commerce, ``First Steps: a U.S. Chamber
Report on China's WTO Progress,'' September 2002, 5.
\391\ See Protocol on the Accession of the People's Republic of
China to the World Trade Organization, paras. 3, 8.2; Working Party
Report on the Accession of the People's Republic of China to the World
Trade Organization, para. 111.
\392\See ``China-U.S. Trade Issues,'' CRS Report No. IB91121, 16
May 2003, 9; U.S.-China Business Council, ``China's WTO Implementation:
a Mid-Year Assessment,'' 2 (2003).
\393\ Supreme People's Court, Regulations on Several Problems in
the Trial of Trade-Related Administrative Litigation Cases [Zuigao
renmin fayuan guanyu shenli guoji maoyi xingzheng anjian ruogan wenti
de guiding], issued 8 August 2002; Supreme People's Court Regulations
on the Application of Law in the Trial of Anti-Subsidy Administrative
Litigation Cases [Zuigao renmin fayuan guanyu shenli fan butie
xingzheng anjian ying yong falu ruogan wenti de guiding], issued 11
September 2002; Supreme People's Court Regulations on the Application
of Law in the Trial of Anti-Dumping Administrative Litigation Cases
[Zuigao renmin fayuan guanyu shenli fan qingxiao xingzheng anjian ying
yong falu ruogan wenti de guiding], issued 1 January 2003.
\394\ People's Republic of China Administrative Licensing Law
[Zhonghua renmin gongheguo xingzheng xukefa], enacted 27 August 2003.
\395\ Constitution of the People's Republic of China, arts. 57, 58,
62, 67.
\396\ Peter Howard Corne, ``Creation and Application of Law in the
PRC,'' American Journal of Comparative Law (Spring 2002), 409.
\397\ Organic Law of the People's Courts, art. 33. Under Article
33, the Supreme People's Court has the power to issue interpretations
of law that are binding on lower courts. However, the procedure and
scope of this power is not precisely defined.
\398\ Commission Staff Interview; Shen Kui, ``Is it the Beginning
or the End of the Era of the Run of the Constitution? Reinterpreting
China's `First Constitutional Case,' '' Pacific Rim Law & Policy
Journal 12 (January 2003), 200, 209-10; Randall Peerenboom, China's
Long March toward Rule of Law, (Cambridge: Cambridge University Press,
2002), 317.
\399\ Donald C. Clarke, ``Puzzling Observations in Chinese Law:
When Is a Riddle Just a Mistake? '' in Understanding China's Legal
System, Steven Hsu (ed.) (New York: New York University Press, 2003),
106.
\400\ Constitution of the People's Republic of China, art. 5.
\401\ See, e.g., Constitution of the Communist Party of China
(Adopted and Amended at the 16th National Congress of the Communist
Party of China, November 14, 2002), General Program; ``Build a Well-Off
Society in an All-Around Way and Create a New Situation in Building
Socialism with Chinese Characteristics,'' Jiang Zemin, Report to the
16th National Congress of the Communist Party of China, 8 November
2002.
\402\ People's Republic of China of Legislation Law [Zhonghua
renmin gongheguo lifa fa], enacted 15 March 2001, art. 90.
\403\ Shen Kui, ``Is it the Beginning or the End of the Era of the
Run of the Constitution? Reinterpreting China's `First Constitutional
Case,' '' 200, 209-10.
\404\ Commission Staff Interviews. One such case was brought in
Sichuan Province in April 2002, where a plaintiff sued the Chengdu
branch of the People's Bank, arguing that height requirements in the
bank's job advertisements violated his constitutional rights to equal
treatment under the law. The lawsuit was dismissed primarily on
technical grounds. ``Record of the Court Hearing of China's First
Constitutional Case on the Right to Equal Protection'' [``Zhongguo
xianfa pingdengquan di yi an'' tingshen tou lu], China Lawyer Net
[Zhongguo falu zixun wang], 12 December 2002, (20 June 2003).
\405\ Both Chinese and foreign observers attached significance to
Hu's choice of this occasion for his first major policy address.
\406\ ``Hu Jintao Stresses Moving Forward to Establish
Consciousness and Authority of the Constitution (Full Text) [Hu jintao
qiandiao jinyibu shuli xianfa yishi yu quanwei (fu quanwen),''
Chinanews.com [Zhongguo xinwen wang], 4 December 2002, (30 May 2003).
\407\ Zhai Wei ``Hu Jintao Stresses Importance of Study at CPC
Politburo's Group Study Session,'' Xinhua, 26 December 2002, translated
in FBIS, Doc. ID CPP20021226000099; Kathy Chen, ``Chinese Leaders
Consider Overhaul for the Constitution,'' The Wall Street Journal, 13
June 2003, .
\408\ Wang Leiming, Shen Lutao, and Zou Shengwen, ``Supervision: A
Force That Bears Witness to Democracy--Shining the Spotlight on Five
Bright Spots in the Supervision Work of the Ninth National People's
Congress,'' Xinhua, 2 February 2003, translated in FBIS, Doc. ID
CPP20030223000012.
\409\ Commission Staff Interview.
\410\ Ibid.
\411\ Along with efforts to control the outbreak of SARS, news and
debate about the Sun Zhigang case and its implications dominated the
Chinese media in May and June 2003.
\412\ Proposal to Examine the ``Measures for Custody and
Repatriation of Urban Vagrants and Beggars,'' Submitted to the National
People's Congress Standing Committee on 14 May 2003 [Guanyu shencha
``chengshi liulang qitao renyuan shourong yisong banfa de jueyishu''],
available at
(20 June 2003). The scholars argued that the regulations were illegal
because (1) under Articles 8 and 9 of the Legislation Law and Article 8
of the Administrative Punishments Law because the freedom of citizens
can only be restricted by law (not by administrative regulations such
as the Measures for Custody and Repatriation of Urban Vagrants and
Beggars) and (2) under Article 37 of China's Constitution, no citizen
may be arrested except with the approval of a people's procuratorate or
people's court, and unlawful deprivation of freedom by detention or
other means is prohibited. As such, the Measures were illegal under the
Article 87 of the Legislation Law, which states that administrative
regulations may not contravene the Constitution or the law.
\413\ Proposal Submitted to the Standing Committee of the National
People's Congress on Initiating a Special Investigation into the Sun
Zhigang Case and the Implementation of the Custody and Repatriation
System [Tiqing quanguo changweihui jiu Sun zhigang an ji shourong
yisong zhidu shishi zhuangkuang qidong tebie diaocha chengxu de
jianyishu], submitted to the National People's Congress, 22 May 2003,
available at (20
June 2003).
\414\ See, e.g., Erik Eckholm, ``Petitioners Urge China to Enforce
Legal Rights,'' New York Times, 2 June 2003 (quoting He Weifang and
petitioners); ``Hu Jintao Overseas Tour; Sun Zhigang Case Driving
Constitutional Change,'' Hong Kong Feng Huang Wei Shih Chung Wen Tai, 5
June 2003, translated in FBIS, Doc. ID CPP20030609000100.
\415\ ``Start with Respecting the Constitution [Cong zunzhong
xianfa kaishi]'' Southern Weekend [Nanfang zhoumo], 13 March 2003, 1.
\416\ Commission monitoring of legal newspapers and Web sites. In
June 2003, for example, a nongovernmental symposium on constitutional
amendment held by 40 well-known scholars put forth a series of five-
year and ten-year constitutional reform proposals to the NPC. ``Non-
Governmental Sector Submits to the Central Authorities a Proposal on
Constitutional Amendment: Forty Scholars Call for Abrogation of
Dictatorship,'' Hong Kong Ming Pao, 30 June 2003, translated in FBIS,
Doc. ID 20030708000048.
\417\ People's Republic of China Administrative Litigation Law
[Zhonghua renmin gongheguo xingzheng susong fa], enacted 4 April 1989,
arts. 2, 11. The law applies only to a range of ``concrete
administrative acts'' that target a specific person or entity, and not
to government acts that are binding generally. However, the scope of
the law has gradually been expanded under SPC Interpretations. See
Supreme People's Court Opinion on Several Questions Related to the
Implementing the PRC Administrative Litigation Law [Zuigao renmin
fayuan guanyu guanche zhixing ``zhonghua renmin gongheguo xingzheng
susongfa'' ruogan wenti de yijian], issued 11 June 1991, Section 1;
Supreme People's Court Interpretation on Several Problems in
Implementing the PRC Administrative Litigation Law [Zuigao renmin
fayuan guanyu zhixing ``zhonghua renmin gongheguo xingzheng susongfa''
ruogan wenti de jieshi], issued 24 November 1999.
\418\ Administrative Litigation Law, art. 11. Under the ALL, courts
also have the power to grant compensation to claimants. The right to
compensation was clarified by the SCL, which was enacted 5 years later.
\419\ People's Republic of China State Compensation Law [Zhonghua
renmin gongheguo guojia peichanfa], enacted 12 May 1994, art. 2.
\420\ Ibid., chapter 3. Both the scope of and process for criminal
compensation is more restrictive than that for administrative
compensation. For example, while administrative compensation claimants
may file their claims directly with a people's court as part of an
administrative lawsuit, criminal compensation claimants must first
petition the criminal justice organ that is accused of violating the
claimant's rights. Only if such claims are denied do claimants have a
right to review in a people's court, and even then review is conducted
by a ``people's court compensation committee,'' not by the court
itself. State Compensation Law, chapter 3.
\421\ Minxin Pei, ``Citizens vs. Mandarins: Administrative
Litigation in China'' The China Quarterly (1997), 385; Ding Yuechao,
et. al., State Compensation Law Principles and Practice [Guojia
peichangfa yuanli yu shiwu], (Beijing, 1998), 72. Note, however, that
if administrative regulations violate the Constitution or the law,
citizens can petition the NPC Standing Committee for such laws to be
annulled under Article 90 of the Legislation Law.
\422\ Commission Staff Interview.
\423\ Veron Hung, ``China's Commitment on Independent Judicial
Review: An Opportunity for Political Reform,'' Working Paper, Carnegie
Endowment for International Peace, No. 32, November 2002, 5-10; Kevin
O'Brien, ``Suing the Local State: Administrative Litigation in Rural
China,'' 4 November 2002 (draft paper on file with author); ``If You
Damage Things you Must Pay! A Look Back on Four Years of Implementing
the State Compensation Law, Commentary on Democracy and the Rule of Law
[Sunhai dongxi yao pei! Guojia peichangfa shishi si nian huimou, minzhu
fazhi shuping]'' People's Daily [Renmin Wang], 8 December 1999,
.
\424\ De Hengbei, ``An Analysis of Basic Concepts in the
Controversy over Seeking Criminal Liability of Lawyers'' [Lushi xingshi
zeren zhuijiu zhenglun de jichu guannian pingxi], Legal Daily [Fazhi
ribao], 16 January 2003.
\425\ Passage of the Administrative Litigation Law was hailed as a
positive reform by both Chinese and foreign legal observers. Pei,
``Citizens vs. Mandarins: Administrative Litigation in China,'' 832.
\426\ China Law Yearbooks, 1991-2002; Situation of Judgment Work
and the Building of Judicial Cadres of the People's Courts, 1998-2002
[1998-2002 nian renmin fayuan shenpan gongzuo he duiwu jianshe
qingkuang], (17 March
2003). From 13,006 cases in 1990, the number of Administrative
Litigation Law cases accepted in China grew to 52,596 in 1995 and
84,942 in 2002. 1991 China Law Yearbook [1991 Zhongguo falu nianjian],
(Beijing: China Law Yearbook Press, 1992), 933; 1996 China Law
Yearbook, 1055. In 2000 and again in 2002, there was a dip in the
number of ALL cases accepted. The Supreme People's Court has monitored
this situation closely and ordered courts in provinces that experienced
such decreases to study the causes and report to the SPC. Commission
Staff Interview.
\427\ See Pei, ``Citizens vs. Mandarins: Administrative Litigation
in China,'' 841-43; 2001 China Law Yearbook, 156. In 1995, for example,
the success rate was 36.7 percent. For 2001, it was 39.4 percent.
\428\ The lack of complete State Compensation Law statistics makes
a comprehensive evaluation of State Compensation Law implementation
difficult, but official Chinese sources report that the number of
criminal compensation cases accepted by the people's courts grew from
398 in 1996 to 2,818 in 2002, while the number of such cases accepted
for review by procuratorial offices increased from 379 to 1996 to 1,361
in 2001. See Situation of Judgment Work and the Building of Judicial
Cadres of the People's Courts, 1998-2002 [1998-2002 nian renmin fayuan
shenpan gongzuo he duiwu jianshe qingkuang], (17 March 2003); 1997 China Law Yearbook,
at 183; 2002 China Law Yearbook, at 184. There is some likely some
overlap in the number for criminal compensation cases accepted by the
courts and the procuratorate, since claimants may appeal to a people's
court compensation committee if the procuratorate denies their claims.
State Compensation Law, art. 13. Public security and procuratorial
organs review criminal compensation cases because claimants must first
petition the criminal justice organ that is accused of violating the
claimant's rights.
\429\ According to official sources, in 2001, people's courts
granted claimants compensation in about 22 percent of the 4,048
administrative compensation cases decided and in 34 percent of the
2,705 criminal compensation cases decided. 2002 China Law Yearbook, at
158.
\430\ Congressional-Executive Commission on China Roundtable, Rule
of Law in China: Lawyers without Law, 1 April 2003, Testimony of James
V. Feinerman, Georgetown University Law Center.
\431\ Foreign legal observers have criticized procedural
deficiencies in the Legislation Law review mechanism. Randall
Peerenboom, China's Long March toward Rule of Law, (Cambridge:
Cambridge University Press, 2002), 264-5. Indeed, Chinese scholars
concluded that the NPCSC was unlikely to act on the scholars' petition
in the Sun Zhigang case due to a lack of detailed procedures for
handling such petitions. The Commission is unaware of any
administrative regulations that have been formally overturned in
response to a citizen petition filed under the Legislation Law.
According to Commission sources, however, the NPC Standing Committee
has in some cases called local people's congresses and regulatory
agencies informally and suggested that local laws or regulations should
be repealed.
\432\ Constitution of the People's Republic of China, art. 33.
``Every citizen enjoys the rights and at the same time must perform the
duties prescribed by the Constitution and the law.''
\433\ See, e.g., Congressional-Executive Commission on China
Roundtable, Rule of Law in China: Lawyers without Law, 1 April 2003,
Testimony of Randall Peerenboom, Professor of Law, University of
California at Los Angeles.
\434\ Constitution of the People's Republic of China, Preamble.
\435\ ``Constitutional Governance: Selecting the Path of Modern
Political Civilization [Xianzheng: Xiandai zhengzhi wenming lujing de
xuanze],'' Guangming Daily [Guangming ribao], 13 August 2003, (13 August 2003).
\436\ ``Hu Jintao Stresses Moving Forward to Establish
Consciousness and Authority of the Constitution (Full Text)'' [Hu
jintao qiandiao jinyibu shuli xianfa yishi yu quanwei (fu quanwen)],
Chinanews.com [Zhongguo xinwen wang], 4 December 2002, (30 May 2003).
\437\ Vivian Pik-kwan Chan, ``Hu Uses Constitution to Tighten Grip
on Power,'' South China Morning Post, 20 January 2003, in FBIS, Doc. ID
CPP20030120000048; ``Nailene Chou Wiest, ``Hu Delivers on a Promise to
Uphold Rule of Law,'' South China Morning Post, 16 June 2003, in FBIS,
Doc. ID CPP20030616000085; Hugo Restall, ``Why China's Glass is Half
Full,'' The Wall Street Journal, 13 June 2002; Kevin O'Brien, ``Suing
the Local State: Administrative Litigation in Rural China,'' 4 November
2002 , (draft paper on file with author), at 19-20.
\438\ ``The Central Authorities Have Forbidden Media from Bringing
Political Reform and Constitutional Amendment to Discussion,'' Hong
Kong Xing Dao Ri Bao, 21 August 2003, translated in FBIS, Doc ID
CPP20030821000078.
\439\ According to one Commission source, for example, after the
State Council repealed the custody and repatriation regulations, legal
scholars filed a second petition with the NPC Standing Committee
arguing that regulations on re-education through labor should be
repealed. The legal arguments were reportedly similar to those make in
the petition on custody and repatriation. Reportedly, the NPC Standing
Committee denied the petition and authorities barred the Chinese media
from reporting on it.
\440\ See, e.g., commentary by Chinese legal scholar Xiao Han at
; Eckholm,
``Petitioners Urge China to Enforce Legal Rights.''
\441\ See generally Hearts and Minds: Information for Change
(24 September 2003);
Sweatshopwatch.org (24 September
2003); (24
September 2003).
\442\ See, e.g., Global Exchange China Campaign, , (24
September 2003); National Labor Committee for Worker and Human Rights,
``New Balance in China Freetrend Factory Shenzhen, Guangdong Province,
China'' (24 September 2003), Hong Kong Christian Industrial Committee
reports, (23 September
2003).
\443\ Business Roundtable, ``Corporate Social Responsibility in
China: Practices by U.S. Companies,'' 16 February 2000,
(24 September 2003).
\444\ See, e.g., Business for Social Responsibility, Issue Brief,
``Overview of Corporate Social Responsibility,'' ; see also
``Corporate Social Responsibility-What Does it Mean?'' Mallenbaker.net,
(24 September 2003).
\445\ Kenan Institute Corporate Social Responsibility Study Group,
Washington, DC.
\446\ Congressional-Executive Commission on China Roundtable, Codes
of Conduct: U.S. Corporate CompliancePrograms and Working Conditions in
Chinese Factories, 28 April 2003, Testimony of Doug Cahn.
\447\ See generally BRT Report.
\448\ Commission Staff Interview.
\449\ Congressional-Executive Commission on China Roundtable, Codes
of Conduct: U.S. Corporate Compliance Programs and Working Conditions
in Chinese Factories, 28 April 2003.
\450\ Social Accountability International, SA8000 Standard
Elements, Section 4, (24 September 2003).
\451\ Congressional-Executive Commission on China Roundtable, Codes
of Conduct: U.S. Corporate Compliance Programs and Working Conditions
in Chinese Factories, 28 April 2003, Testimony of Doug Cahn.
\452\ Congressional-Executive Commission on China Roundtable,
Freedom of Association for Chinese Workers, 7 July 2003, Testimony of
Phil Fishman.
\453\ Congressional-Executive Commission on China Roundtable,
Health and Safety in Chinese Workplaces, 7 November 2002, Testimony of
Han Dongfang.
\454\ Zhang Lifen, ``Dalai Lama: Holding out Hope,'' BBC, 4
February 2003, (9
July 2003). (``I am not seeking separation or independence of Tibet
from the People's Republic of China. All I want is a genuine self-rule
for Tibet within China. This is my `middle way' approach.'')
\455\ ``Tibetan Chairman Condemns Dalai's Separatist Acts,'' China
Daily, 13 November 2002, (9 July 2003). While attending the 16th CCP
Congress, the Chairman of the TAR government, Legchog, said, ``[T]he
Dalai Lama now adopts a new strategy of playing down separatist
sentiments while trumpeting the highest degree of autonomy of the so-
called `greater Tibet.' '' Legchog labeled the Dalai Lama's initiative
``another form of his separatist stance.'' Ibid.
\456\ People's Republic of China Regional National Autonomy Law
[Zhonghua renmin gongheguo minqu quyufa], enacted 31 May 1984, art 2.
``Regional autonomy shall be practiced in areas where minority
nationalities live in concentrated communities. National autonomous
areas shall be classified into autonomous regions, autonomous
prefectures and autonomous counties. All national autonomous areas are
integral parts of the People's Republic of China.''
\457\ Regional National Autonomy Law, art. 7.
\458\ Steven D. Marshall and Susette Ternent Cooke, Tibet Outside
the TAR: Control, Exploitation and Assimilation: Development with
Chinese Characteristics (Washington D.C.: self-published CD-ROM, 1997),
Table 7. The 13 areas total 2.24 million square kilometers (865,000
square miles).
\459\ Tibetan Government-in-Exile, ``Facts - Occupied Tibet,''
(13 August 2003).
``Background,'' (13 August
2003). ``Tibet at a Glance,'' (13
August 2003). The area of ``occupied Tibet'' is reported as 2.5 million
square kilometers (965,000 square miles) with Lhasa as the capital.
\460\ Department of State International Religious Freedom Report on
Tibet, 2003.
\461\ The Tibetan government-in-exile's representation of Tibet
exceeds the total area of Chinese-designated Tibetan autonomy by about
100,000 square miles. Aside from pockets of long-term Tibetan
settlement in Qinghai, most of that is made up of autonomous
prefectures or counties allocated to other ethnic groups. These include
the Nu, Lisu, Bai, and Naxi in Yunnan Province; the Yi and Qiang in
Sichuan Province; the Hui, Kazak, Mongol, and Yugur in Gansu Province;
the Hui, Tu, Salar, and Mongol in Qinghai Province; and, according to
some maps, Mongol in Xinjiang. Substantial Han Chinese populations are
also included, some established for centuries.
\462\ According to 1990 census data there were 4.6 million Tibetans
in China, of whom 4.3 million lived in autonomous Tibetan areas. More
than half of Tibetans living outside autonomous Tibetan areas were in
Haidong Prefecture and Xining, in Qinghai Province, where they make up
about 7 percent of the population. In parts of Gansu, Sichuan, and
Yunnan Provinces that the Tibetan government-in-exile represents as
``Tibet,'' but that are not within autonomous Tibetan areas, Tibetans
generally make up 1 percent or less of prefectural populations.
\463\ International Campaign for Tibet (ICT), (13 August 2003). Lodi Gyari is also the Executive
Chairman of ICT. ICT has offices in Washington, Amsterdam, and Berlin
and ``works to promote human rights and self-determination for Tibetans
and to protect their culture and environment.''
\464\ Tibetan Government-in-Exile, ``Statement by Special Envoy
Lodi Gyari, Head of the Delegation Sent by His Holiness the Dalai Lama
to China,'' 11 June 2003, (13 August 2003); ``Statement by Special Envoy Lodi
Gyari, Head of the Delegation,'' 28 September 2002, (13 August 2003).
\465\ In September 2002 the envoys met with United Front Work
Department Director Wang Zhaoguo in Beijing. In May 2003 the delegation
met Liu Yandong, Wang's successor as head of the UFWD. Ibid. The UFWD
is the Party organ charged with dealing with groups outside of the
Chinese communist mainstream, including ethnic and religious groups,
non-communist political parties, and non-Party leaders and
intellectuals.
\466\ In September 2002 the envoys met with Tibetans Ragdi and
Legchog (Chinese: Raidi and Lieque) in Lhasa. Ibid. Ragdi was then
Chairman of the TAR People's Congress and is now a Vice-chairman of the
NPC. Legchog was then Chairman of the TAR government and is now
Chairman of the Standing Committee of the TAR People's Congress. Both
are Deputy Secretaries of the TAR Party Committee.
\467\ Tibetan Government-in-Exile, ``Statement by Special Envoy
Lodi Gyari, Head of the Delegation,'' 28 September 2002,