[Joint House and Senate Hearing, 107 Congress]
[From the U.S. Government Publishing Office]
TAMING THE DRAGON: CAN LEGAL REFORM FOSTER RESPECT FOR HUMAN RIGHTS IN
CHINA?
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HEARING
before the
CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
__________
APRIL 11, 2002
__________
Printed for the use of the Congressional-Executive Commission on China
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CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
LEGISLATIVE BRANCH COMMISSIONERS
Senate House
MAX BAUCUS, Montana, Chairman DOUG BEREUTER, Nebraska, Co-
CARL LEVIN, Michigan Chairman
DIANNE FEINSTEIN, California JIM LEACH, Iowa
BYRON DORGAN, North Dakota DAVID DREIER, California
EVAN BAYH, Indiana FRANK WOLF, Virginia
CHUCK HAGEL, Nebraska JOE PITTS, Pennsylvania
BOB SMITH, New Hampshire SANDER LEVIN, Michigan
SAM BROWNBACK, Kansas MARCY KAPTUR, Ohio
TIM HUTCHINSON, Arkansas NANCY PELOSI, California
JIM DAVIS, Florida
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
Ira Wolf, Staff Director
John Foarde, Deputy Staff Director
(ii)
C O N T E N T S
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Page
STATEMENTS
Opening statement of Hon. Max Baucus, a U.S. Senator from
Montana, Chairman, Congressional-Executive Commission on China. 1
Kamm, John, Executive Director, the Dui Hua Foundation........... 3
Hecht, Jonathan, Deputy Director, Senior Advisor Research Fellow,
the China Law Center, Yale Law School.......................... 4
Kumar, T., Advocacy Director, Asia and Pacific, Amnesty
International.................................................. 6
APPENDIX
Prepared Statements
Kamm, John....................................................... 22
Hecht, Jonathan.................................................. 26
Kumar, T......................................................... 29
Baucus, Hon. Max................................................. 43
Bereuter, Hon. Doug.............................................. 44
Kaptur, Hon. Marcy............................................... 45
Submissions for the Record
Prepared statement of Michael Posner, the Lawyers Committee for
Human Rights................................................... 46
TAMING THE DRAGON: CAN LEGAL REFORM FOSTER RESPECT FOR HUMAN RIGHTS IN
CHINA?
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THURSDAY, APRIL 11, 2002
Congressional-Executive
Commission on China,
Washington, DC.
The hearing was convened, pursuant to notice, at 2:37 p.m.,
in room SD-215, Dirksen Senate Office Building, Hon. Max Baucus
(Chairman of the Commission) presiding.
Also present: Representatives Wolf, Pitts, Levin, and
Kaptur; and D. Cameron Findlay, U.S. Department of Labor.
OPENING STATEMENT OF HON. MAX BAUCUS, A U.S. SENATOR FROM
MONTANA, CHAIRMAN, CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
The Chairman. The hearing will come to order.
I would like to welcome everyone to the second hearing of
the Congressional-Executive Commission on China.
Today, we will continue to pursue the relationship between
the rule of law and protection of human rights in China. At our
next hearing in June, we will look at commercial rule of law
and the WTO [World Trade Organization].
My opening statement is short. I will, when I am finished,
turn to my co-chair, Congressman Doug Bereuter, who I assume
will be here quite soon, before we hear from our witnesses,
followed by questions.
In the Commission's work, I start from one fundamental
assumption: That a modern, industrialized Nation must have a
legal system that is clear, fair, consistent, impartial, and
independent.
There can be no room for arbitrary decisions. The police
and the courts must be held accountable for their actions. The
law must determine when rights are granted and when rights may
be taken away, not the arbitrary whims of administrative
officials.
This is necessary in commercial law for routine business to
proceed, and it is no less necessary in civil and criminal law.
China is a conundrum. Thirty years ago, Mao Zedong was the
supreme leader of a totalitarian Marxist-Leninist system.
Today, after two decades of reform, the portrait of Mao that
hangs from Tiananmen Gate overlooks a vastly different China.
On the streets of Beijing, Shanghai, and other cities, one
would be hard pressed to find any real evidence of Marx or of
Lenin. Power in China has become much more diffuse. It is
wielded by an ever-increasing number of officials and
bureaucrats within the Communist Party and the Central
Government, as well as officials at the provincial and city
level.
A significant part of the economy is now based on market
principles. State-owned enterprises are shrinking rapidly. Some
journalists challenge government-imposed restrictions on press
freedom.
The practice of religion is spreading. Legal clinics teach
ordinary citizens about some of their rights, albeit with
strict boundaries. Nevertheless, despite these changes, Xiao
Qiang, head of Human Rights in China, reminded us at an earlier
hearing that the Chinese Government has become a system of rule
by law rather than rule of law. That two-letter preposition,
rule by law versus rule of law, makes all the difference.
Under rule by law, authorities manipulate the law to
achieve their own ends. Laws are often used as a means of
subjugation or repression. With rule of law, the law itself is
the final word. Human rights can only be protected within a
system of laws. Anything else is arbitrary.
The Commission is beginning to work on its first annual
report due in October. The report will include recommendations
about how we can help China respect rule of law, a necessary
step in China's march to join the community of nations.
These hearings, along with the detailed roundtables being
held by the staff, which I understand have been most
productive, will provide significant input into that report.
Let me list several questions that I hope we can address
today. We have a distinguished panel of witnesses to help us do
that.
How does the criminal justice process work in China? How
can we help improve it? Second, what is the current status of
lawyers in China? To what degree can they challenge police and
prosecutors and defend clients without fear of punishment or
retribution? How can we help improve the situation for lawyers
in China?
Third, is China a more rules-based system now than in the
past? What are the trends? And fourth, can one differentiate
between a rules-based commercial law system and a rules-based
civil and criminal law system? These are the basic questions.
Today, we have three distinguished panelists, each either
personally or through his institution has played an important
role in trying to move the Chinese Government in the proper
direction.
John Kamm is Executive Director of the Dui Hua Foundation.
John, of course, is very well known to all of us and has made
some stunning contributions in the release of political and
religious prisoners in China.
Jonathan Hecht is Deputy Director and Senior Research
Fellow of The China Law Center at Yale Law School. He has been
on the cutting edge of assisting change in China's legal
structure.
T. Kumar is Advocacy Director for Asia and Pacific for
Amnesty International in Washington. Amnesty has brought
worldwide attention to human rights issues throughout the world
for decades.
We will give each of you 5 minutes for your opening
statements, then members of the Commission will ask questions.
I will recognize the members of the Commission in the order in
which they arrived today.
So, Mr. Kamm, why do you not proceed?
[The prepared statement of Senator Baucus appears in the
appendix.]
STATEMENT OF JOHN KAMM, EXECUTIVE DIRECTOR, THE DUI HUA
FOUNDATION
Mr. Kamm. Thank you very much, Chairman Baucus and
distinguished Members of the Congressional-Executive Commission
on China.
I was one of the first people to call for the establishment
of a Congressional-Executive body, modeled on Congress'
Helsinki Commission, to investigate, document, and struggle
against violations of human rights in China.
Now that this Commission is established, the time has come
to fulfill the promise for which it was created. This
Commission should make securing the release of political and
religious detainees from Chinese prisons its highest priority,
the measure against which it is judged. This work is not only
about saving a few lives, though one should make no apology
when such a result is achieved.
It is about bringing respect for human rights and rule of
law to China. The dichotomy that some would draw between doing
humanitarian work and doing human rights work is a false
dichotomy.
Who are the people whose freedom we seek? They are labor
organizers like Yao Fuxin, entrepreneurs like Rebiya Kadeer,
clergy like Bishop Su Zhimin, journalists like Jiang Weiping,
Tibetan activists like Ngawang Oezer, and democracy leaders
like Xu Wenli. They are the people who will someday change
China, but whose ability to do so now is constrained by their
being locked away in Chinese prisons. Free them and change
China.
There are thousands of individuals jailed for political and
religious reasons whose names we do not know. My foundation
searches the world for their names. We have found 2,000 of them
in 3 years of research in libraries and book stores.
How is it possible that their names have been accessible to
China's scholars and human rights activists for so many years
and no one has bothered to look for them and write them down?
This Commission should join the effort to find as many of their
names as possible and present them to the Chinese authorities
at every opportunity, remembering that the struggle of man
against power is the struggle of memory against forgetting, and
that truth crushed to earth will rise again.
Prisoners have rights. They are human beings. Getting the
Chinese Government to respect their rights to freedom from
torture, to medical care when they are ill, to the comfort of
family visits, to due process in the hearing of appeals is
fundamentally a struggle for human rights.
Using international standards and China's own laws to win
freedom and better treatment for prisoners is fundamentally a
struggle for rule of law. Arguing otherwise, denigrating
prisoner work as something separate and less worthy than human
rights work, or as some have argued, something that prolongs
the life of the regime, making it easier for it to make arrests
because they are able to score a few PR points is dangerous
sophistry and I urge you to reject it.
When we press for the release of political prisoners we
send a strong message about our own priorities. This is a
Nation built on the rights of the individual, not the rights of
the collective. You cannot talk about human rights without
talking about human beings.
The spectacle of legal experts engaged in a bilateral
dialog in which cases of violations are not discussed is one
that must be avoided at all costs. Open and frank discussions
about violations of human rights, discussions that are based on
full and accurate information on individual prisoners, must be
a condition for holding bilateral human rights dialogs.
Assistant Secretary Lorne Craner, a distinguished member of
this Commission, has taken this position and we should applaud
him for it.
This Commission should become an arsenal of human rights,
arming its members and your colleagues in Congress with lists
of the names of people whose freedom and better treatment must
be a principal goal of our country's human rights diplomacy.
I urge you to construct and post on your Web site the
prisoner registry that your mandate calls for, and I urge you
to do it without delay. The NGO [non-governmental organization]
community is ready to help.
Let your calls for freedom ring in the corridors of power
in Beijing and in the provinces. Let them ring from the
mountains of Tibet to the oil fields of Heilongjiang, from the
villages of Sichuan to the teaming metropolis of Shanghai.
Let those in prison for the simple expression of their
beliefs hear freedom's song, and in that song, the voices of
those who made this country a shining city on the hill, the
hope of the world. You will then fulfill the promise of this
Commission and do honor to your legacy as Americans.
Thank you very much, Chairman Baucus.
The Chairman. Do not let that red light stop you if you
have more to say, John.
Mr. Kamm. That is my statement.
[The prepared statement of Mr. Kamm appears in the
appendix.]
The Chairman. All right. Fine.
Next, Mr. Hecht.
STATEMENT OF JONATHAN HECHT, DEPUTY DIRECTOR, SENIOR RESEARCH
FELLOW, THE CHINA LAW CENTER, YALE LAW SCHOOL
Mr. Hecht. Thank you, Senator Baucus and the other members
of the Commission for inviting me to speak here today.
Law reform and human rights in China have been the focus of
my work for the past 12 years as a foundation program officer,
as an advisor to the U.N. High Commissioner for Human Rights,
as a consultant to human rights groups here in the United
States, and now as the deputy director of The China Law Center
at Yale Law School.
Based on my experiences, I believe that sustained, targeted
support for legal reform can play a useful--indeed, crucial--
role in promoting human rights in China.
Enormous change has taken place in China in the last 20
years, including in the legal system. As a result of these
changes, there are powerful forces at work in China for more
openness and more respect for individual rights.
But I do not believe that progress is inevitable. We cannot
depend on economic reform and trade to lead automatically to
progress in human rights. It is, and will continue to be, a
struggle. In my written statement, I have indicated where and
how our support for legal reform can contribute to that
struggle.
One of the main reasons why, after 12 years, I continue to
work in this field, despite many frustrations and many
disappointments, is I have enormous respect and admiration for
Chinese legal reformers.
They work in a difficult, even risky, political
environment. They must overcome uncongenial traditions. They
are seeking to fashion practical reforms, even as the country
goes through change at a mind-boggling pace.
Particularly given these difficult conditions, legal
reformers in China have accomplished a great deal in a
relatively short time. When I began making grants in China in
1990, human rights was a taboo topic.
The Communist Party dismissed human rights as the patented
product of Western capitalist countries. In the years since,
the combination of the efforts of reformers within China and
criticism from abroad has led to the legitimation of human
rights as a goal for China and its legal system, and, in 1997
and in 1998, to China's signature on the two major
international human rights treaties. Now reformers within China
are using those treaties as a yardstick to critique and to push
for further reform.
Over the course of the 12 years that I have been working in
this field, legal reform has also progressed to ever more
fundamental issues. In the early days, legal reform meant
getting laws on the books, much of it related to foreign
investment and training a new generation of legal experts and
professionals.
Now the focus of legal reform is increasingly on structural
issues, on the institutions and procedures that make laws work
in practice.
This has led to greater emphasis on the courts, in
particular, whose role is critical to human rights protection
and their relationship to other institutions, such as local
governments and the police.
Even in highly sensitive areas like criminal justice, we
can see reformers going to deeper and more fundamental issues.
In 1996, China adopted reforms to make criminal trials more
open and give defense lawyers more of a chance to present a
case.
Those reforms have encountered many problems in
implementation, the root of which is the vast powers of the
police in China to detain and investigate before trial.
So now reformers in China are turning their focus to the
protection of human rights in the pre-trial stage through
establishment of a right to silence and more oversight of the
police so that reforms at the trial stage can have real
meaning.
Law is certainly not a cure-all. The sad truth is, many of
the human rights issues that we care about the most, the right
to political expression, freedom of conscience, minority
rights, worker rights, are ones that are least likely to be
positively affected by legal reform in the near future.
In areas like these where the Communist Party sees social
stability or its own survival at stake, it has no compunction
about using the legal system to oppress and it retains tight
control over legal institutions.
But as legal reform goes deeper, I believe it has potential
to become relevant even here. The work in administrative law
and in judicial reform that I described in my written statement
may, on the face of it, seem somewhat bland and technical.
But under current conditions in China, that is its virtue,
for at root it is about opening up the State to public scrutiny
and participation and increasing judicial power and
independence to curb official abuse.
A fully satisfying resolution of the core problems in
Chinese law, especially the relationship of the Communist Party
to the legal system, and ending use of the legal system to
deprive people of basic political, religious, and other rights,
may well have to await a political breakthrough.
We do not know when that breakthrough will come, but in the
meantime, I believe that there is much that can be done through
legal reform to improve rights protection in China today and to
lay the groundwork for still fuller rights protection as and
when the broader political environment allows.
Thank you.
[The prepared statement of Mr. Hecht appears in the
appendix.]
The Chairman. Thank you very much. That is very helpful.
Mr. Kumar.
STATEMENT OF T. KUMAR, ADVOCACY DIRECTOR, ASIA AND PACIFIC,
AMNESTY INTERNATIONAL
Mr. Kumar. Thank you very much, Mr. Chairman.
Amnesty International would like to express its
appreciation for inviting us to testify at this important
hearing.
Mr. Chairman, you asked a very important question in your
opening remarks. You asked whether the Chinese legal system is
clear, fair, impartial, or whether it is being used
arbitrarily.
Unfortunately, Amnesty International's research shows that
it is not fair, it is not impartial, it is not clear, and it is
being used arbitrarily against political opponents and peaceful
political activists.
The end result of this is that we see thousands of
political prisoners in prison, religious leaders in prison, and
executions in staggering numbers. China executes more people
than all of the other countries put together.
During the last 3 months, I think, from May to June or July
2001, during that 3-month period, China had a special campaign
called the ``strike hard campaign.''
The Chinese executed more people during that 3-month period
than all the other countries put together for the last 3 years.
That shows how sad the situation is there. Law is being used to
justify these executions. Even after executing prisoners, we
hear reports about organs being removed without their consent.
In a nutshell, Mr. Chairman, the law is being used as a
political tool to suppress human rights and peaceful dissent in
China. The Chinese legal system is more friendly to business
than human rights.
You also asked to comment about lawyers and other systems.
In a nutshell, lawyers are struggling. They are trying to make
some difference, but they are unable to make any difference
because of the arbitrariness and political interference there.
Confessions extracted under torture are being admitted
there. That is part of the problem we face with the death
penalty as well.
Also, a special detention called ``reeducation through
labor'' is in place in China. It is being used to imprison
people without going through the regular legal system. Over
200,000 people are in prison at this moment under that
particular system.
Last, but not least, Mr. Chairman, after September 11, the
Chinese have taken advantage of the anti-terrorism issue and
passed new regulations called anti-terrorism legislation in
China. That came into effect in December 2001. Under that,
thousands of Uighurs and Muslims have been arrested and
imprisoned. It is continuing to this minute.
When I mentioned about Xingjiang, I cannot wait to mention
one particular case. Her name is Rebiya Kadeer. Her case can
symbolize the arbitrariness, and also, if I may say, the
arrogance, of the Chinese Government. This is Rebiya Kadeer.
She was arrested while she was on her way to meet with
Congressional staffers.
When a Congressional delegation went to China, they went to
the capital of the Uighur province called Urumgi. They were
waiting for her, because she is a very successful
businesswoman. When they were waiting to meet her, she was
picked up outside of the hotel and she was charged with trying
to meet with foreigners, and has been sentenced to 8 years. The
trials were closed.
You asked, Mr. Chairman, what you can do. There is a great
opportunity coming down by the end of this month. The Vice
President of China is going to be here. He is going to meet
with the President. You can impress upon him to release Rebiya
Kadeer and other prisoners in China, be they religious, be they
political, or innocent victims themselves. Start a new
relationship with him and inform him to take the Commission
seriously. That is the challenge you face.
As a human rights organization, we look up to you, Mr.
Chairman and the Commission members, to stand up, not to be
silent, because you are the only hope.
We hope you will succeed. We are confident you will
succeed. Thank you very much.
[The prepared statement of Mr. Kumar appears in the
appendix.]
The Chairman. Thank you very much. That is very helpful.
Mr. Hecht and Mr. Kamm, please talk a little bit about the
interplay between a prisoner registry, maybe on a Web site of
our Commission, and the issue of legal reform, occurring in
China.
Now, maybe there is no real linkage there. But I just
wonder if you could discuss it a bit. There might be some way
we can help. But if you see any linkage I would like to hear
it. If you do not, tell us that, too.
Mr. Kamm. As you know, Mr. Chairman, under the 1999 Omnibus
Appropriations Bill, the State Department was required to build
a registry of Chinese prisoners. Little was done for about 2
years, then about a year ago, work was begun.
I am pleased to report that, 2 days ago, I handed over to
Assistant Secretary Craner two data bases with approximately
6,000 names. I believe that is by far the largest registry of
prisoners ever assembled.
We divided it into two data bases, a registry of
information from NGO publications and a registry of information
that we have found in official Chinese publications. We are now
trying to build a priority list of cases. We think we will come
up with about 650.
Now, as to your question of how something like this----
this is, by the way, I think, the first time that we will have
at our disposal such a tool. I discussed this with Congressman
Pitts the other day.
If you have a sister state relationship with a province in
China, as part of that relationship, the American State should
be submitting lists of names of prisoners in that province, or
in that city, or in that county. We should continuously put
forward these lists of names.
Now, with the technology available--and I am not
technologically very competent--I understand that you can put
into such a registry information on the prisoners and their
cases that might have relevance to Chinese law.
Chinese law provides for parole, for instance, when certain
conditions are met. You could put that information into a
registry. When high-level visitors come to this country,
present them with lists of people who, under Chinese law, are
eligible for parole. That is just one idea.
Rebiya Kadeer. Another idea. We have uncovered a regulation
that states explicitly that when it meets the Foreign Affairs
requirements of China, a prisoner can be paroled.
Well, clearly, if this woman was detained because she was
about to meet a delegation of Congressional staffers, it seems
to me that meets that particular requirement under the
regulation. So, when making a call for her release, you could
cite that regulation.
These are some of the ways that we can marry these two
things and attempt to bring about systemic change, but always
with a focus on people, always with a focus on prisoners,
people who are there. I just want to end with one final
example. There is a young man in a Sichuan prison right now, in
a jail, for posting pro-democracy articles on the Web. His is
one of the first cases of an Internet dissident. His trial was
concluded in August of last year.
I was in Beijing last month and went to the Supreme Court
and asked them, how is it possible that the trial was finished
in August, but no verdict, no sentence, no ruling? They very
sheepishly told me that there are no regulations governing the
length of time between the conclusion of a trial and the
announcement of a verdict.
So again, when we talk about Huang Qi, this young man, one
of the ways to go about it, I think, is by referencing this
particular shortcoming in the system.
The Chairman. Mr. Hecht, do you have a response?
Mr. Hecht. Well, there is no doubt that there is an
important relationship between individual cases and systemic
failings in the Chinese system. I think as Mr. Kamm rightly
pointed out, first of all, many of the individuals who are
imprisoned in China for exercising their internationally
recognized human rights, are people who would themselves be
agents for change, including in the legal system, if they were
not being held.
Individual cases are also symptomatic of the broader
failings in the legal system, and I think that Mr. Kamm is
right, that we should be using our understanding of the Chinese
legal system.
I think one of the things that this Commission is
contributing will be a better, more detailed understanding of
the Chinese legal system, using that understanding to point out
where the handling of individual cases violates Chinese law or
international law, or both, and also using that knowledge, as
Mr. Kamm suggests, to push for handling of individual cases in
ways that Chinese law itself allows.
I think that, in addition to that focus on individual
cases, there are two other elements to an effective strategy
for promoting legal reform and human rights in China. One, is a
critique that is an explicitly systemic critique.
Now, in part, as I just said, that will draw on individual
cases for examples. But we also need to be looking
systematically at the structural problems that exist in the
Chinese legal system and engaging people in China, both in
government and outside government, directly on those systemic
problems and suggesting ways in which they can be addressed.
So in addition to focusing on individual cases, we need to
be focusing on systemic failings. Then, finally, we need to be
providing support to the people within China who are working to
address those systemic problems. So, I think that these several
elements can all work together to really provide the maximum
amount of support for the sorts of changes that we are looking
for.
The Chairman. All right. Now, I ask the indulgence of my
fellow Commissioners here. But if I understand you,
particularly, Mr. Kamm, you are suggesting that perhaps, a list
or registry of names, can be linked with the issue of what the
current legal rights are in China.
It seems to me that the more that is known about some of
these changes, as modest as they are, in China and the more
people know about it the link with somebody on a list, that
this may provide leverage to make something happen.
As you say, Vice President Hu Jintao visits the United
States. You say, hey, here are some names. What about that?
These are some of the rights these people have and they are not
allowed to exercise them. Does that help or not?
Mr. Kamm. What is very important, is to get the Chinese
Government to give us information in writing. It is very, very
important we do that. We get the information, and once we have
the information, we can use it.
The Chairman. And the information you are talking about
here is what?
Mr. Kamm. On prisoners.
The Chairman. That is names or the rights?
Mr. Kamm. The names and their conditions and their
situations. For instance, Liu Jingsheng comes to mind. He is a
labor organizer who was imprisoned in 1992. Through the
exercise of getting information in writing, we have discovered
he has been given a couple of good behavior reductions.
Under Chinese law, he is eligible for release. He has
served more than half of his sentence and he has demonstrated
the conditions necessary for parole.
So, there is an example. In their own words, they have told
you that this man is eligible for parole. He is a very
important labor organizer. He tried to establish the Free Trade
Union of China in 1992 and was given a 15-year sentence. He has
served 10 years of that sentence. He is eligible for parole.
So, that is the kind of thing I am talking about, using the
information we have and our knowledge of the system to press
for the release of specific prisoners.
The Chairman. Thank you very much.
Our Commission operates on the early bird system. The early
bird is Mr. Cameron Findlay, on my right. After Mr. Findlay, on
my list is Congresswoman Marcy Kaptur, Congressman Levin,
Congressman Wolf, and Congressman Pitts.
Mr. Findlay. Mr. Hecht, I was struck by your emphasis on
how important it is to make systemic changes in China. I was
wondering if you could take a few minutes and just talk about
each of the various institutions that make up the system, law
enforcement, trial courts, appellate courts, and then the legal
profession. I know that is a tall order, but if you could take
a couple of minutes on each one of those.
Mr. Hecht. All right. Well, that is a challenging question.
Let me start by saying that the Chinese system, in its roots,
borrowed much from the Soviet Union.
In its basic structure, it borrowed the Soviet idea, which
in turn was borrowed from the French, of legislative supremacy.
So, in theory in China, the most important legal institution is
the legislature.
The courts and the executive branch, as well as what is
called the procuratorate, which is the state prosecutor but
also has a broader watchdog function in the Chinese system, are
all subordinate to the legislature. They are appointed by the
legislature and they report to the legislature.
One of the more interesting developments in China over the
last 10 years has been the emergence of the legislature,
particularly at the national level, but also at local levels
into its constitutionally defined role as a significant part of
the legal system.
The courts are a unitary system. The Chinese do not have a
Federal/state divide in their court system. They have a single
system of courts, from the top, the Supreme Court, to
provincial-level courts, to intermediate-level courts usually
in large cities within provinces, and then down to basic-level
courts, of which there are about 3,000 in China.
The people's governments, as well as the procuratorates,
are arranged similarly, from the national level, to the
provincial level, to the sub-provincial, to the local level.
At each of those lower levels, the pattern,
constitutionally speaking, again, replicates that at the top.
The people's Congress, the local legislature, is, in theory,
the superior body and the other three are considered the
subordinate bodies.
The police are nested within the executive branch under the
governments at each of these levels, though in fact the police
have tended to have a status at least equivalent to the courts
and to the procuratorates, and in fact have been more powerful.
So, the status of the police in the Chinese legal system is
something that bears a great deal of attention because the
police have a role and a range of powers, particularly in the
criminal justice system but also with respect to various
administrative sanctions.
Mr. Kumar referred to the system of reeducation through
labor, for example, which is a police-administered sanction
whereby people can be sent to labor camps for up to 4 years.
Police powers are enormous in China, and this is a systemic
problem that we really should be focusing on to a much greater
extent than we have in the past. This is an area where, within
China, there is a good deal of debate about whether police
powers are too great, about whether these administrative
detention powers should be subject to judicial control.
This is an area where we should be paying a lot more
attention, both in our own work as people who focus on China
and through our government in its interactions with the Chinese
Government.
As far as the legal profession is concerned, the Chinese
legal profession is quite new. As recently as 20 years ago,
there was essentially no legal profession in China. There were
a handful of lawyers who had been trained prior to the cultural
revolution, most of them quite elderly, and they had had
virtually no role, really, since the founding of the People's
Republic in 1949.
In the last 20 years, the legal profession has grown
enormously. There are now somewhere between 100,000 and 200,000
lawyers in China. That is what has occurred in the last 20
years.
Most of them, of course, like lawyers everywhere, are
involved in commercial practice. But there are also lawyers now
who handle suits against the government, lawyers of course
involved in the criminal justice system though they face
enormous obstacles there, and lawyers who are becoming more
prominent as public officials. That is another respect in which
China is quite different from the United States.
In the legislature in China, you would be hard pressed to
find more than a handful of lawyers, which is obviously quite
different from legislatures in the United States. But that is
an area where there has been a great deal of change.
Mr. Findlay. I think my next question will take me over, so
I think I will just stop.
The Chairman. Go ahead. Oops. You had your chance.
Congressman Levin, please.
Representative Levin. Thank you very much.
The Chairman. And I am going to have to go. If you can
chair for as long as you can, Congressman.
Representative Levin [presiding]. We try to squeeze a
week's worth of work into 2 days in the House, so I am sorry
that others could not make it. There are conference committees
going on, etc. There is a welfare reform hearing that I will go
to as soon as I finish. I guess we will each chair for our own
5 minutes, which is somewhat unique around here.
You are a particularly distinguished panel, and we deeply
appreciate your being here. Your experiences show your
seriousness and we are going to try to match that.
So let me throw at you one of the challenges before us. The
Chair talked about China as a conundrum. Now, the Mideast has
totally, understandably, captured the news stories. When that
is not happening, there may be more articles on China than
perhaps any other country. These stories talk both about change
and resistance to change, and the resistance against the
resistance to change.
So let me ask you, as you see the role of this Commission,
how do we both pressure and participate in the change in terms
of engagement? The rule of law is a good example of that, is it
not? Because you have suggested here today that we both
highlight the individual cases, that we use every opportunity
to pressure the Chinese Government, if the Vice President is
here, or otherwise.
But also, there has been reference to our assisting them in
the development of a rule of law there which is so sorely
lacking. We wrestle with this all the time, how we achieve
both, in the role of this Commission.
And you have explained it in lofty terms, and we hope we
will meet your expectations. We are determined to do that. So
respond, will you, about this challenge, how we do both,
whoever wants to start.
Mr. Hecht. Well, I hesitate to presume to suggest how the
Commission should----
Representative Levin. No, no. I am asking you to.
Mr. Hecht. My response would be, China is a conundrum. And
I think, as someone said earlier, perhaps it was Senator Baucus
as well, it is also not a monolith. I think it is possible to
pursue both criticism of China for its handling of individual
cases, as well as support for people within China who are
trying to improve things there.
I do not think that that has to be an either/or
proposition. There are people within China, as you just said,
who are supportive of change and people who are resisting
change. There are people who are in official positions where
they will, of course, be difficult when they are presented with
demands with respect to individual political prisoners.
But there are probably people in the same institution down
the hall from them with a different set of responsibilities,
and perhaps an entirely different set of outlooks, who are
interested in engaging with U.S. experts on some of the very
same issues that we are complaining about. I do not think we
should be afraid to do both at the same time.
Now, it may not be appropriate always to merge those
efforts in time and space, because China is not a monolith. It
may be best to be dealing with one set of officials in China on
one set of issues in one way, and simultaneously be supporting
work either through the United States Government, or oftentimes
more effectively through non-governmental groups, with another
set of actors on another set of issues in China.
Representative Levin. Let us take that proposition and see
if Mr. Kamm and Mr. Kumar want to comment on that. Do not worry
about giving us advice; we are seeking it.
Mr. Kumar. Individual cases are extremely important because
these cases reflect the weakness in the legal system, as well
as the arbitrariness by which it is being applied.
In terms of assisting them, first of all, they should have
political will to open up. If they are opening up for the sake
of opening up because of criticism or because of some other
reasons, trade privileges, whatever, it is not going to work.
That is why this Commission should insist upon, whenever
you meet with officials and also whenever you have any public
documents coming out, to have two-track policies. One is, of
course, individual cases. That is fundamental. Second, is to
have meaningful change through legal reform.
They had legal reform in 1997, if I am not mistaken.
Criminal procedure law was reformed. It was much better than
what existed for 16 years, from 1979 to 1997. But it did not go
too far. The next challenge is, how are we going to push them
to move forward with new challenges and new openings?
So the short answer is, individual cases are so
fundamentally important, but we should push for them to open up
politically so that they can accept any recommendations that
come from outside.
Thanks.
Representative Levin. Mr. Wolf, I think it is your turn.
With all of your expertise, why do you not take over? Then Mr.
Pitts, I think, is next.
Representative Wolf [presiding]. Thank you, Sandy.
Thank you all very much. I will read all of your testimony.
I apologize for being late. I want to thank you for your work
and for your effort.
I do have a question, but before I ask it I want to make a
comment. As you answer the one question, you might also comment
on this.
My sense is, the model for the Commission ought to be the
Helsinki Commission, and I sense that we may not be drifting in
that way. I think the difference is, during the days of the
evil empire when Ronald Reagan clearly laid it out, everyone
who went to the Soviet Union spoke out on behalf of the
dissidents. Everyone. There were no groups that ever went to
Moscow without raising these cases, even people who went there
on behalf of arms control and disarmament. Everyone always
spoke out.
Now there are mixed messages. In fact, many of the
Congressional delegations may give a pro forma little touch and
a flick with regard to human rights, but it is business. It is
business. If the business community would also add in the human
rights element, they could do their business and, I think, make
a tremendous difference.
My sense is, where I think this Commission may differ, is
the Helsinki was the model. We do not need a new model. We have
a model. But we have to follow what worked.
What I would like to ask you, is this. With the economic,
not crisis, but the conditions that are taking place in China
today, what impact do you think this will have on human rights
and religious freedom? There is a new book out which I have not
read, but I have a copy at home, ``The Coming Economic
Collapse.'' I have had people reading stories of demonstrations
at different factories.
What impact do you think this will have? Will this
encourage the Chinese to open up a little bit or do you think
it will cause them to crack down? What do you think it will do
to the conditions with regard to human rights?
Mr. Kamm. I think, Congressman Wolf, both things will be
happening at different times and in different places. Right
now, in the northeast we have a particularly serious situation.
I mentioned in my statement Yao Fuxin. This is a case I
commend to all of your attention. He is the principal labor
organizer of the Liaoyang strikes. He has been detained and he
has now been formally arrested. The international community
needs to raise his case, raise it frequently, and very
seriously.
I agree with you entirely. There is no need for another
model. The model should be the Helsinki Commission. When I
spoke to this in November 1995, that is what I said. I could
not agree with you more. I foresee a day when this Commission,
as my testimony is entitled, is an arsenal of human rights.
Every Congressional group that goes to China and beyond, as
I mentioned, if there is a sister state/province relationship,
if State legislators are going, they should turn to this
Commission for an up-to-date list of prisoners in that
location.
I think every Member of Congress that goes to China should
be armed with prisoner lists and should be briefed before he or
she goes. Sometimes things are said to members--by Chinese
officials--and they do not have the background. They need to
know what we know about the cases before they go.
So, I agree with you. That is what I see as the promise of
this Commission, a very active Commission. I think you have
already the standing with the Chinese Government to take that
up, and you should do it. You should do it as quickly as
possible. You should not miss any opportunity to present to the
Chinese Government the lists of the names of people who are
imprisoned for their religious and political beliefs.
Mr. Hecht. You are right that China is going through a very
complicated economic transition. It is an economic transition
that has winners and it has losers. There are large numbers of
winners. Many, many people in China live far better now than
they did 20 years ago. We all know that.
But there are losers. The workers in state-owned
enterprises are losers, and it is entirely possible, as WTO
begins to bite, that there will be many other sectors of the
Chinese economy where there are more losers. I think that the
Chinese Government is worried about that. When the Chinese
Government gets worried, it tends to get tough.
I think there is a considerable likelihood that, in the
near term, particularly in response to concerns about the
impact of the WTO in China, which is very risky, we will
actually see tougher tactics against people with economic
grievances. I think that is entirely right.
I also agree entirely with your other point. I think that
human rights has to be viewed by people in this country as
something that is vital to all of our interests in China. It is
not something that should be separated or ghettoized.
It is as important to our strategic concerns and our
economic concerns as it is to our, more explicitly, rights
concerns. I think that it is important that people in China at
all levels of the government get that message.
I think it is important, not only so that they understand
the depth of our commitment on those issues, that it is not
just some particular part of our bureaucracy or some fringe
group in our society that cares, but in fact this is a deeply
and widely held view.
I also think it is important in the Chinese context,
because I think that, just as sometimes human rights has tended
to be separated and ghettoized in our government, it has been
separated and ghettoized in the Chinese Government.
I think that when people go to China to talk about trade
issues or investment issues and they are meeting with people on
the Chinese side whose responsibilities lie in that area, they
should be making them aware of how important in our own history
and our own economic development the question of rule of law,
and rights, and reliable legal institutions has been.
In that way, we build the constituency within China for
rule of law and human rights rather than allowing them to
continue to think that this is just some parochial concern of
some people in a handful of institutions. So, I agree, that is
very important.
Mr. Kumar. As a human rights organization, we appreciate
your comment, Congressman Wolf. We have always admired your
work in terms of human rights around the world.
The Helsinki Commission model is something we expected this
Commission to follow. That is what we all thought when the
Commission was set up. We want the Commission to take the
fundamental issue of human rights in every step they take.
Now, with China, the interest of business has basically
overtaken other interests between the bilateral relationships.
On that note, I would like to congratulate Mr. Kamm for
being a businessman, and also doing human rights work. Mr.
Kamm's work should be the model for other business leaders and
other business organizations.
Representative Wolf. I agree.
Mr. Kumar. Coming back to the issue of what will happen,
whether there will be a clamp-down or there will be opening
when there is economic instability, the only thing we can say
is to look at other examples.
The other examples in other countries point out that when
there are economic difficulties or other issues, then
governments tend to clamp down. That is why rule of law is
fundamentally important.
When there is a lack of the rule of law, governments can
clamp down with ease. As I mentioned in my opening remarks, the
new law that came into effect after September 11, in the name
of anti-terrorism in China, is the one that they are going to
use against anyone who raises their voice against the
government's authority.
Now it is only limited to the Muslim province of Xingjiang.
It will not take long to extend it when they need it. That is
why we have to raise our concerns at this moment about that
law, as well as other laws.
Thank you very much.
Representative Wolf. Thank you very much. Thank you.
You are going to have to chair. There is a vote on. There
is a vote on in the House.
Mr. Findlay. Congressman, I have enough difficulty running
my department. I would not deign to chair a Congressional
committee. But I think Mr. Pitts is next.
Representative Pitts [presiding].Well, I will ask a
question and then I will have to go vote as well.
Thank you very much for your testimony. I, too, will read
it.
Mr. Kamm, you mentioned that it is very important to get
information in writing from Chinese authorities regarding
specific prisoners. As we have discussed, you have been very
successful in your tactics.
As I understand it, you are suggesting that the Commission
or someone compile a list of all of the sister relationships
that may exist. There may be hundreds, state-to-state, county-
to-county, city-to-city, hospital-to-hospital, school-to-
school, university-to-university, whatever. Then this data base
could be used to pull out a certain number of prisoners, say,
for a certain province or a certain city.
Then you would give this data base or this list to the
appropriate officials, Congressional delegations going over or
hosting, mayors, or whatever, school officials. What, would you
elaborate, is the culturally acceptable way of submitting lists
or requesting information? Can you elaborate on that?
Mr. Kamm. Well, this gets into, sort of, tradecraft here a
little bit, again.
Essentially, at the outset of the relationship, you make
clear that, as part of this relationship between a, say, State
and a province, human rights is very much a part, from the
American side, because we are very interested in human rights.
We make that very clear to start out from that point of
departure.
Then once you have made that very clear, you take the
approach that, well, for us to have a conversation about human
rights, we need to have accurate information on cases. Law is
made in the courts every day through cases, so we view legal
developments, law, human rights, through the prism of cases.
Therefore, we have taken with us a list of cases that we
would like to get information on in writing from you, and based
on that information, we would like to have a dialog with you on
these cases and see whether or not we can make some progress in
resolving these issues.
That is, more or less, the approach I would take. There is
no substitute for good preparation. I go every quarter to
Beijing and I carry prisoner lists, and I have thick files
backing up every name that I ask about. There is just no
substitute for that.
So, I would recommend that this Commission can, in fact,
perform that very important function. Before members go, you
provide them with the information and you provide them with
briefings. I would be delighted to help the Commission in any
way you see fit to assist in that regard.
We have seen in the last year a change on the part of the
Chinese Government. A year ago, they were not giving
information in writing in response to government lists. They
were doing so with me, but they were not with government lists.
Now they are replying, not just to American lists, but to
British and European lists.
We have got to work with our allies as well in coordinating
this flow of information and effective advocacy. If someone is
working hard on one case, let them work on it, keeping us
advised. Work hard on another case. We need to do a better job
of that. Those are just some ideas.
Representative Pitts. All right. How important is
relationships in the culture? Would you comment on, what is the
biggest fear of the business community--you can speak to the
American business community, if you like--about getting
involved in something as basic and simple as requesting a
prisoner status report, even if it is done as a group, through
such a group as, say, the American Chamber of Commerce, so that
no one business needs to stick its neck out. What is the main
problem there?
Mr. Kamm. Well, if I knew the answer to that I would be a
much happier person. I have been trying to get the business
community to do what I consider to be very non-threatening and
very basic human rights work for a long time.
Jonathan has just said that he, too, thinks it would be a
great idea. I guess later we will have a conversation as to how
we might convince them to do so. They have resisted it at every
turn. They have refused to get involved in this respect.
Why? Various reasons are put forward. They are afraid that
the Chinese will retaliate against their business. I have made
it clear that, in 12 years of doing this work, not once has a
Chinese Government official threatened my business, but for
some reason, business people do not want to believe that.
There is the issue of them not knowing enough. They say, we
do not know what the facts are. That, too, is an obstacle, I
think, that is easily overcome and the Commission can help
there.
But I have to tell you, as someone coming out of the
business world, more and more as I work in this area I think it
is a matter of corporate culture. That is a big part of it.
I come from a generation of people going overseas as
expatriate businessmen, and the first thing you are told before
you take an assignment overseas by a big corporation, is stay
out of local politics. That is the first thing you are told. I
am afraid that I am viewed in the corporate world as someone
who has violated that number one rule. I have never accepted
that.
I am afraid, for the most part, business people, especially
those beyond a certain age, simply, it runs against corporate
culture to involve yourself on behalf of the people in the
country where you are doing work.
It is a very sad thing. And I really admonish my remaining
friends in the business community: Think. Think about the
future. If you are running a Ford Motor Company plant in South
Africa today and someone in your plant asks whether you think
Nelson Mandela should have been imprisoned for 30 years, I
suggest you say no. That would not have been your answer 25
years ago. Do not think they do not understand that.
Some day, business people--well, let me put it in a
positive way. If, in fact, they are willing to intervene on
behalf of these people, their businesses will, in fact, be
rewarded some day, in my opinion.
Representative Pitts. Thank you.
Do any of the other witnesses want to comment? Mr. Kumar.
Mr. Kumar. Yes. Amnesty International, as an organization,
never takes a position on sanctions. We do not oppose or
support.
But we always urged the business community, individual
business leaders, to raise cases and issues with respective
governments where they do business. Some have, but many
refused.
The fundamental issue with China was that, until PNTR
[permanent normal trade relations] became permanent, the
business community felt that human rights was being used to
block their permanent relationship. So they took the opposite
view during that time and they are still in that mode, saying
that human rights are against us, so we should not get
involved. We should educate them. That is our job, and
everyone's job that goes over in China.
Also, they should, by their own self-interests, raise these
issues. If the local government is going to be unfair and
brutal against their own citizens, it will not take long to go
after their factories and their employees.
Human rights are not a political issue. Human rights is not
a political issue at all. It is about fairness and decency. It
transcends beyond borders. It transcends beyond cultures. It
transcends beyond everything. It is fundamental, basic human
dignity and fairness. That is what human rights is all about.
I like to compare this situation to Afghanistan. There are
some corporations that had dealings under the Taliban. We could
not believe what some of the women executives would come and
discuss with us, defending Taliban policies at that time. I
hope the business community that is doing business in China
will not go that far to defend something that is against their
conscience.
So that is the challenge, and we all should face that
challenge. Thanks.
Representative Pitts. Thank you.
I think it also should be said that one of the selling
points from the business community for PNTR, MFN [Most-Favored-
Nation], or NTR, whatever it was called in a given year, was
that more engagement, more involvement by the business
community in China would result in improved human rights. That
was one of their selling points. I think they should be
reminded of that.
I will turn the hearing back over to you for a second
round. Thank you very much.
Mr. Findlay [presiding]. I find myself in the position that
every Executive Branch official dreams of, controlling a
Congressional hearing room by myself.
But because of the votes going on in the Senate and the
House, I think it is probably best that I just thank our
distinguished panel for being here today and for answering our
questions so forthrightly. The testimony and the answers were
enlightening, and inspiring as well.
So, on behalf of Chairman Baucus, I will declare this
hearing closed. Thanks.
[The prepared statement of Congressman Bereuter appears in
the appendix.]
[Whereupon, at 3:40 p.m., the hearing was concluded.]
A P P E N D I X
=======================================================================
Prepared Statement of John Kamm
april 11, 2002
I was an early advocate of a Congressional Executive Commission to
monitor China's human rights situation, speaking in favor of it to
Congress' Helsinki Commission in November 1995, so naturally I am more
than a little pleased to appear before you today. To examine China's
compliance with international and bilateral human rights treaties and
agreements and to make recommendations for our country's human rights
policy toward the People's Republic of China, President Bush and the
Congressional leadership have assembled a knowledgeable and diverse
group of commissioners, all of whom have taken an active interest in
US-China relations, and all of whom have strong beliefs on how best to
pursue our national interests. I am grateful to Senator Baucus and
Congressman Bereuter for the strong support they have given me and my
work these past several years. The commission is guided by two fair-
minded men of high integrity, and I have no doubt that this body will,
under their leadership, play an important role in identifying effective
ways to address the serious situation we confront in China today.
Several members of the commission, including Senator Brownback and
Representatives Leach and Pitts--have written letters to the Chinese
government backing my efforts to obtain information on, and the early
release of, prisoners whose cases I've taken on. I am especially
grateful to Congressman Pitts for his help pressing the Chinese
government on the case of Bishop Su Zhimin. I have benefited from
Congresswoman Pelosi's advice and concern for my work over many years.
I am fortunate to have someone like Congresswoman Pelosi, a recognized
leader in the effort to promote human rights in China, representing the
district where I live and where my foundation is based.
prisoner releases and human rights diplomacy
I am especially proud to be testifying before a body that includes
as one of its distinguished members Congressman Frank Wolf, with whom I
was honored as a recipient of the Eleanor Roosevelt Award for Human
Rights this past December. Congressman Wolf and I have not always
agreed on what policy should be adopted to deal with violations of
human rights in China, but on one thing I believe we are of one mind.
In formulating and implementing our human rights policy toward China,
the United States must place a very high priority--I would say the
highest priority--on securing the release from prison of individuals
detained for the non-violent expression of their political and
religious beliefs, and until the day of their release, the most humane
treatment that the prison system affords.
This position is not, I'm sorry to say, popular with members of the
American business community in China, nor is it embraced by some who
are active in the field of human rights. Some activists call working
for the release of prisoners ``humanitarian work'' and distinguish it
from ``human rights work.'' Getting a few people out of prisons is fine
for those released and their family and friends, but such a result does
nothing to change the system that put them in prison in the first
place, critics say. One prominent human rights activist has even said
that, because the Chinese government is sometimes able to manipulate
the process of negotiation and release to score public relations
points, working to free prisoners actually strengthens the regime's
ability to arrest other dissidents. Pressuring the Chinese government
is often compared to the odious business of ``hostage politics,'' and
those who engage in this work are sometimes referred to as ``hostage
negotiators.''
Far from being a side show, working to secure the release of
political and religious detainees is the highest calling of human
rights activism. I believe that the most important thing the United
States can do to bring about systemic change in China is to work for
the release of people imprisoned for their political and religious
beliefs, people who are making great sacrifices to bring respect for
human rights and rule of law to China.
Let me state the obvious: Outsiders, with the exception of a few
committed and disciplined exiles, will not be the principal catalysts
for change in China. The agents of change will be found among the
people of China. They are democracy advocates like Xu Wenli, labor
organizers like Yao Fuxin, entrepreneurs like Rebiya Kadeer, and brave
clergy like Bishop Su Zhimin and his Auxiliary Bishop An Shuxin. They
are scholars like Tohti Tunyaz and journalists like Jiang Weiping who
dare to expose corruption and otherwise speak truth to power. To them
belong the pain and glory of bringing change to China, but they can do
little to reform the country if they are locked in prison cells
together with tough and hardened criminals.
It was international pressure that saved the lives of Nelson
Mandela, Kim Daejong, Lech Walesa and many others who eventually
brought democracy and social justice to their countries. Yesterday's
imprisoned dissident is today's leader of a democratic and free
society. Does anyone believe that by passing another resolution or by
running a few more seminars to train judges or by holding another legal
exchange in which the sides do not discuss actual violations that more
can be accomplished than what is accomplished by freeing from prison
those who know the country best, who have suffered for their beliefs
and who have thought long and hard of ways to bring about a better
China?
When a government is forced to release its grip on a prized
prisoner, a current of electricity that is hope runs through the
community of those who yearn for freedom and justice. And that hope
inspires and emboldens others who know that, whatever happens, they
will not be forgotten. Striking workers, like those in Liaoyang and
Daqing, make securing the release of their leaders a principal goal of
their movements. Should we do less?
A man or woman of faith who walks out of the dungeon that once held
St. Paul is living proof of God's saving grace. I am firmly of the
opinion that the explosion of religiosity in China in the mid-to-late
1990's was at least in part brought about by the successful campaigns
to win the release of Catholic clergy and house church preachers in
1992 and 1993. I have seen photographs of the triumphal return of
jailed bishops to their villages. On the faces of the faithful one sees
expressions of rapture, the awe of being in the presence of living
saints. Many of these clergy were sent back to jail, some within months
of their release, but in the time they enjoyed freedom they said
Masses, administered the sacraments including the ordination of
priests, established seminaries and sent out of China testimonies on
which we rely for a picture of what is going on in that great but
wounded country.
Prisoners are first and foremost human beings. Prisoners have
rights--the right to due process, to medical care, to regular family
visits, to be free from physical and mental abuse--and getting the
Chinese government to recognize and better protect these rights
contributes to greater respect for rule of law and a greater ``rights
consciousness'' which must gain hold if a better rights environment is
to be achieved. Xi Yang was a Hong Kong journalist imprisoned for 12
years for leaking State secrets. As a critically important part of the
campaign to win his release, we established that a prisoner's family
has a right to a copy of the verdict, even in cases involving State
secrets. It was while working on the Ngawang Choephel release that we
uncovered the 1990 regulations on medical parole that allow for the
release of prisoners who have contracted ``serious and chronic''
illnesses in prison, and who have served one-third of their terms.
Chinese officials with whom I work now freely make reference to the
``one-third rule,'' the application of which may well lead to more
releases in the future.
One of the most popular books for sale in Chinese legal bookstores
these days is a thin volume entitled ``Yi An Shuo Fa,'' which
translates as ``When speaking of the law, look at cases.'' Although the
Chinese system does not recognize the binding nature of precedent, it
is clear to me that precedent established in one case can in fact play
a role in the resolution of other cases. When we uncover ways to help
one prisoner win freedom, opportunities arise to use what we learn to
help others win freedom. Doing humanitarian work cannot be separated
from doing human rights work. They are both about building respect for
the rule of law.
By focusing our efforts and resources on individual cases, the
United States sends a clear message about the value of the individual,
and the priority we place on the rights of the individual. As I am fond
of telling my Chinese interlocutors, you can't talk about human rights
without talking about human beings. The problem with our human rights
diplomacy in recent years is not that we've been too focused on winning
prisoner releases but that we haven't been focused enough. We shouldn't
be getting out of the ``prisoner list business,'' as one senior
American diplomat once suggested to me, but rather investing more time
and resources in order to achieve more and better results.
prisoner releases: assessing china's motivations
Before reviewing recent developments in the effort to secure the
release and better treatment of political and religious detainees, I'd
like to spend a few moments examining the motivations of the Chinese
government in making prisoner releases. This is a subject I am
qualified to speak about. Hardly a week passes that I'm not engaged in
several conversations about prisoners with officials of the Chinese
government.
It is often said that the Chinese government makes releases of
high-profile prisoners to score public relations points and otherwise
burnish its image. This was decidedly the case in the early 1990's,
when Beijing sought to influence such things as the debate on MFN or
the decision on the 2000 Olympics. It is not the case today, however.
Officials with whom I work do not as a rule want publicity.
There are at least two reasons for this. First, there is little
evidence to suggest that making prisoner releases has in fact improved
China's image in the United States. Soundings taken by Gallup indicate
that China's ``favorable versus unfavorable'' ratings have shown little
change for several years, and when ups or downs take place, they seem
to take place for reasons that have little to do with the arrest or
release of individual dissidents (e.g. the downing of the EP3
surveillance plane or the accidental bombing of the Chinese embassy in
Belgrade). Roughly 45 percent of the American people have a favorable
impression of China, roughly 45 percent have an unfavorable impression,
and 10 percent are undecided. When asked by Gallup if the events of
September 11 had changed their view of the crackdown by the Chinese
government on Uygurs in Xinjiang, the great majority of Americans
replied that their opinions had not changed, and that they disapproved
of the crackdown. Every poll on the subject confirms that Americans
have a poor opinion of the Chinese government insofar as its record on
human rights is concerned, and a prisoner release here or there hasn't
changed that opinion.
The second reason why Chinese officials don't want publicity about
prisoner releases is that many senior members of the party and
government are opposed to setting dissidents free. They view the
release of a high-profile opponent of the regime as a sign of weakness
and even of humiliation. They oppose releases as craven concessions to
foreign powers. Sometimes, a prisoner release will run counter to an
``official line'' that the government is trying to take. In January
2001, I announced the release of Yu Zhijian, a Hunan teacher, sentenced
to life in prison for throwing ink on Chairman Mao's portrait in May
1989, on whose case I had worked for many years. Around the time I made
the announcement, the Chinese government was reacting to the
publication of The Tiananmen Papers by stressing that the verdict on
the June 4 demonstrations would not be changed. How, foreign
journalists asked at a regular Ministry of Foreign Affairs briefing,
could the regime on the one hand say that the verdict would not be
changed and on the other release one of the best known dissidents
sentenced to prison for his role in the protests? Officials with whom I
had worked on the Yu case were criticized, and provision of prisoner
information to me was suspended for nearly 6 months.
While the Chinese government has for the most part given up using
prisoner releases to improve its image with the general public, it will
sometimes release prisoners as gestures aimed at foreign leaders and
legislators, often in the run-up to a visit to China by a foreign
politician or a visit to a foreign country by a Chinese leader. It also
occasionally happens that prisoner releases are made to hint at a
possible change in domestic or foreign policy. Thus, prior to
negotiations with the Vatican on the normalization of relations in
1993, a number of clerics were set free to create a better atmosphere
for the talks. I am watching carefully to see if recent developments
regarding Tibetan prisoners might presage a change of policy toward
Tibet. Thus far, I don't see it.
Sometimes releases take place in response to a specific request for
information from an organization or individual with ``standing'' in the
eyes of the Chinese government. China is a member of the International
Labor Organization, and is required to respond to complaints filed by
the ILO's Committee on Freedom of Association. Information on parole
and sentence reductions for Chinese labor leaders suggests that the
Chinese authorities released them and reduced the sentences of others
shortly before replying to complaints made by the CFA.
Years of hard work building credibility and trust have resulted in
my having ``standing'' with the Chinese government to inquire about
political and religious detainees. I am determined to use this position
to help as many prisoners as possible, for as long as I am able to do
so. I regret that leaders of the American business community, men and
women of considerable power and influence in China, have thus far
refused to use their standing with the Chinese government to press for
the release of those jailed for exercising the rights of free speech
and association. These are rights that business people themselves take
for granted, and on which the success of their own businesses in large
measure depend.
It is true that, if the Chinese government is worried about losing
a trade privilege or if it fears losing a vote in the United Nations on
its human rights record, it will seek to influence the outcome by
making gestures like releasing prisoners or signing human rights
treaties. But if it is confident of victory, the opposite is the case.
Rather than making gestures, Beijing will hold off making prisoner
releases and will instead act defiantly, thereby demonstrating to its
people that it is standing up to foreign pressure.
Releases will be made if they help the government achieve a
strategic objective. Even before the September 11 attack, Beijing had
made a strategic decision to work for better relations with the United
States. The events of September 11 greatly reinforced that decision.
The Chinese leadership knows very well that gestures in the area of
human rights will be welcomed by leaders in Washington, including
Members of Congress. The decision to improve relations with the United
States--a decision that has manifested itself in many ways--is the
principal reason why the Chinese government has carried out releases in
recent months (e.g. the release on medical parole of Li Shaomin, Gao
Zhan, Wu Jianmin, Ngawang Choephel and, most recently, Jigme Sangpo).
We need to take advantage of the Chinese government's desire to build
better relations with the United States by pressing Beijing to release
more prisoners, and to reduce the sentences or otherwise improve
treatment of those still held. The time for action is now.
This last point needs to be stressed. What my interlocutors call
``cooperation in the area of human rights'' is heavily dependent on the
State of US-China relations. When relations are good or improving,
Beijing is more likely to release prisoners than when relations are bad
or deteriorating. My own work has been greatly affected over the years
by disputes between Washington and Beijing over the perennial issue of
Taiwan.
recent developments
The Bush Administration is engaged in one of the most intensive
efforts ever mounted by an American administration to win the release
of political and religious detainees in China. Assistant Secretary of
State Lorne Craner has made it clear to his Chinese counterparts that
he is not interested in participating in a ``talk shop,'' but that he
expects concrete results from the official human rights dialog. By
results he means plentiful and accurate information on cases, and the
release and better treatment of prisoners. In October, he obtained from
his Chinese counterparts detailed information on 68 of 74 prisoners
about whom he had submitted enquiries, and the unprecedented Chinese
response has provided us with a roadmap for working on a number of
important cases. It is no coincidence that the first name on Mr.
Craner's July list was that of Ngawang Choephel, who was released and
flown to the United States on January 20. In a decisive break with
tradition, Ambassador Clark Randt, encouraged by Congressman Wolf,
publicly called for the release of specific individuals, including
Bishop Su Zhimin, Xu Wenli, Liu Yaping, Li Guangxiang and Jigme Sangpo
during a speech to a Hong Kong audience on January 21. It is no
coincidence that the last two prisoners--a Bible ``smuggler'' for whom
President Bush showed special concern and China's longest serving
counterrevolutionary--were set free in the weeks following the
Ambassador's speech.
President Bush, on his visits to Shanghai and Beijing, has called
for more religious freedom, and as part of that call he has urged the
Chinese government to release leaders of unauthorized religious groups.
The administration has breathed life into the proposal, made when
President Clinton visited Beijing in July 1998, that China review the
sentences and release from prison people serving sentences for
counterrevolution. According to local statistics obtained during my
visit to China a month ago, I estimate that there are still more than
600 counterrevolutionaries in China's prisons. They include people like
Zhang Chengjian, who has served more than 18 years for attempting to
form a political party, Sun Xiongying, who gave pro-democracy speeches
and defaced a bust of Mao during the June 1989 demonstrations, Ngawang
Oezer, sentenced in 1989 to 19 years in prison for translating and
distributing the Universal Declaration of Human Rights in Tibetan, Liu
Jingsheng, who has served more than 10 years for trying to establish an
independent trade union, and Han Chunsheng, sentenced in 1996 to 8
years in prison for writing letters to the Voice of America.
Members of the Commission, including Senators, Congressmen and
Congresswomen, and representatives of the Administration, have been of
great help to me and my foundation as we pursue our unofficial dialog
with the Chinese government on prisoners. We have been focused on
gathering information on lesser known prisoners, some of whom--like Li
Jingdong, a recently released democracy activist in Fujian--we've found
through our research into official Chinese publications. On my last
trip to Beijing, I was given detailed information on the fates of five
Tibetan farmers sentenced in 1992 to long terms for
counterrevolutionary propaganda and incitement. Reflecting the
generally harsher treatment meted out to Tibetan prisoners, three of
the five are still in prison, serving their original sentences. (One of
the prisoners was released on medical parole, and one died while in
prison.) Their names will start appearing with more frequency on lists
submitted to Chinese officials by the American government, and by the
governments of other countries with whom we have developed cooperative
relationships.
the prisoner information registry
The Omnibus Appropriation Act of 1999 mandated the establishment by
the State Department of a Registry of Information on Chinese Prisoners.
Little was done to create this registry until Assistant Secretary
Craner, who is a valued member of this commission, took up his
position. He has made the creation of the registry a matter of top
priority, and I am honored and pleased to have assisted him on this
project. Two days ago, I presented to Mr. Craner the first fruits of
our labor--two data bases that together contain more than 6,000 names
of individuals, with supporting details, believed to have been detained
for political or religious reasons. (We have included in the data base
the names of detainees we know or believe to have been released, but
who likely remain under surveillance or endure other kinds of
restrictions.) One data base contains the names of more than 4,000
detainees about whom non-governmental organizations have obtained
information from a variety of unofficial sources. The other data base
contains the names of more than 2,000 detainees whose existence has
been revealed in officially authorized Chinese publications.
I am especially proud of the work my colleagues at Dui Hua have
done in uncovering the names of hitherto unknown detainees. We have
surveyed thousands of documents, amassing names of detainees,
statistics on political crime, and laws and regulations that govern the
treatment of prisoners, unauthorized religious groups and national
minorities. About 80 percent of the names that we've found in nearly 3
years of archival work are of detainees whose names do not appear in
any governmental or non-governmental data base outside of China. We
have submitted roughly 450 of these names to the Chinese government,
and asked for its help in finding out their present circumstances.
I know that Assistant Secretary Craner is eager to provide to this
commission the data base that Dui Hua has created and which Dui Hua
will be continuously updating and improving. One of the jobs of this
commission is the establishment of its own prisoner registry, and for
this task the State Department's Registry will be of considerable
value.
Prisoner registries, accessible on-line, will be valuable tools in
the effort to secure the release of people detained for the expression
of their political and religious beliefs. It is now possible to
generate a multitude of prisoner lists containing the most current
information, each for a specific event--a trip to China by a
Congressional delegation (separate lists can be generated for each city
visited), the participation of an American delegation in an
international human rights forum, the preparation of reports on human
rights conditions in China, the visit of a senior Chinese leader to the
United States. Lists of prisoners eligible for medical parole, or good
behavior parole, can be compiled. Lists of imprisoned labor leaders,
house church pastors and Catholic priests, journalists and scholars can
be generated and handed over by American groups meeting with their
Chinese counterparts.
In another time, and for another purpose, our country was an
``arsenal of democracy.'' This commission, by marshalling resources and
fashioning tools made possible by advances in technology, and by
undertaking forceful advocacy on behalf of political and religious
detainees, can become an ``arsenal of human rights,'' a vital source of
support for those inside and outside China working to bring about
respect for human rights and rule of law. The Dui Hua Foundation stands
ready to help this commission in fulfilling its promise.
Thank you for inviting me to participate in this important hearing.
______
Prepared Statement of Jonathan Hecht
april 11, 2002
Thank you Senator Baucus, Congressman Bereuter, and the other
members of the Commission for inviting me to speak here today.
I have been working on legal reform and human rights in China for
the past 12 years. I have done this in a number of different
capacities. For 4 years, as a Program Officer in the Beijing office of
the Ford Foundation, I made grants in China to support research and
advocacy on human rights and related legal issues, to strengthen legal
education and training, to promote village elections and other forms of
popular participation, and to establish China's first nongovernmental
legal aid centers. I have been an adviser to the United Nations High
Commissioner for Human Rights on how to develop its new program of
assistance for Chinese legal reform. I have been an analyst and
consultant on Chinese legal developments for human rights groups here
in the United States. And in 1999, I helped found The China Law Center
at Yale Law School, where in addition to teaching and conducting
research on Chinese law, we are developing and carrying out cooperative
legal reform projects between United States and Chinese legal experts,
many of them with important human rights implications.
As Congress recognized in establishing this Commission, it is
vitally important that China make progress on human rights. This is
important first and foremost for Chinese themselves, who have long
lived under political systems that denied them fundamental freedoms and
are now navigating a difficult transition toward a market economy and,
hopefully, a more open society. But it is also important for the rest
of the world. China's emergence as a global power is one of the most
important geopolitical events of our lifetimes. It is essential that
the China that emerges from this process is one that respects
individual liberties and its internationally binding commitments on
human rights. Progress on human rights in China is also vital to the
United States. Our relationship with China is one of our most important
bilateral relationships. It cannot be truly cooperative until the human
rights situation in China improves.
Based on my experiences over the last 12 years, I believe that
legal reform can help foster respect for human rights in China. Prior
witnesses before this Commission have described the progress that China
has made in developing its legal system since 1978, as well as the
great deficiencies that still exist. As their testimony has shown, law
is playing a vastly expanded role in China today. Whereas under Mao law
was viewed solely as a ``tool of the proletariat dictatorship,'' it is
now being called upon to play multiple roles in economic and social
life, including defining rights and establishing institutions and
procedures for their protection. In many respects Chinese law still
falls far short of international human rights standards. We see this
every day in the Chinese government's use of the legal system to
suppress political dissidents, religious groups, labor activists, and
many others. However, as paradoxical as it may seem, law is
simultaneously the principal medium through which Chinese are engaging
in debate and experimentation about human rights and the closely
related issues of the predictability, transparency, and accountability
of State action.
The increasingly explicit human rights dimensions of Chinese law
are reflected not only in theory but also in a range of legislation
adopted since the late 1980's. Some of the most important legislation
has been in the area of administrative law, which seeks to guide and
even limit State power in China's increasingly market-oriented society.
The 1989 Administrative Litigation Law created the first procedural
basis in Chinese history for private parties to seek judicial review of
the acts of State agencies and officials. This was followed in 1994 by
a statute governing compensation for damages resulting from illegal
State actions and in 1996 by the Administrative Penalties Law, which
seeks to strengthen procedural safeguards for persons subject to
administrative sanctions. Over the course of the early 1990's, China
also adopted a series of new laws on the rights of traditionally
disadvantaged groups such as women, children, and the handicapped. The
protection of human rights has even become a legitimate objective in
highly sensitive areas such as criminal justice, where efforts have
been made to curb police powers of detention, enhance the role of
defense lawyers, and make trials more open and fair.
These new laws contain serious flaws in conception and face many
obstacles in implementation. Reformers within China are working to
highlight these problems and to press for further change. In the
meantime, Chinese themselves are making increasing use their expanded
legal system. The number of cases in the Chinese courts, including
successful suits against the state, has risen dramatically in the last
decade. In addition, new groups have emerged to advocate for improved
legal protection of rights, often through legal aid centers for women's
rights or administrative litigation or the environment. As this shows,
legal reform and other developments in China are creating increased
rights consciousness and higher expectations for the legal system. This
is a very important trend, for law should not only foster respect for
human rights. It should also be a means by which individuals can demand
respect for human rights.
Another recent trend in legal reform in China with important
implications for human rights is the increased focus on structural
reform. With greater use of law to order economic and social affairs
and protect rights, more attention is being paid to the institutions
necessary to make that law work in practice. In the last few years,
recognition of the seriousness of the problems legal institutions face
in China (including corruption, incompetence, and outside interference)
has triggered widespread interest in ``judicial reform.'' Encompassing
prosecutors, police, and lawyers, as well as the courts themselves,
``judicial reforms'' adopted or under consideration include increasing
the transparency of legal proceedings, restructuring the relationship
between the courts and local governments to reduce interference in the
judiciary, modifying the internal structure of courts to give trial
judges more power, allowing lawyers to play a more active role on
behalf of their clients, and generally broadening the role of courts in
adjudicating disputes, including suits against the government. These
reforms touch on fundamental and often sensitive issues, including the
relative independence and power of different institutions. As such they
are complex and controversial and their implementation has sometimes
been partial at best. But the fact that they are now being considered
and debated shows that legal reform in China has reached a new stage of
potentially great significance for the protection of human rights.
In addition, as law has become more central to life in China, the
resources for further legal reform have become stronger. Whereas China
had only two functioning law schools at the end of the Cultural
Revolution, today it has more than three hundred. The scholars at these
law schools and at legal think tanks represent a tremendous source of
intellectual talent and reformist energy. In the last 10 years, Chinese
legal scholars have pioneered work in human rights theory and
constitutional law, established China's first public interest law
centers, and spearheaded legislative advances in criminal procedure and
administrative law. Following China's signature of two major
international human rights treaties in 1997 and 1998, many of them are
now openly advocating further reforms to bring Chinese law into
conformity with international standards. Two decades of legal reform
have likewise profoundly altered China's legal professionals. While
problems of judicial corruption and incompetence remain quite serious,
judges in China today are far better educated and more sophisticated
than 20 years ago, especially at higher levels of the system. The
transformation of the bar has been even more dramatic. Whereas China
had less than 2000 lawyers in 1978 and only 30,000 as recently as 1990,
by the late 1990's the number had topped 100,000. In the course of
these developments, the old concept of the interchangeable ``political-
legal cadre'' has given way to a stronger sense of the distinctive
institutional interests and outlooks of judges, prosecutors, and
lawyers. Together with greater awareness of the way in which their
foreign counterparts work, this has stimulated important reforms,
especially in criminal cases, to differentiate more clearly among their
respective roles and thereby increase the transparency and fairness of
the legal system.
The acceptance of human rights as a legitimate objective of the
legal system, the growth of legal consciousness, the increasing
emphasis on structural reform, and the emergence of a large number of
sophisticated legal experts committed to rights--these are all
significant advances that mean legal reform in China can and will
continue to foster respect for human rights. But we must also honestly
recognize that law as a force for change in China has real limits: new
legislation is often vague and leaves too much discretion to lower-
level officials; implementation is often incomplete and founders for
lack of complementary reforms; the skills and integrity of legal
professionals are often suspect. Moreover, while modern law carries
with it values of rights, predictability, and accountability, it tends
to reflect changes in society as much as it drives them. Fostering
respect for human rights in China will thus depend on many other
factors besides just law, especially given China's socialist legacy
(which made individuals dependent on the State for every aspect of
their lives) and its much longer authoritarian legacy (which has
inculcated a tradition of deference to political authority).
In addition, while there is a significant and growing ``bottom-up''
factor to legal reform in China, China is still in many ways a ``top-
down'' society. There must be the political will among Chinese leaders
for greater rights protection if that is going to become a full
reality. Such will does exist in some areas, in part because even
China's leaders are not immune to broader social trends, and in part
because it is in their interests to restrain wayward officials. But
there are still many areas in China where law is simply irrelevant,
where the legal system is manipulated by the Chinese Communist Party to
target its opponents, or where legal ``reform'' actually serves to
deprive individuals of their internationally recognized human rights.
Thus while law in China can foster respect for human rights, it
will not necessarily always do so. This means that we, in seeking to
promote human rights, must think carefully about where and how to
support legal reform efforts in China. We should be choosing to work in
areas of the Chinese legal system where there is real potential for
progress. There are numerous possibilities, but at present, some of the
most promising work is in the area of ``judicial reform,'' including
steps to enhance the transparency, competency, and fairness of criminal
and civil cases and strengthen the courts' ability to review State
action under the Administrative Litigation Law and other statutes.
Further efforts should also be made to promote the development of
administrative law to increase the openness and predictability of
government action and enhance opportunities for Chinese to participate
in rulemaking and decisions that affect their interests.
We must also pick our Chinese counterparts carefully, to ensure
that they are both influential in legal reform and genuinely committed
to rights protection. In order to have the greatest impact, outside
support should focus on institutional reforms that cut across a broad
range of legal fields and provide a structural basis for human rights
protection. Since institutional change is complex and slow, even under
the best of circumstances, outside support for legal reform in China
must also be sustained, providing reformers with a range of practical
alternatives that they can tailor to the unfolding reform process.
Finally, support for legal reform within China must be combined
with other approaches, including forthright criticism of the many
respects in which Chinese law does not meet international human rights
standards. The past has shown that, when well informed and combined
with targeted support for reformers within China, outside criticism can
play a significant role in promoting positive change in the Chinese
legal system.
I believe that this Commission can play a particularly valuable
part in these efforts. Through the work of its members and professional
staff and through hearings such as these today, the Commission can
document the course of Chinese legal reform, its current state, and its
achievements and shortcomings in protecting human rights. This will
create a baseline for monitoring the Chinese legal system and
criticizing its failings in an informed and effective manner. At the
same time, the Commission can create a road map of the possibilities
for further reforms and the particular ways in which people and
organizations in the United States and elsewhere can contribute
meaningfully to legal reform and human rights in China.
I thank you again for inviting me to speak today and I look forward
to answering any questions you may have.
______
Prepared Statement of T. Kumar
april 11, 2002
Thank you Senator Baucus, Representative Bereuter and distinguished
Members of the Congressional-Executive Commission on China for
providing Amnesty International the opportunity to testify at this
important hearing. We have documented human rights in China for
numerous years. Our research shows that disregard for the rule of law
is pervasive in China and one of the fundamental causes of the human
rights abuses which occur in China. On this note Mr. Chairman, Amnesty
International would like to express its appreciation for holding this
hearing on this important subject.
importance of the commissions work
Amnesty International considers your Commission's work as essential
to the United States effort to promote and protect human rights in
China. Your Commission was created in the context of granting Permanent
Normal Trade Relations (PNTR) status to China as a means of maintaining
vigilance to monitor human rights and to track the development of rule
of law in China. Until PNTR status was granted to China, every year the
Congress analyzed and debated the human rights situation in China. This
annual debate proved to be an important element in highlighting gross
human rights abuses in China. The PNTR debate kept China at check on
its human rights practices. Your Commission was established not only to
fill the role of closely scrutinising China's human rights practices
but also to take effective steps to get meaningful results in the
rights front. Mr. Chairman, the Commission has an obligation to keep
China at check on its human rights practices and to find ways to
improve its human rights practices.
rebiya kadeer's imprisonment
Mr. Chairman, Amnesty International would like to bring to the
Commission's attention the case of Rebiya Kadeer. Ms. Kadeer, a
successful businesswoman from Xinjiang China, was arrested while trying
to meet with Members of the Congressional Research Service and
Congressional staff. Following a trial held in secret, a Chinese court
sentenced her to 8 years' imprisonment for ``providing secret
information to foreigners.'' This case highlights the dilemma the
Commission is going to face when Commission staff visits China to meet
with ordinary Chinese citizens. Amnesty International would urge the
Commission to take note of this case and to raise it with the Chinese
authorities. We also urge the Commission to raise Rebiya Kadeer's case
in frank discussion with the Chinese Vice President Hu Jintao when he
visits Washington later this month.
current human rights situation in china
Thousands of people are arbitrarily imprisoned across China for
peacefully exercising their rights to freedom of expression,
association or belief. They include members of religious and spiritual
groups, ethnic minorities, political dissidents, labour activists,
workers and farmers, human rights defenders, and a wide range of people
who were detained simply for criticizing official corruption or
advocating reforms, or for attempting to defend their rights against
officials' abuse of power. Some are held without charge or trial under
a system of administrative detention. Others have been sentenced to
prison terms after unfair trials. Torture and ill-treatment of
detainees and prisoners remain widespread across the country, affecting
both criminal and political prisoners. Many deaths in custody resulting
from torture are reported every year. The death penalty continues to be
used extensively, arbitrarily and frequently as a result of political
interference. Many individuals are sentenced to death after unfair or
summary trials in which convictions are based on confessions extracted
under torture.
During the past year, the Chinese authorities have continued to
show willingness to adhere on a pro-forma level to the international
human rights regime, but they have pursued domestic policies which
resulted in serious human rights violations on a large scale. These
included thousands of arbitrary arrests, widespread torture, and
summary and arbitrary executions.
In April 2001, the Chinese authorities launched a ``strike hard''
campaign against crime which resulted in a massive escalation in
executions. In a 3 months period, between April and July 2001, more
people were executed in China that in the rest of the world for the
previous 3 years. Many of the executions are believed to have been
carried out after summary trials.
The authorities have also imposed new restrictions on the media and
on freedom of religion, and increased the crackdown on many groups and
individuals who are deemed to be a ``threat'' to the ``stability'' or
``unity'' of the country. Members of the Falun Gong spiritual movement
and Muslim ethnic Uighurs were the targets of particularly harsh
repression.
The crackdown on ethnic Uighurs and Muslim leaders suspected of
nationalist activities or involvement in ``terrorist'' or ``illegal
religious activities'' has intensified in the Xinjiang Uighur
Autonomous Region over the past few months. Thousands of Uighurs are
reported to have been detained as a result, and some executed after
unfair trials. Freedom of speech and religion also continue to be
severely restricted in Tibet. Scores of Buddhist monks and nuns remain
arbitrarily imprisoned, among other Tibetans serving prison sentences
for the peaceful exercise of fundamental human rights.
Falun Gong practitioners have suffered severe repression, with tens
of thousands of practitioners being arbitrary detained since the group
was banned in July 1999 and many reportedly tortured in detention. Over
300 Falun Gong practitioners are reported to have died in custody, many
of them due to torture, during the past 2 years. Members of evangelical
Protestant groups and Roman Catholics who worship outside the official
``patriotic'' churches also continued to be the victims of a pattern of
arrests, fines, and harassment. Many of those detained are reported to
have been tortured. Some were sentenced to lengthy prison terms over
the past few months.
Other groups were also the target of repression, including people
who tried to organize free trade unions or spoke out on labour issues,
political dissidents, advocates of reform, and people using the
Internet to disseminate information deemed to be ``politically
sensitive.''
``rule by law'' versus rule of law and human rights
In addition to human rights violations which result from political
repression, lack of respect for the law and arbitrariness in its
enforcement are at the basis of gross human rights violations in China.
Every year, countless numbers of people are detained without charge or
trial. For those who are charged, sentences are frequently imposed
after unfair trials. In many cases the verdicts passed at such trials
include the death penalty.
Rule of law is still understood in China to mean ``rule by law,''
reflecting a system in which the law is subordinate to political goals,
including the defeat of perceived political threats. The judiciary
lacks independence and the judicial process is subject to interference
by political authorities. The vague and contradictory provisions of the
law lead consistently to its arbitrary use and provide wide scope for
abuse of power. The combined effects of repressive and vaguely worded
criminal legislation, impunity for officials who abuse their power, and
the use of a system of administrative detention mean that anyone can be
detained at the whim of individuals in a position of power.
During the 1990's, the Chinese government has taken steps to
address some of these issues, including for example by amending the
Criminal Procedure Law (CPL). However the measures taken were far too
limited to significantly change the law enforcement and justice system.
In practice, they have failed to protect individuals in China against
arbitrary detention, unfair trials, torture and other human rights
violations. Widespread illegal practices by law enforcers, such as the
use of ``torture to extract confessions,'' which has been explicitly
prohibited by law since 1980, continue unabated, and in many cases
remain unpunished.
This testimony describes some of Amnesty International's concerns
about legislation and practices which are at the root of widespread and
serious human rights abuses in China. Further information and analysis
of laws and regulations which have a human rights impact in China can
be found in a number of Amnesty International reports, including
``People's Republic of China--Law Reform and Human Rights,'' March 1997
(AI Index: ASA 17/14/97); ``PRC--the Death Penalty in 1999,'' February
2001 (ASA 17/005/2001); ``PRC--The Crackdown on Falun Gong and other
so-called heretical organizations,'' 23 March 2000 (ASA 17/11/2000);
``Torture: A growing scourge in China--Time for Action,'' 12 February
2001 (ASA 17/004/2001); and ``China's anti-terrorism legislation and
repression in the Xinjiang Uighur Autonomous Region,'' March 2002 (ASA
17/010/2002).
the criminal procedure law
In March 1996, China's legislature, the National People's Congress
(NPC), passed substantial amendments to the Criminal Procedure Law
(CPL)--the basic law which has governed the criminal justice process in
China for the previous 16 years. The revision of this law was the most
significant legal development in China since 1979, when the CPL and the
Criminal Law were adopted. The 1979 CPL had been the basis of
widespread human rights violations, including long-term detention
without charge, torture and ill-treatment of detainees, and unfair
trials.
While the 1996 amendments improved it provisions in some respects
(see ASA 17/47/97, cited above), they also increased the potential for
incommunicado, lengthy and arbitrary detention and related abuses in
the criminal justice system. The revisions altogether left the law far
short of international fair trial standards.
Over 4 years of implementation of the 1996 revisions to the CPL
have confirmed Amnesty International's initial concerns about these
features of the revised law. Some of these are examined below.
lengthy detention without charge, trial or challenge
Under international law, ``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 shall be
entitled to trial within a reasonable time or release.'' This is one of
the basic safeguards against arbitrary arrest or detention and the word
``promptly'' is taken to mean ``a few days.'' There is no such
safeguard in Chinese law.
The Human Rights Committee has stated that ``[p]re-trial detention
should be an exception and as short as possible'' and must be lawful,
necessary and reasonable in the circumstances. The Committee has also
held that suspicion that a person has committed a crime is not
sufficient to justify detention pending investigation and indictment.
The CPL revisions increased the maximum permitted length of
detention (juliu) without charge for ordinary criminal suspects, from
10 days to 14 days (article 69) for some categories of suspect up to 37
days, and potentially indefinitely for others. CPL revisions also
extend the period of detention for investigation by the procuratorate
after charge from 3 months to 7 months. This may be extended to 9
months if the procuratorate orders the police to carry out
``supplementary investigation'' or, as in the 1979 CPL, indefinitely in
``especially major and complex'' cases, with the approval of the
National Peoples Congress Standing Committee.
When the CPL was revised, one form of administrative detention
known as ``Custody and Investigation'' (or Shelter and Investigation--
in Chinese shourong shencha), which caused widespread human rights
violations, was abolished. However, instead, categories of people who
previously fell within the scope of Custody and Investigation were
introduced into the revised CPL in a number of ways, including:
(a) As special categories of suspects who may be detained without
charge for up to 37 days (Article 69).
(b) As those ``who do not tell their true name or address, whose
status is unclear,'' for whom the time limits on detention start only
from the time ``when their status is clarified.''(Article 128 para. 2).
Meanwhile, outside the criminal justice system, the provisions on
``Custody and Repatriation'' (shourong qiansong) still provide as much
or more scope for administrative detention as ``Custody and
Investigation.'' In addition, another form of administration detention,
``Re-education Through Labour,'' which is imposed as a punishment by
executive authorities, continue to be used extensively (see below, the
section on Administrative Detention).
In addition to ``detention'' (juliu), the CPL sets out two forms of
pre-trial restriction or detention which the police may impose on their
own authority, without charge or judicial review. These are:
``Supervised Residence'' (jianshi juzhu), which is comparable to
detention, and ``Taking a Guarantee and Awaiting Trial'' (qubao
houshen).
These may be imposed on any ``criminal suspect'' (article 51)
including those against whom there is insufficient evidence to justify
arrest (article 65). These ``coercive measures'' may also be imposed
when pre-trial investigation by the police, procuratorate or the courts
cannot be concluded within the legal time limits (article 74). Whereas
the revisions to the CPL stipulated time limits for ``Supervised
Residence'' and ``Taking a Guarantee and Awaiting Trial'' of 6 and 12
months respectively, subsequent interpretations have extended the
limits to 18 months and 3 years respectively.
On paper, ``Supervised Residence'' may appear preferable to
detention, but in practice it is being widely used as a means of
detaining ``suspects'' incommunicado outside regular detention centres
away from the oversight of existing supervisory mechanisms. Torture is
frequently the result.
``Taking a Guarantee and Awaiting Trial,'' a form of bail, is the
least restrictive of all pre-trial ``coercive measures.'' Detainees,
their near relatives or legal representatives have the right to apply
for it, but there is no appeal process if their request is rejected.
Furthermore, certain categories of suspect cannot apply for it,
including those suspected of crimes ``endangering national security.''
This includes the majority of prisoners of conscience and political
prisoners known to Amnesty International.
Under the revised CPL, the police, procuratorate or the courts must
rescind or alter ``coercive measures'' if they discover they have been
``inappropriately'' taken (article 73). However detainees or their
representatives may contest their detention or restriction only on the
basis that it has exceeded the stipulated time limits (article 75).
Even then, the remedy may simply be a transfer to another type of
restriction or detention rather than release.
access to families and legal representatives--limited, discretionary
and conditional
Under the revised CPL the police should inform the family of a
detainee about their detention or arrest and place of detention within
24 hours, except where it ``would hinder the investigation'' (articles
64 and 71). In practice, communication with the family is frequently
denied until the detainee is brought to trial or sentenced.
Provisions in the 1996 CPL concerning access to lawyers are an
improvement over the 1979 CPL but still fall short of international
standards. Guaranteed access to lawyers and legal representatives is
one of the strongest protections against torture for any detainee.
However, such access during the investigation stage is not a guaranteed
right to all suspects and remains firmly at the discretion of the
investigating authorities. While this situation continues, there is
unlikely to be major progress in the fight against torture in China. In
May 2000, the U.N. Committee against Torture recommended that the
Chinese government consider abolishing the need to apply for
permission, for any reason, before a suspect can have access to a
lawyer whilst in custody.
Article 96 of the revised CPL states that a suspect ``may appoint a
lawyer to provide legal advice or to file petitions and complaints on
his behalf'' after the first session of interrogation by the
``investigative organ,'' or from the day the suspect is subjected to
one of the forms of detention or restriction provided by the law
(``compulsory measures''). Appointed lawyers have a limited role at
this stage: they can demand to be told the offense imputed to the
suspect, can apply for ``Taking a Guarantee and Awaiting Trial'' once
the suspect is formally arrested (charged), and ``may'' meet the
suspect in custody ``to enquire about the case.'' Representatives of
the investigative organs may be present at such meetings.
In cases ``involving State secrets'' prior approval of the
investigative organs is required for a suspect to appoint a lawyer or
before any meeting between lawyer and client takes place. The vague and
potentially all encompassing definition of ``state secrets'' has meant
that this provision has been heavily used to deny access to legal
representation in these cases. This has continued even after the term
was clarified in a joint communique in January 1998 which also spelt
out that no approval was required in any other cases.
Formal ``arrest'' (charge) is followed by a period of
``investigation.'' At the investigation stage (which may last for
months before procurators decide whether or not to prosecute the case),
detainees are not entitled to free legal assistance. This only becomes
a right much later on, ``at least 10 days before'' the trial, and only
for some categories of detainees. In practice, therefore, many
detainees will not have the means of accessing legal assistance for
long periods after being taken in custody. Regulations from the
Ministry of Public Security stipulate that the police must inform
suspects of their rights to appoint a lawyer at this stage, but
officials admit this is often disregarded and most suspects are unaware
of the law.
In practice, very few detainees have a legal representative during
the investigation stage of detention. Incomplete statistics from the
Ministry of Justice for 1997 and the first half of 1998 show that
lawyers were appointed at this stage in only 16.9 percent and 17.7
percent of cases respectively. Some areas report less than 10 percent .
Although an improvement on the 1979 CPL, the provisions concerning
access to lawyer in the revised CPL still mean that detainees can be
held incommunicado for weeks or months without guaranteed access to a
defense lawyer. They also place limits on the role lawyers can play in
defending their clients.
lawyers intervention--additional practical obstacles
In practice, State institutions and investigators themselves have
used a wide range of additional expedients to curtail and deny
suspect's access to lawyers. They have been assisted by ambiguities in
Article 96 of the revised CPL, the lack of definition of
``investigative organs,'' ``first interrogation,'' and ``compulsory
measures.''
State organs authorized to detain suspects have sought to exclude
themselves from the remit of the law. The Customs authority, for
example, works closely with the Ministry of Public Security
investigating drug trafficking cases and smuggling cases which have
been a major focus of a corruption crackdown in recent years. The
Custom authority has the legal power to ``Detain and Transfer'' (kouliu
yisong) suspects in smuggling cases. In a recent notice the authority
stated that such detention was not one of the ``compulsory measures''
under the CPL, so requests from lawyers to see clients during Detention
and Transfer should be denied.
Through local ``internal'' implementing regulations, limits have
been set on the duration and number of meetings allowed between lawyers
and clients. The police in several regions reportedly implement a
complicated approvals process for all requests concerning access to
lawyer, so that the Ministry of Public Security regulations that a
lawyer's visit should be approved within 48 hours, or 5 days in
``complex cases,'' are not followed in practice. In several recent
cases, lawyers appointed by a suspect's family have been obstructed
with many different excuses before being informed several weeks later
that the suspect ``does not want to see a lawyer.'' They have no power
to verify or challenge this response. Lawyers seeking access away from
their hometown are particularly susceptible to these blocking tactics.
Lawyers have also complained that there is completely inadequate
provision of meeting rooms in many detention centres, resulting in
costly waiting and delay, and that, when they attempt to exercise their
functions to apply for medical bail or to complain at detention beyond
legal time limits, they frequently receive no reply.
As for pursuing allegations of torture, one defense lawyer has
stated: ``The use of torture to obtain a confession is something
defendants often raise, but it puts us in a very delicate situation
since we need facts and evidence to back up these claims . . . but it
is very hard to gather evidence because it is almost impossible to get
access to clients at these times.''
In one high profile case which demonstrates the occupational
hazards for defense lawyers, a rural Binhai County Court sentenced a
young lawyer to 1 year imprisonment suspended for 2 years for the new
crime of ``interfering with witnesses.'' Liu Jian, from Nanjing City
was prosecuted for his efforts to assist a client who claimed that his
confession to bribe taking had been extorted through torture. Liu Jian
was denied meaningful access to his client until 1 week before the
trial. Then he found major discrepancies between his client's account
and the details of the crime presented in the indictment. He tracked
down many witnesses to prove the prosecution's distortion, but most
failed to appear when the trial began on 13 July 1998. They had
reportedly been threatened against interfering in this high profile
corruption case. There was no halt in the trial when the defendant
retracted his confession. Instead it was reinstated on the basis that
he had failed to bring up allegations of torture during his 4 months of
pre-trial detention.(In fact the defendant had raised the allegations
the first time he had met his lawyer out of earshot of prosecutors).
The court reportedly also passed a heavier sentence as his allegations
of torture were considered to be evidence of a ``poor attitude in
acknowledging guilt'' (renzui taidu buhao). The prosecutor immediately
detained Liu Jian on accusations of ``deliberately inducing witnesses
to give false evidence'' and ``knowingly presenting false testimony.''
During 5 months' pre-trial detention Liu Jian reported he had been
denied contact with his family and was worn down by constant
interrogation. He was beaten until his mouth filled with blood for
refusing to confirm his interrogators version of events. Eventually he
read to camera a statement they prepared for him and chose to plead
guilty rather than chance justice there.
Since the revised CPL gave an enhanced role to lawyers during the
investigation period, there have been numerous reports of illegal
detention and torture of lawyers across the country. Defense lawyers
seeking to prove the innocence of their clients have also been
prosecuted for falsifying evidence, ill-treated and denied due process
even in cases attracting considerable public attention in Beijing.
There have been calls for the reinstatement of provisions granting
trial lawyers immunity from prosecution which were cut from the
original draft of the 1997 Lawyer's Law.
provisions on torture--incomplete exclusion of evidence obtained
through torture
The revised CPL repeats provisions in the 1979 law prohibiting the
use of torture to extract statements:
Article 43 (32 in 1979 CPL). . . The use of torture to coerce
confessions and the gathering of evidence by threats, enticement,
deceit or other unlawful methods are strictly prohibited.
Article 46 (35 in 1979 CPL). . . In cases where there is only the
statement of the defendant and there is no other evidence, the
defendant cannot be found guilty and sentenced to criminal punishment.
The revised CPL still does not specifically exclude the use as
evidence in court of confessions or statements extracted through
torture as required under the Convention (article 15). In recent years,
interpretations of the law and procedural regulations have progressed
and then retreated on this issue. Stipulations currently in effect are
inconsistent and confusing. None of them exclude all types of
statements extracted through all types of torture. Nor do they
comprehensively bar the use of all evidence derived from such
statements.
Before revisions to the CPL, on March 21 1994, the Supreme People's
Court (SPC) adopted ``Specific Regulations on Criminal Adjudication
Procedures,'' which stipulated:
. . . Any witness testimony, victim's statement, defendant's
confessions verified to have really been (jing chazheng queshi)
obtained through torture to extract a confession, threats, luring,
deceit, or other illegal methods, cannot be used as evidence (buneng
zuowei zhengju shiyong).
This has been superseded by what appears to be a weaker conditional
provision in the SPC ``Decision on Specific Issues in the
Implementation of the CPL'' (effective 8 September 1998) which
stipulates only that such statements: ``. . . cannot become the basis
for determining a case (buneng zuowei ding'an de genju).''
Several legal sources in China maintain that this does not even
amount to full exclusion of the types of coerced statements listed.
They may be still be used to ``supplement'' the major evidence used to
determine a case. Moreover, material evidence derived from such coerced
statements would not be excluded either.
The Supreme Peoples' Procuratorate followed the same language as
the SPC in their ``Rules on Implementing the CPL'' (effective 18
January 1999):
265: Criminal suspects' confessions, victims' statements, and
witness testimonies collected through torture to extract a confession
(xingxun bigong), or threats, enticement, cheating and other illegal
methods cannot become the basis for a criminal charge (buneng zuowei
zhikong fanzui de genzhu).
In practice there are also numerous practical obstacles to such
verification. Sources also highlight that, however significant this SPC
interpretation may be, it only binds judicial organs and does not
directly bind administrative organs like the public security apparatus.
Significantly, numerous regulations from the Ministry of Public
Security, which is responsible for the majority of State officials
involved in interrogation, do no more than repeat the general
prohibitions against torture in CPL article 43.
Other experts maintain that, a confession or statement extracted
through torture may also be legally ``recollected'' for use as evidence
at trial. That is, if a suspect agrees to repeat statements which were
initially extracted through torture, these may be admissible.
There are growing calls in China for full and firm exclusion of
evidence extracted by torture and other illegal means. Commentators
argue that without it efforts to eradicate torture have little hope of
lasting success.
Amnesty International believes China's Criminal Procedure Law
should be revised as a matter of urgency to explicitly exclude the use
of all evidence extracted through torture of any kind. The same
exclusions should also apply in any determination of administrative
punishment.
no right to silence or to avoid self-incrimination
Amnesty International believes the right of an accused to remain
silent during the investigation phase and at trial is inherent to the
presumption of innocence and an important safeguard of the right not to
be compelled to confess guilt or testify against oneself. Currently the
CPL states:
Article 93: When interrogating a criminal suspect, the
investigators shall first ask the criminal suspect whether or not he
has committed any criminal act, and let him State the circumstances of
his guilt or explain his innocence; then they may ask him questions.
The criminal suspect shall answer the investigators' questions
truthfully, but he shall have the right to refuse to answer any
questions that are irrelevant to the case.
Legal analysts in China argue that the duty to answer fully and
truthfully puts the suspect at great disadvantage: it legitimizes the
investigator's use of ill-treatment and demonstrates that the
presumption of guilt is still the reality. The established practice of
exercising ``leniency to those who confess, severity to those who
resist'' (tanbai congkuan, kangju congyan) has a similar effect.
trial process and presumption of innocence
The CPL revisions introduced some positive changes in the
provisions related to the trial process. Despite that, however, the
revised CPL still fails to conform to international standards for fair
trial, including the right to a defense lawyer at all stages of the
criminal process, the right to have adequate time and facilities to
prepare the defence, the right to be presumed innocent and the right to
a public trial by an independent and impartial tribunal.
As noted earlier, the right to defense is still limited during pre-
trial detention and only some detainees have a clear entitlement to
free legal assistance ``at least 10 days'' before the trial. It is also
at this time that defendants are entitled to receive a copy of the
indictment and have full access to the evidence against them. In many
cases, 10 days is likely to be grossly insufficient to prepare an
adequate defense. In contrast, the police and procuracy may have had
months to buildup evidence against the accused.
In addition, the revised law still fails to guarantee the defense's
right to examine prosecution witnesses and to call new witnesses in
court. Witnesses' testimony can still, as previously, be presented in
writing (Article 157) and, when witnesses are called in court, cross-
examination is subject to approval by the chief judge (Article 156).
This may therefore be denied at the chief judge's discretion. As to the
right to call new defense witnesses in court, this is at the discretion
of the trial court (Article 159).
The revised law also fails to guarantee public trials in all cases:
it retains a clause of the original law which allows cases involving
``state secrets'' to be tried in camera (Article 152). In such cases,
only the verdict is to be announced ``in public,'' which in practice
usually means in the presence of close relatives of the accused or
other people selected by the authorities.
When the amendments to the CPL were passed, some commentators
stated that the law now included the presumption of innocence--a
fundamental principle of fair trial in international law. This
assumption was based on the inclusion of a new provision in the law,
which reads: ``No one shall be determined guilty without a verdict
according to law by a people's court'' (Article 12). This article,
however, does not speak of presumption of innocence. All it says is
that the only legal means to ``decide'' (queuing) guilt is a verdict by
a court, and by extension, that only the courts have this power.
According to some experts, the inclusion of Article 12 in the revised
law is related to controversy about a procedure known as ``exemption
from prosecution'' which, under the 1979 CPL, gave the procuracy the
power to determine guilt. This procedure has been modified in the
revised law.
Article 12, however, does not touch upon questions which are
central to the presumption of innocence, such as the burden and
standards of proof. One article in the revised law, retained from the
1979 CPL, appears in fact to place the burden of proof on the defense.
It reads, in relevant part: ``The responsibility of a defender is, on
the basis of the facts and the law, to present material evidence and
opinion proving that the criminal suspect or defendant is innocent,
that his crime is minor, or that he should receive a mitigated
punishment or be exempted from criminal responsibility. . . ''
(Article 35, revised CPL; Article 28 in the 1979 CPL). While this
article can be interpreted in various ways, the law still does not give
the defendant the benefit of the doubt.
Some moves were made in the revised CPL in the direction of
presumption of innocence, notably through a change in the terminology
used to designate detainees--as ``suspects'' and ``defendants,'' rather
than as ``criminals'' prior to the revisions. However, the pre-trial
detention process in China is still heavily weighted against detainees,
denying them many of the rights which are associated with the
presumption of innocence.
provisions on the death penalty
Under the revised CPL, all defendants facing the death penalty
should receive notice of the trial and of the right to a defense
lawyer, as well as a copy of the indictment, at least 10 days before
the trial starts. Those who have not hired a defense lawyer have the
right to have one appointed for them at that stage by the court hearing
the case (Articles 34 and 151). While this is an improvement over the
1979 CPL, this still leaves very little time to prepare an adequate
defense in death penalty cases. International standards require that
people charged with offenses for which the death penalty may be imposed
be given ``adequate legal assistance at all stages of the
proceedings.''
The revised CPL also stipulated that all death sentences have to be
approved by the Supreme People's Court. In presentations to U.N.
bodies, Chinese diplomats presented this as a significant safeguard
against overuse of the death penalty in China. However, subsequent
legal interpretations issued by the Supreme People's Court (SPC) have
delegated powers of final approval back down to the High People's
Courts and the Military Courts for the majority of crimes liable to the
death penalty. Some legal analysts in China have described this as
unconstitutional as it nullifies an additional safeguard for defendants
set out in national law.
The delegation to the high courts of the power to approve death
sentences means that the procedure for approval of the death sentence
is usually amalgamated with that for appeal or review of the case, also
carried out by the high courts in most cases. This indeed amounts to
nullify the safeguard initially provided in the revised CPL. In
addition, the revised CPL includes no mechanism allowing prisoners
sentenced to death to seek pardon or commutation of the death sentence,
which is an internationally recognized right.
International standards generally require that the most careful
legal procedures and all possible safeguards for the accused be
guaranteed in death penalty cases, including the right to a fair and
public hearing by a competent, independent and impartial tribunal, the
presumption of innocence, the right to have adequate time and
facilities to prepare the defence--including, as noted above, the right
to have adequate legal assistance at all stages of the proceedings--and
the right to seek pardon or commutation of the sentence. These
safeguards, however, remain unavailable in China.
The revised CPL retains a provision which bans public executions,
but it still fails to prohibit the public display and humiliation of
prisoners sentenced to death, which is a common practice. Prisoners
sentenced to death are frequently paraded in public--with their hands
tied behind their back, a placard around their neck listing their names
and crimes, and their head forced down by guards--at ``mass sentencing
rallies'' or in parades of trucks through the streets on their way to
the execution ground. In May 2000, Chinese government representatives
reported to the U.N. Committee Against Torture that: ``China prohibits
the practice such as parading in the streets the criminals to be
executed, hanging big character name posters on criminals or tying them
up with ropes. The people's courts at all levels have done a great deal
of work to reduce and eliminate such practice. At the moment such
phenomena no longer exist. Should they occur in some individual places,
they will be seriously dealt with according to law.''
However, whilst several regulations indeed ``outlaw'' this
practice, it remains common and is resorted to particularly frequently
as a means of warning potential offenders during the campaigns against
crime periodically launched by the government. Some Chinese legal
scholars have advocated banning this practice in national law, but no
consideration appears to have been given to this suggestion so far. The
revised CPL also fails to include provisions allowing prisoners
sentenced to death to see their family before execution, which has also
been advocated by some legal scholars in China. This is only granted at
the discretion of the authorities.
Amnesty International is also concerned at other aspects of the
treatment of prisoners sentenced to death, which constitute cruel,
inhuman or degrading treatment. It is common practice for condemned
prisoners to be kept in shackles (hands and feet) at least from their
first trial until execution. They are frequently subjected to a
particularly cruel form of shackling hands and feet together (termed
dilao and ``dragon board'') which clearly inflicts severe pain and
amounts to torture. Amnesty International has also received reports of
condemned prisoners being shackled, arms and legs splayed, to bed
boards for many months awaiting execution.
The use of leg irons is prohibited by international standards and
the prolonged use of other instruments of restraint is also considered
in some circumstances to amount to ill treatment. Prison and detention
centre regulations in China specifically exclude those awaiting
execution from time limits on the use of shackles and other restraining
instruments and solitary confinement.
administrative detention--re-education through labour
The system of ``re-education through labour''--a form of
administrative detention imposed as a punishment--is based on a
Decision passed by the National People's Congress in 1957, which was
later updated with new regulations. This legislation remains in force.
According to a definition given by an official legal newspaper, ``re-
education through labour'' is a punishment for actions which fall
``somewhere between crime and error.''
``Re-education through labour'' involves detention without charge
or trial for up to 3 years, renewable by 1 year, in a forced labour
camp. It is imposed by local government committees usually presided
over by police officials. It applies to people who are regarded as
troublemakers or those accused of committing minor offenses which are
not regarded as amounting to ``crime'' and which therefore are not
prosecuted under the criminal justice system. Detainees liable to
receive terms of ``re-education through labour'' have no right of
access to a lawyer. Under the regulations on ``re-education through
labour,'' people who can be subjected to this punishment include those
who are classified as being ``counter-revolutionary,'' ``anti-Party''
or ``anti-socialist,'' as well as people who ``behave like hooligans,''
such as by engaging in fights, smuggling or prostitution, or by
disturbing public order or ``the order of production'' in other ways.
According to official statistics, in 1996 there were 200,000 people
in ``re-education through labour'' camps in China. By early 2001, the
number had increased to 260,000. Over the past 2 years, the use of this
form of detention has increased particularly against Falun Gong
practitioners and during the ``strike hard'' campaign against crime
launched by the Chinese authorities in April 2001. Other victims
include political dissidents, members of religious groups and a wide
range of people accused of ``disturbing public order,'' including
prostitutes.
One argument frequently used by Chinese officials to justify ``re-
education through labour'' is that this punishment does not have the
stigma of a criminal punishment and that it involves less stringent
conditions of detention than a term of imprisonment. In reality,
however, the conditions of detainees in labour re-education camps are
often similar to those of convicted prisoners, and they often face the
same difficulties finding employment after their release.
If one compares ``re-education through labour'' with criminal
punishments, one may also question the justification for imposing a
punishment varying from 1 year to 3 years of detention in a forced
labour camp in cases which are not considered serious enough to be
prosecuted and tried under the Criminal Law, whereas those convicted of
``crimes'' under the Criminal Law can receive light punishments such as
``control'' (which involves supervision within the community for
periods varying from 3 months to 2 years), or ``criminal detention''
(which involves between 15 days and 6 months of detention).
the martial law
The Martial Law of the PRC was promulgated on 1 March 1996 by the
Standing Committee of the NPC. It provides that martial law can be
imposed, either locally or in the whole country, in response to
situations vaguely defined as ``turmoil, riot or disturbance'' where
``only emergency measures can help preserve social order and protect
the people's lives and property.''
This law gives the national and local governments the power to
suspend constitutional rights during such a State of emergency. It
provides that the ``martial law enforcement institutions'' can ban or
restrict assembly, parades, demonstrations, public speeches and ``other
group activities.'' They can also ban strikes, impose press censorship,
control correspondence and telecommunications, and ban ``any activity
against martial law.''
The personnel in charge of executing martial law--which can be the
police, the People's Armed Police, or military units--are given wide
powers to carry out arrests under the Martial Law. They can detain and
search people violating curfew regulations, ``criminals or major
suspects endangering State security or undermining social order,''
people who obstruct or defy ``the implementation of martial law
tasks,'' and basically anyone suspected of opposing martial law.
Martial law enforcement personnel also have the power to use
``police instruments'' to disperse by force crowds or groups of people
involved in ``illegal'' gatherings or demonstrations, or causing
``disruption of traffic order,'' and to immediately detain the
organizer or individuals who do not obey orders in such situations.
The Martial Law further specifies that, for those detained or
arrested during martial law, the procedures and time limits provided by
the Criminal Procedure Law for detention or arrest will not apply,
except for the procedure which requires that ``arrest'' (charge) be
approved by the procuracy.
The law allows martial law enforcement personnel to use ``guns and
other weapons,'' ``if police instruments prove to be of no avail,'' in
various situations where violence occurs or there is a threat of the
use of violence. This includes situations where a person detained, or
transported under escort, commits a physical assault or ``attempts to
get away.'' The law sets no limit on the amount of force to be used in
such situations and does not specify that force must be used only when
strictly necessary and must be proportionate to the threat of violence.
Amnesty International is concerned that the Martial Law permits
restrictions to the exercise of basic rights which go beyond those
envisaged under international standards. The declaration of a State of
emergency is an expression of the rule of law, not the abrogation of
it, and emergency measures must not be introduced as a means of
suppressing legitimate rights.
International standards set strict limits on the scope of
restrictions which may be enforced under a State of emergency and
specify that such restrictions may only occur ``in time of a public
emergency which threatens the life of the Nation and the existence of
which is officially proclaimed.'' The Martial Law of the PRC goes far
beyond this by providing that martial law, and the restrictions it
involves, can be imposed in response to a local situation of ``turmoil,
riot or disturbance.''
Furthermore, some rights are so fundamental that they can never be
suspended, even during a State of emergency. Under international
standards, the rights which can never be derogated from include the
right to life, the right not to be tortured or subjected to cruel,
inhuman or degrading treatment or punishment, and the right to freedom
of thought, conscience and religion. In Amnesty International's
experience, violations of the non-derogable rights to life and freedom
from torture often occur during an emergency when security forces are
given license to maintain public order with no effective executive,
legislative or judicial control. The Martial Law of the PRC gives wide
powers to the security forces and may lead to such violations.
International standards also limit the restrictions that can be put
on all other rights during a state of emergency. They specify that the
exercise of rights other than the non-derogable rights can be suspended
by a State only ``to the extent strictly required by the exigencies of
the situation'' and as a temporary measure. The Martial Law of the PRC
does not contain any such limitations. Its provisions are so vague that
they would permit the arbitrary suspension of rights, such as the right
not to be arbitrarily detained, the right to fair trial, and the rights
to freedom of expression, association and peaceful assembly.
the criminal law--recent amendments concerning provisions on terrorism
Amnesty International is concerned about many provisions of the
Criminal Law, notably provisions concerning ``state security'' and
``state secrets'' offenses, which are frequently used to imprison
people for the peaceful exercise of fundamental human rights, and
provisions which include the death penalty as a punishment for over 60
offenses, including many non-violent crimes. These concerns have been
examined in other reports and this testimony describes only recent
amendments made to the Criminal Law concerning its anti-terrorism
provisions.
On 29 December 2001, the Standing Committee of the National
People's Congress (NPC--China's legislature) adopted amendments to the
Criminal Law. The stated purpose of the amendments, which entered into
force the same day, was to ``punish terrorist crimes, ensure national
security and the safety of people's lives and property, and uphold
social order.''
Prior to the adoption of the amendments, the Criminal Law already
included provisions punishing some ``terrorist'' crimes in a section of
the law dealing with ``Crimes of Endangering Public Security.'' Most of
the amendments adopted in late December 2001 modify existing articles
in that section of the law.
The main changes brought about by the amendments are described
below, together with Amnesty International's concerns about some of the
amendments or existing provisions:
Two amendments have been made to Article 120 of the
Criminal Law. The first one increases the punishments for people who
``organize or lead a terrorist organization.'' Prior to the amendments,
this was punishable by between three and 10 years' imprisonment--this
has now been increased to between 10 years' and life imprisonment.
Under this article, ``active'' participation in a ``terrorist
organization'' is punishable by between three and 10 years'
imprisonment, and ``other participants'' can be punished by up to 3
years' imprisonment. The second amendment to this article is the
addition of a new clause punishing those who ``fund terrorist
organizations or individuals engaging in terrorist activities.'' This
is punishable by penalties ranging from fines to maximum 5 years'
imprisonment, except ``when the circumstances of the case are
serious,'' in which case 5 years' imprisonment is the minimum
punishment. No maximum is specified.
Amnesty International is concerned that the provisions of Article
120 make it a criminal offense to be a member, leader or organizer of a
``terrorist organization'' even if the individual does not commit any
other illegal act. The term ``terrorist organization'' is not defined
in the law and could be interpreted as referring to peaceful political
opposition or religious groups.
Amnesty International is also concerned that the new clause added
to Article 120 does not specify a maximum punishment, thus potentially
making the ``funding'' of ``terrorist organizations'' or ``individuals
engaging in terrorist activities'' liable to the death penalty, as
other provisions of the law examined below.
Four of the amendments add new provisions in Articles 114,
115, 125 and 127 of the Criminal Law to punish the ``dissemination,''
or ``illegal manufacturing, trading, transporting or storing,'' or
``the stealing or seizing or plundering,'' of ``poisonous or
radioactive substances or contagious-disease pathogens.''
This is in addition to existing provisions in these articles which
punish ``causing fires, floods or explosions, or using other dangerous
means that harm public security'' (Article 114), or the same acts as in
Article 114 that ``lead to serious injury or death or cause major
damage to public or private property'' (Article 115), or the illegal
manufacturing, trading, transporting or storing of firearms, ammunition
or explosives (Article 125), or the stealing or seizing or plundering
of firearms, ammunition and explosives (Article 127).
The punishments provided in these articles remain unchanged.
Articles 115, 125 and 127 all provide punishments ranging from varying
terms of imprisonment to the death penalty. Therefore, the new range of
offenses related to the use of ``poisonous or radioactive substances or
contagious-disease pathogens,'' which have been added in articles 115,
125 and 127, are also liable to be punished by death, including for
example the illegal transporting or storage of such substances.
Amnesty international is concerned that the amendments to these
articles enlarge the scope of the death penalty in China.
Two amendments have been made to Article 191 of the
Criminal Law. This article punishes illegal financial operations or
gains related to a range of crimes, including narcotics and smuggling
crimes. One of the amendments has now added ``terrorist crimes'' to
this range of crimes. The second amendment provides that, when such
crimes are committed by a ``work unit,'' punishments will now range
between five and 10 years' imprisonment if the ``circumstances are
serious''--i.e. a heavier punishment than previously provided.
The last amendment is a new clause added to Article 291 of
the Criminal Law. The existing provisions in Article 291 punish people
who ``disturb social order'' by gathering in public places, blocking
traffic, or obstructing agents of the State from carrying out their
duties; the punishments for these offenses ``if the circumstances are
serious'' range from ``public surveillance'' to maximum 5 years'
imprisonment.
The new clause added to Article 291 provides that ``whoever
seriously disturbs social order by disseminating false explosive,
poisonous or radioactive substances or contagious-disease pathogens, or
by fabricating threats or information about an explosion or biological
or radioactive threat, or by knowingly disseminating fabricated threats
or messages'' is to receive punishments ranging from 'public
surveillance' to 5 years' imprisonment, or ``if serious consequences
have been caused'' a sentence of minimum 5 years' imprisonment. No
maximum sentence is specified.
Amnesty International is concerned that the language used in this
article is vague, leaving the door open to wide interpretation. It is
not clear what the ``dissemination'' of ``false'' explosives or
substances or of ``fabricated threats and messages'' might mean, nor is
it clear what would constitute ``serious consequences.'' The vagueness
of these provisions therefore opens the possibility that this clause
may be used to punish people peacefully exercising their right to
freedom of expression. This concern is increased by the fact that the
provisions of Article 291 have been frequently used in the past to
imprison people criticizing the government or expressing their views
through peaceful gatherings or demonstrations. There are indications
that the new provisions in Article 291 may also be interpreted very
broadly. On 24 December 2002, in a report on the draft amendments, the
official Xinhua news agency stated that ``even joking about putting
anthrax powder in a letter can lead to a 5-year prison sentence under a
new amendment to China's Criminal Law.'' This was referring to the new
provisions in Article 291, which the news agency cited.
Amnesty International is also concerned that the failure to specify
a maximum punishment in the amendment to Article 291 raises the
possibility that those convicted of the offenses specified may be
sentenced to death if this is deemed to have caused ``serious
consequences.''
Overall, the vague wording of several articles of the law, the lack
of definition of ``terrorism,'' ``terrorist organization'' or
``terrorist crime,'' which are cited in several provisions, and the
failure to specify a maximum punishment in some of these provisions
give rise to concern that:
The lack of precision creates uncertainty about what
conduct is prohibited;
These provisions may criminalize peaceful activities and
infringe unduly upon other rights such as freedom of expression and
association;
The death penalty may be applied as a punishment under
most of the articles cited above.
While the word ``terrorism'' is used frequently and its practice is
generally opposed, there is no universally accepted definition of the
word in general use or in treaties and laws designed to combat it.
Frequently, the word indicates the user's attitude to a certain crime.
States and commentators describe as ``terrorist'' acts or political
motivations that they oppose, while rejecting the use of the term when
it relates to activities or causes they support.
In a recent report, the U.N. Special Rapporteur on terrorism noted
that the issue of ``terrorism'' has been ``approached from such
different perspectives and in such different contexts that it has been
impossible for the international community to arrive at a generally
acceptable definition to this very day.'' The Special Rapporteur also
pointed out that ``the term terrorism is emotive and highly loaded
politically. It is habitually accompanied by an implicit negative
judgment and is used selectively.''
There are a number of U.N. conventions prohibiting specific acts,
such as hijacking or bombing, which specify in detail various crimes
which are commonly understood as ``terrorist'' crimes. However, recent
attempts to finalize the U.N. Convention on ``terrorism'' stalled,
inter alia, because of disagreements about the definition.
In the case of China, Amnesty International is concerned that the
anti-terrorist legislation may be used in the context of the
government's ongoing repression of ``ethnic separatist activity,''
particularly in the XUAR. In early March 2002, a deputy to the Ninth
National People's Congress called on the legislature to set up an anti-
terrorism legal framework as soon as possible and stated in this
context: ``To safeguard China's sovereignty and territorial integrity,
we have to fight separatists, international terrorists and religious
extremists.''
The Chinese government's use of the term ``separatism'' refers to a
broad range of activities, many of which amount to no more than
peaceful opposition or dissent, or the peaceful exercise of the right
to freedom of religion. Since the 11 September events , the Chinese
authorities have tried to justify their harsh repression of Muslim
ethnic opponents or independent religious leaders in the XUAR by
claiming they were linked with international ``terrorism.''
While there have been some incidents of bombings in the XUAR over
the past 10 years and a few officially reported assassinations which
are alleged to have been politically motivated, the government has so
far failed to provide convincing evidence that those allegedly involved
in these incidents had links with international terrorist groups.
Furthermore, the number of such incidents is relatively small and the
government's campaign of political repression in the region has gone
far beyond the search for people involved in using this kind of
violence for political ends.
In the continuous political crackdown in the XUAR over the past 10
years, the authorities have detained tens of thousands of people, held
many of them in complete secrecy, preventing all independent
investigation into the cases, while periodically releasing selective
information about a few of those who have been prosecuted. Many of
those prosecuted have been held incommunicado for months on end,
subjected to torture, and sentenced after grossly unfair trials, most
of these either held in secret or in front of large crowds during
``mass sentencing rallies.'' In this context, there are reasons to
doubt the credibility of the government's information about those it
accuses of involvement in ``terrorist'' activity.
Amnesty International considers that the measures taken by states
to protect their population from violent criminal acts must be
implemented within a framework of protection for all human rights, and
should not be used as a pretext to curtail fundamental freedoms and
crack down on peaceful opposition or dissent.
increased repression in the xinjiang uighur autonomous region since 11
september 2001
``Xinjiang is not a place of terror.'' ``By no means is Xinjiang a
place where violence and terrorist accidents take place very often.''
(Statements by Wang Lequan, Secretary of the XUAR Communist Party
Committee, and Abdulahat Abdurixit, Chairman of the XUAR Regional
Government, in Urumqi on 1 September 2001)
These statements, by the two leading officials of the XUAR, were
reportedly made on 1 September 2001, when they met a group of Chinese
and foreign reporters following the opening ceremony of the Urumqi
Fair. Wang Lequan also told the reporters that Xinjiang was stable and
that its stability had never been affected by the activities of
``national separatists and religious extremists.''
Just a few weeks later, however, Chinese officials were painting
quite a different picture. Following the 11 September attacks in the
USA, they placed emphasis on the ``terrorist'' threat posed by
``separatists'' in the XUAR, stating that the latter had close ties
with international terrorist forces, suggesting that ``separatism'' and
``terrorism'' were one and the same thing, and calling for
international support in their fight against domestic terrorism.
The crackdown on suspected government opponents was intensified in
the XUAR soon after 11 September 2001. It further intensified in
December 2001, following a national conference on 'political and legal
work' held in Beijing on 4 December 2001, which made the crackdown on
``ethnic separatist forces, religious extremist forces and violent
terrorist forces,'' as well as the Falun Gong spiritual movement, the
first of four main priorities in ``political and legal work'' for the
year 2002.
The authorities also imposed new restrictions on freedom of
religion, closed down mosques which were deemed to have a ``bad
influence'' on young people, and subjected the Islamic clergy to
intensive scrutiny and ``political education.'' Such ``political
education'' campaigns, which are reminiscent of those held during the
Cultural Revolution, aim both to force participants to follow closely
the party's dictates and to identify potential opponents and
dissenters.
The search for dissenters through the same type of campaign was
extended in early 2002 to other sectors of society in the XUAR,
including cultural and media circles. Official sources made clear that
the ``struggle against separatism'' is wide-ranging and encompasses
repressing all potential dissent and opposition activities, including
the peaceful expression of views via poems, songs, books, pamphlets,
letters, or the Internet.
Reports on various aspects of this crackdown are cited below. Some
of the official reports mention arrests, including the arrest of people
accused of ``terrorist'' activities. However, they give no supporting
evidence of such activities. In fact, hardly any ``terrorist'' acts are
reported to have been perpetrated in the XUAR for the past several
years. According to a Chinese government report published on 21 January
2002, which lists ``terrorist'' incidents in the region over the past
10 years, the most recent explosion allegedly carried out by a
``terrorist'' group took place in April 1998 in Yecheng and the only
other recent incident of violence imputed to ``terrorists'' since 1999
is the murder of one court official in Kashgar prefecture in February
2001.
In December 2001, the XUAR Party leader, Wang Lequan, was also
reported to have said that, ``due to effective preventive measures,''
there had been no ``terrorist activities'' in the region since the war
in Afghanistan started after 11 September. He was referring
specifically to six types of ``terrorist activities,'' including some
which few countries would recognize as terrorist activities, such as
``the staging of riots'' and ``the perpetration of beating, smashing
and looting.'' The latter is an expression used in China during the
Cultural Revolution, which in the current Criminal Law refers to
offenses committed during rioting .
One example of such ``terrorist activities'' is given in the
government's report cited above. Among the incidents it claims to have
been perpetrated by ``terrorist organizations'' is extensive ethnic
unrest in the city of Gulja (Yining) in February 1997. The unrest
started with a peaceful demonstration by Uighurs, which was brutally
suppressed by the security forces and followed by sporadic rioting and
violence over 2 days. The government's report gives a simplistic and
distorted picture of the unrest--which it calls an ``incident.'' It
omits for example to mention the extreme brutality used by the security
forces against both protesters and residents, and describes the
protesters as ``terrorists.''
This confirms Amnesty International's concerns, expressed earlier
about legislation, concerning the very loose and broad definition given
to ``terrorism'' by the authorities in China.
estimates of arrests in the xuar since september 2001
Due to the strict control exercised by the authorities over all
politically ``sensitive'' information and the lack of access to the
XUAR for independent human rights monitors, it is difficult to estimate
with accuracy the number of people detained, arrested or sentenced at
any one time in the region. However, on the basis of the reports it has
monitored, Amnesty International believes that the number of people
detained for investigation on political grounds over the past 6 months
is likely to be in the thousands, with at least scores charged or
sentenced under the Criminal Law--most of them Uighurs. There is as yet
very little information on people who may have received administrative
sentences involving detention in ``re-education through labour'' camps.
The reports available from official sources give an incomplete
picture of the extent of repression. They refer only to a few cities
and areas of the XUAR. In addition, official reports of arrests usually
refer to people under formal ``arrest'' (charged) and rarely account
for the much larger number of people detained for interrogation, who
may be held for long periods without charge. Neither do they usually
account for those who receive ``sentences'' of ``re-education through
labour,'' an administrative punishment imposed without charge or trial
which involves up to 3 years' detention in a labour camp. Official
media reports also give a patchy picture of political trials and
sentences. The official media hardly ever reports on trials in the XUAR
and publishes only selected reports of the ``public sentencing rallies
or meetings'' which are held to announce verdicts and sentences.
Uighur exile sources estimate that at least 3000 people were
detained in the political crackdown in the XUAR from mid-September 2001
until the end of 2001. They have also reported that during the same
period at least 20 people tried on politically driven charges were
sentenced to death and executed, and many more sentenced to prison
terms.
conclusion
Lack of genuine ``rule of law'' plays a major role in the human
rights abuses occurring in China. The vague and contradictory
provisions of the law lead consistently to its arbitrary use and
provide wide scope for abuse of power, affecting a very large number of
people in the country. In addition, the law is manipulated by the
authorities as a tool to imprison political opponents, to silence
government critics, to harass and intimidate independent religious
groups, and to suppress fundamental freedoms among ethnic minorities.
Even though the Chinese authorities have taken some steps to reform the
law, this has had no significant impact for the overall protection of
human rights in the country.
Serious human rights violations are currently being perpetrated
against a broad range of groups, including religious and spiritual
groups, in particular members of the Falun Gong spiritual movement.
Extensive abuses are also occurring in the context of the Chinese
government's current campaign against ``separatist, terrorist and
religious extremist forces'' in the Xinjiang Uighur Autonomous Region.
These include violations of a broad range of civil, political, social
and cultural rights. Amnesty International is particularly concerned at
reports indicating that thousands of people may have been arbitrarily
detained during this crackdown in the region and some sentenced to
death and executed after summary trials. It is also concerned that
serious abuses, such as prolonged incommunicado detention, torture,
denial of access to lawyer and other rights associated with fair trial,
are likely to have increased in the crackdown.
recommendations
Exclude all evidence extracted through torture from all proceedings,
Criminal or Administrative
Revise the Criminal Procedure Law and other relevant
laws and regulations to introduce clear and unambiguous exclusion of
all evidence obtained through torture.
Institute for all suspects all necessary guarantees of
the presumption of innocence, including the right to avoid self-
incrimination and the right to silence.
End Arbitrary or incommunicado detention
Abolish all forms of Administrative detention which are
imposed without charge, trial or judicial review. Introduce procedures
to ensure that all detainees are brought before a judicial authority
promptly after being taken into custody and regularly thereafter.
Ensure that this judicial authority can effectively
continue to supervise the legality of the detention and conditions of
detentions.
Effectively outlaw the misuse of ``supervised
residence'' for detention outside recognized places of custody.
Enable detainees, their relatives and legal
representatives to challenge the legality of all aspects of detention,
not just on the basis that it has exceeded legal time limits.
Enhance and protect public scrutiny and accountability
of official organs holding the power to detain citizens.
Ensure detainees effective rights of access to lawyers and family
Guarantee all detainees, as a matter of right and from
the outset of any form of detention by the state, and regularly
thereafter, access to legal representatives, relatives and doctors of
detainees' choice.
Access should include the right for the detainee to have
a lawyer present during interrogation.
End current exclusions to access in cases such as
``state secrets cases'' and ``where it would hinder investigations.''
End arbitrary limits in practice to the number and
duration of meetings between detainees and their lawyers.
Anti-terrorism provisions
Review the provisions on terrorist crimes in the Criminal
Law with a view to
Removing the death penalty from the punishments they
provide.
Ensuring that these provisions do not criminalize
activities which amount to no more than the peaceful exercise of
fundamental human rights.
Ensuring in addition that the offenses listed in these
provisions are clearly defined in unambiguous language.
Ensure that any future legislation related to ``counter-
terrorism measures'' conforms to international human rights standards.
End torture
Revise the Criminal Law, Criminal Procedure Law and
review prosecution policy to ensure that all acts which constitute
torture as defined in Article 1 of the Convention against torture are
fully and effectively outlawed. Prosecution should not be limited to
cases resulting in death or serious physical injury. Attempts to commit
torture, and acts constituting complicity or participation in torture
committed by anyone acting in an official capacity should also be
punished.
Demand the release of Rebiya Kadeer, who was arrested for trying to
meet with Congressional Research Service (CRS) staff and Congressional
staff.
Thank you for inviting Amnesty International for this important
hearing.
______
Prepared Statement of Hon. Max Baucus, U.S. Senator From Montana,
Chairman, Congressional-Executive Commission on China
april 11, 2002
I would like to welcome all of you to the second hearing of the
Congressional-Executive Commission on China. Today, we will continue to
pursue the relationship between rule of law and protection of human
rights in China. At our next hearing in June, we will look at
commercial rule of law and the WTO.
In the Commission's work, I start from one fundamental assumption--
that a modern, industrialized Nation must have a legal system that is
clear, fair, consistent, impartial and independent. There can be no
room for arbitrary decisions. The police and the courts must be held
accountable for their actions. The law must determine when rights are
granted, and when rights may be taken away, not the arbitrary whims of
administrative officials. This is necessary in commercial law for
routine business to proceed, and it is no less necessary in civil and
criminal law.
China is a conundrum. Thirty years ago, Mao Zedong was supreme
leader of a totalitarian Marxist-Leninist system. Today, after two
decades of reform, the portrait of Mao that hangs from Tiananmen Gate
overlooks a vastly different China. On the streets of Beijing, Shanghai
and other cities, one would be hard pressed to find any real evidence
of Marx or Lenin.
Power in China has become much more diffuse. It is wielded by an
ever-increasing number of officials and bureaucrats within the
Communist Party and the central government, as well as officials at the
provincial and city level. A significant part of the economy is now
based on market principles. State-owned enterprises are disappearing
rapidly. Some journalists challenge government-imposed restrictions on
press freedom. The practice of religion is spreading rapidly. Legal
clinics teach ordinary citizens about some of their rights, albeit
within strict boundaries.
Nevertheless, despite these changes, Xiao Qiang, head of the NGO
Human Rights in China, reminded us at an earlier hearing that the
Chinese government has become a system of rule by law rather than rule
of law. And that two-letter preposition, rule by law versus rule of
law, makes all the difference. Under rule by law, authorities
manipulate the law to achieve their own ends. Laws are often used as a
means of subjugation or repression. With rule of law, the law itself is
the final word. Human rights can only be protected within a system of
laws. Anything else is simply arbitrary.
The Commission is beginning to work on its first annual report
which is due in October. The report will include recommendations about
how we can help China respect rule of law--a necessary step in China's
march to join the community of nations. These hearings, along with the
detailed roundtables being held by the staff, will provide significant
input into that report.
Let me list several questions that I hope we can address today. We
have a distinguished panel of witnesses to help us do that.
--How does the criminal justice process work in China? How can we
help improve it?
--What is the current status of lawyers in China? To what degree
can they challenge police and prosecutors and defend clients without
fear of punishment or retribution? How can we help improve the
situation for lawyers in China?
--Is China a more rules-based system than in the past? What are the
recent trends?
--Can one differentiate between a rules-based commercial law system
and a rules-based civil and criminal law system?
______
Prepared Statement of Hon. Doug Bereuter, U.S. Representative From
Nebraska, Co-Chairman, Congressional-Executive Commission on China
april 11, 2002
This second formal hearing continues the Commission's exploration
of the relationship between the current Chinese legal system and
China's evident difficulty in meeting internationally recognized human
rights norms. One practical example of this relationship is the limited
ability of Chinese individuals to have access to the judicial system to
vindicate the basic rights granted to them by China's own constitution.
The good news is that the Chinese legal regime has some legal
mechanisms through which Chinese citizens can challenge and check the
arbitrary exercise of power by government officials. The bad news is
there aren't enough such mechanisms: for example, no practical recourse
exists through the courts for a prisoner or his family to challenge a
detention that exceeds existing time limits. Unfortunately, there are
other examples as well.
I agree with the Senator that our starting premise should be that
China must develop a modern legal system if it wishes to achieve its
ambitions to become a developed country and to assume an equal place
among nations in the international system. China's aspirations as a
nation--to economic, social, and cultural development at home and to
regional and international influence abroad--seem to me to be much more
difficult to achieve without a legal system with modern
characteristics. I think there is basic agreement about what such
characteristics are: openness, transparency, notice and opportunity to
be heard, choice of legal counsel, public proceedings, and an
independent professional judiciary, to name a few.
Again, there is some reason for optimism: legal reform has been on
the Chinese government's agenda for a number of years, and many of the
new laws that have been enacted are improvements over those they
replaced. But much remains to be done, and I believe it is because of
that need that the United States can help make a difference as China
modernizes its legal infrastructure.
Thus, we again explore the thematic subject matter of the first
hearing, looking at human rights in the context of legal reform in
China.
Our witnesses today bring strong personal and institutional
backgrounds in human rights, political prisoners in China, and in rule
of law programs in China. John Kamm's work on political prisoners
reminds all of us that a person with energy, personal commitment, and
knowledge about the language and culture of another country can truly
make a difference. The Lawyers Committee for Human Rights and Amnesty
International represent the type of nongovernmental organizations that
have been at the forefront of human rights advocacy, while stressing
the importance of the rule of law. And the China Law Center at Yale
University represents the academic world, in which scholars and program
directors at a number of U.S. universities and institutes have reached
out since the late 1970's to build cooperative programs with Chinese
counterparts. A significant portion of the legal reform we are seeing
in China today can be traced to roots in these programs.
I look forward to hearing from these distinguished witnesses, and
to a spirited and insightful question and answer session after their
formal statements.
______
Prepared Statement of Hon. Marcy Kaptur, U.S. Representative From Ohio
april 11, 2002
Thank you, Senator Baucus and Congressman Bereuter, and thank you
to each of our witnesses. We appreciate your dedication to this issue
and your participation today.
Our Commission was charged with two main responsibilities: to study
the human rights situation in China and the rule of law procedures as
well. As we focus on rule of law today, our spotlight should be broad.
We must consider the legal system from the ground up, including: legal
education training, legislative development, law enforcement training,
access to legal assistance, and a fair and open judiciary. This will be
crucial to the development of a working rule of law.
Chinese citizens must know that the law is in place to punish
violators, but also to protect citizens from abuse. The law should not
be something that the Chinese should fear. Instead, it must be a
vehicle for labor, environmental, and human rights enforcement. I hope
that someday soon the citizens of China will be able to trust the
lawmakers, enforcement officials, and the judicial appointees as
guardians of the people.
By now, the Chinese people know the difference between ``rule of
law'' and ``rule by law.'' Today, all too often, law is used as a
weapon. Alleged ``enemies of the state'' are imprisoned for violating
internationally recognized rights, such as freedom of speech and the
freedom to organize.
The increase in the number of people studying law in China is
encouraging. My only concern is limits and registration requirements
placed on practicing attorneys and law school professors. Access and
government support should not vary by region--every citizen must have
equal protection under the law.
In order for China to interact with other nations, whether through
trade or diplomatic means, a functioning and just system for the rule
of law is necessary, both in their domestic and international
relations. Businesses and foreign governments must be able to rely on a
sound legal framework protecting worker, investor, and employer rights.
Recent media reports show that even large, multinational corporations
like, FedEx, UPS, and DHL have to initiate negotiations to gain even
the slightest portion of the marketplace. An active member of the
global economy must be ready to ``play by the rules.'' This will offer
China many challenges.
I look forward to a future for China that will allow freedom to
flourish and will adopt a system of laws that will bring liberty to
every citizen.
Submissions for the Record
----------
Prepared Statement of Michael Posner, the Lawyers Committee for Human
Rights
april 11, 2002
The Lawyers Committee is an independent non-governmental human
rights organization. We aim to hold governments accountable to the
international standards of human rights, and work to develop stronger
models of corporate accountability in the global market place.
Human rights conditions in China continue to be an issue of deep
concern. We appreciate the opportunity to bring some of the most
alarming issues to the attention of your Commission.
Over the past year, China has secured a prominent position in the
international arena, symbolized by its admission to the WTO, its
successful bid to host the 2008 Olympics and the recent visit of
President Bush. However, China's new stature has not been accompanied
by a parallel improvement in its domestic human rights conditions.
Instead, official statements about upholding ``the rule of law'' have
frequently veiled harsh political repression. This is most poignantly
illustrated by the ``Strike Hard'' campaign against crime, which
resulted in scores of executions after procedural and substantive
abuses of criminal law. Moreover, in the aftermath of the September
11th attacks in the United States, the Chinese government has misused
anti-terrorist rhetoric to legitimize harsh crack-downs in Tibet and
Xinjiang province, as well as illegitimate censorship of all forms of
media, including the Internet.
An abundance of NGO-reports, as well as the annual evaluations of
China's human rights practices by the State Department's Bureau of
Democracy, Human Rights and Labor, narrate these and other violations
of the most fundamental human rights. They describe crackdowns on
dissidents, arbitrary arrests and detentions of suspects, torture,
forced prison labor, and abusive labor conditions. Freedom of religion
continues to be seriously curtailed,\1\ freedom of expression continues
to be curtailed,\2\ and voices that endeavor to draw attention to
pressing issues of national and global concern are frequently silenced
with violence.\3\
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\1\ For instance, the New York Times reported on March 26, 2002
that Roman Catholic Bishop Julius Jia Zhiguo (67) was arrested in Hebei
Province, central China. His whereabouts are unknown. The Bishop
previously spent approximately 20 years in jail or labor camps for his
loyalty to the Vatican and was often kept under house arrest. Another
obvious example relates to the continued suppression of the Falun Gong
sect. Since the sect was banned in 1999, tens of thousands of
practitioners have been arrested, imprisoned without trial, and forced
to undergo ``re-education through labor.'' Falun Gong claims that more
than 1,600 followers have died in police custody or detention centers.
The crack down continues, most recently with arrests and deportation of
foreign followers. See, e.g., BBC world service, March 7, 10 and 15, at
http://news.bbc.co.uk/hi/english/world/asia-pacific/default.stm.
\2\ For example, the Ministry of Propaganda prohibiting recently
prohibited the Guangzhou based liberal newspaper Southern Weekend to
publish a lengthy report on corruption at one of China's biggest
charities, Project Hope. The charity is sponsored by a branch of the
Communist Youth League, which rejected the accusations of corruption as
``a terrorist attack on the China Youth Development Foundation by
vicious criminals.'' NYT, March 23, 2002, available at http://
www.nytimes.com/.
\3\ For example, the NGO Human Rights in China reports the recent
arrest and detention, on January 24, 2002, of Wang Daqi, Professor of
Construction of Hefei Industrial University and editor of Ecology
magazine. Since the 1989 Beijing crackdown, Professor Wang had
published articles about social and human rights issues. The Chinese
authorities previously attempted to prevent Prof. Wang from publishing
these articles. At http://iso.hrichina.org:8151/iso/news--
item.adp?news--id=691.
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The Lawyers Committee has welcomed positive developments in the
Chinese legal system over the past few decades. Provisions in newly
enacted legislation often allude to improved protection of fundamental
social and human rights norms. However, ongoing violations illustrate
that a strong legislative framework cannot by itself secure the rule of
law. China needs to build a strong, independent legal profession to
support the legal system, and to enable its citizens to enforce their
legal rights. Without actual opportunities and mechanisms for
enforcement, the rule of law remains a paper tiger.
In this submission, the Lawyers Committee will focus on two
persistent problems that it considers to be key to the failing rule of
law in China. The first relates to China's failure to respect the
people's freedom to organize and voice injustices. This problem is
dramatically highlighted by China's repressive response to the recent
massive workers demonstrations in northeast China. The second is the
ongoing persecution of legal practitioners in China.
the right to organize and freedom of expression
Workers demonstrations in the northeastern provinces
Over the past few years, spurred by China's accession to the WTO,
the Chinese market has opened to foreign investment. Increased
competition forced China's state-owned enterprises to slim down and
unemployment figures are staggering. Millions of workers have lost
their jobs.\4\ As China lacks a social safety net, many of these people
face desperate poverty.\5\
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\4\ The World Bank reports that in many northeastern cities,
unemployment is as high as 40 percent. China's Economy Minister Li
Rongrong said in Beijing on last March 8, that 25 million workers have
lost their jobs since 1998. See Far Eastern Economic Review, April 4,
2002, at http://www.feer.com/articles/2002/0204--04/p032china.html
\5\ A March 19, 2002 New York Times article tells about a man in
Liaoyang who was dismissed from a chemical plant last year with a
payment of just $970 after 20 years of service. His wife was also
placed on unpaid ``long-term vacation'' by her factory. Their 18-year-
old son has been unable to find a job since he graduated from junior
high school 2 years ago. The family is unable to live of the meager
monthly welfare check of a $27.
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Since the beginning of March, these conditions drove tens of
thousands of laid-off workers to the streets, most notably in the
cities of Daqing in Heilongjiang province, and Liaoyang and Fushun in
Liaoning province. The protesting workers are asking for payment of
overdue wages and pensions and are protesting against financial
mismanagement.\6\
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\6\ Factories are often responsible for providing pensions for
their retired workers and unemployment benefits to workers that were
made redundant.
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The Chinese authorities tried to suppress the demonstrations with a
paltry carrot, promising meager payments of the wages due, and a
crushing stick. Four of the workers' leaders were arrested in
Liaoyang\7\ and the police conveyed the message that those arrested
would be ``harshly'' handled if the protests were to continue. There
are alarming indications that one of these detainees was seriously
mistreated.\8\ While the demonstrations are widely covered in the
international press, the local and national media were prohibited from
reporting the events. Heavily armed forces were reportedly sent into
Daquin to intimidate the demonstrators.\9\
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\7\ The names of the arrested leaders are Xiao Yunliang, Pang
Qingxiang, Wang Zhaoming and Yao Fuxin.
\8\ Yao Fuxin reportedly contacted his wife from prison to convey
the message that the arrestees would be treated harshly if the
demonstrations were to continue. This message effectively discouraged
the protesters in Liaoyang. According to most recent reports, the
police informed his relatives that Mr. Yao was hospitalized for high
blood pressure and a heart condition. His family has not seen or heard
from him since, and recount that Mr. Yao has no known history of such
ailments, and was in good health at the time of his arrest. See New
York Times, 19, 26 and 30 March , 2002, available at www.nyt.com.
\9\ Far Eastern Economic Review, Ibid, footnote 3.
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Chinese officials apparently claimed that the protests are being
pushed by ``foreign black hands.'' The Liaoyang's state-run television
station accused the protest leaders of colluding with hostile foreign
forces. Local authorities were reportedly ordered to prevent the
protesting workers from liaising with foreign labor groups and
demonstrators in other provinces.\10\
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\10\ South China Morning Post, 30 March 2002, at http://
iso.hrichina.org:8151/iso/news--item.adp?news--id=728. This report
includes a quote by political analyst Li Fan, who noted that Chinese
leadership has not ruled out ``high-handed measures to stem potential
cross-provincial workers' movements.''
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The Lawyers Committee recognizes the challenges posed by the
mounting unemployment in China.\11\ However, these challenges cannot
justify China's failure to respect its citizens' legitimate efforts to
enforce their legal rights. These recent developments demonstrate that
the Chinese people continue to lack a space to organize and voice
injustices.
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\11\ The Lawyers Committee commends the Memorandum of Understanding
(MOU) of 17 May 2001, between the ILO's International Labour Office and
China's Ministry of Labour and Social Security, which provides, inter
alia, for a cooperative effort to address issues of unemployment and
the promotion of fundamental workers rights. The MOU is available at
http://www.ilo.org/public/english/chinaforum/download/chinamou.pdf. See
also infra note 24.
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China's new Trade Union Law
In October, 2001, the National People's Congress adopted some
significant revisions to its 1992 Trade Union Law (TUL).\12\ Chinese
officials have presented the amendments as a move toward compliance
with the ILO Conventions and international standards pertaining to the
rights to organize and bargain collectively. The new TUL stipulates
that workers have the rights to organize and join trade unions
``according to law,'' and to democratically elect their
representatives.\13\ The law is also applicable to foreign and private
companies.
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\12\ Trade Union Law of the People's Republic of China, promulgated
on April 3, 1992, as amended on 17 October 2001. A critical discussion
of the law is by the China Labour Bulletin, at http://iso.china-
labour.org.hk/iso/article.adp?article--id=1976&category--name=Labour
percent20Laws
\13\ Article 3 and 9 of the TUL, supra note 12.
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However, the All-China Federation of Trade Unions (ACFTU) continues
to be the only legal workers' organization in China. The ACFTU is
controlled by the Communist Party, and headed by a party official. The
TUL does not recognize the right to organize autonomous trade unions.
Moreover, it fails to recognize the right to strike.\14\
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\14\ The TUL confirms the stance that China took in February of
last year, when it ratified the International Covenant on Economic,
Social, and Cultural Rights with the reservation that it would apply
the provision for freedom of association ``in accordance with the
country's actual conditions.'' This factually meant a continuation of
the legal prohibition on independent unions. It be noted in this
respect that as a party to the ILO's Declaration on Fundamental
Principles and Rights at Work (1998), China should be deemed to have
agreed to respect and ensure workers' right to freedom of association
and the effective right of collective bargaining. Moreover, in October
1998, China signed the International Covenant on Civil and Political
Rights, which in article 8 guarantees the right to freedom of
association and freedom to form trade unions. Although China has yet to
ratify this convention, its signature can be taken as to signify its
intention to be bound by its provision.
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The Lawyers Committee is deeply concerned about China's continued
rejection of independent union activity. Freedom of expression, and
freedom to organize and associate are fundamental human rights and
their protection is essential to ensure the rule of law.
persecution of lawyers
In this submission, the Lawyers Committee also wishes to highlight
its concern about the continuing persecution, threats and harassment
directed against lawyers who try to confront common injustices. In 1998
the Lawyers Committee addressed this and related issues in a report on
Lawyers in China: Obstacles to Independence and the Defense of
Rights.\15\ Unfortunately, many of the problems described in that
report continue to be matters of concern.
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\15\ Lawyers in China: Obstacles to Independence and the Defense of
Rights, Lawyers Committee for Human Rights, New York, 1998. Copies of
this report are available upon request.
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The report includes an analysis of the 1996 Lawyers Law, which, in
general terms, regulates the legal profession.\16\ The Lawyers Law was
inspired by, yet does not wholly encompass, the U.N. Basic Principles
on the Role of Lawyers (1990).\17\ Nevertheless, the Law and the Basic
Principles share the intention to protect lawyers from physical or
other forms of abuse, and from interference when carrying out their
responsibilities in accordance with the law.\18\ However, despite this
strong legal framework, there are recurring reports of intimidation and
threats targeted at legal practitioners. The case of Zhou Litai
illustrates this problem.
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\16\ Lawyers Law of the People's Republic of China, adopted May 15,
1996, effective January 1, 1997. The Lawyers Law is available online at
http://www.qis.net/chinalaw/prclaw10.htm
\17\ Adopted by the Eighth United Nations Congress on the
Prevention of Crime and Treatment of Offenders, held in Havana, Cuba,
August-September 1990. The Basic Principles enshrine the rights and
responsibilities of lawyers around the world, and also lay out states'
obligations to ensure effective and equal access to lawyers for their
residents.
\18\ Article 3 of the Lawyers Law, supra note 14, declares that
lawful legal practice shall be protected by the law. Article 32
provides that the personal rights of a lawyer will be inviolable in the
course of his or her legal practice. The Basic Principles, supra note
15, are more detailed, yet provide essentially similar protection in
artt. 16-22.
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zhou litai
Since 1996, Zhou Litai has defended the rights of workers in the
Shenzhen area. In a series of high-profile cases brought against local
government authorities, foreign investors and company owners, he
represented more than 800 factory workers in labor disputes and
struggles for compensation for grave work injuries. Many of his cases
involved legal action against the Labor Bureau or the social security
department. In August last year, he represented 56 women workers in a
South Korean-owned wig factory in Shenzhen, who had been subjected to
illegal body searches. Mr. Zhou achieved a successful out-of-court
settlement of this case.
On December 19, 2001 the Longgang District Bureau of Justice in
Shenzhen ordered Mr. Zhou to close his legal practice.\19\ The order
came unexpectedly and seems to contravene both international law and
domestic regulations.\20\ It appears that the authorities wrongfully
issued the order to end the negative attention that Mr. Zhou's
successful litigation practice has drawn to the Shenzhen region. As
noted above, both international human rights standards and the Chinese
Lawyers Law expressly protect lawyers from ungrounded interference and
intimidation.\21\ Mr. Zhou Litai has filed suit against the District
Bureau of Justice with the Longgang District People's Court, to contest
the legitimacy of the order.\22\
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\19\ This matter was also covered in a New York Times article on
January 3, 2002, which can be found online at http://
college4.nytimes.com/guests/articles/2002/01/03/894481.xml.
\20\ The Lawyers Law, supra note 14, states in Article 12 that
``legal practice shall not be subject to geographical limitation.''
This means that a lawyer licensed in one region of China may practice
in another without obstruction from the local authorities. Mr. Zhou is
in the possession of a Chongqing license and is thus entitled to
practice anywhere in China.
\21\ See supra note 16.
\22\ The Shenzhen local bureau of justice has previously attempted
to confiscate Mr. Zhou's license, shortly after he started his practice
in 1997. At that time, the bureau returned the license to Mr. Zhou
after he initiated legal proceedings. China Information Center on
January 16, 2002: http://www.china.org.cn/english/2002/Jan/25353.htm
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Unfortunately, Mr. Zhou's case is not exceptional. It exemplifies
the intimidation that many legal practitioners who call for social
reform commonly face.\23\ The Lawyers Committee considers this to be an
issue of grave concern. Mr. Zhou's account and achievements illustrate
a commendable development in which Chinese people are increasingly
turning to the legal system for protection. This is valuable progress
that needs to be fostered, not suppressed.
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\23\ This is confirmed, for instance, in the research paper Empty
promises: human rights protections and China's criminal procedure law
in practice by the NGO Human Rights in China, which states: ``Mounting
official hostility toward lawyers have also greatly increased the risk
of representing criminal defendants. Lawyers who undertake such work
are often harassed and intimidated, and sometimes detained or even
convicted of crimes, merely for actively defending the interests of
their clients. Lawyers have consequently been reluctant to work in
criminal defense, which has led to a disturbing decline in the number
of criminal cases where defendants are represented by counsel.'' The
paper is available online at http://iso.hrichina.org:8151/download--
repository/A/cpl percent2001.doc. The graveness of such intimidation is
illustrated, for instance, by the case of Xu Jian, a labor lawyer who
was sentenced to 4 years imprisonment on July 18, 1999. The charges,
``incitement to overthrow State power,'' are based on his activities as
a labor rights lawyer, including efforts to educate workers about their
legal rights.
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As China works toward the rule of law, it is critical that it
continues to develop and strengthen its legal system. However, it
should be recognized that this system is only as strong as the
professionals who work to uphold it. In this understanding, it is
essential that China builds and protects a force of independent legal
practitioners who can vigorously use the legal system to confront
injustices.
recommendations
Most notably with its accession to the WTO, China has successfully
secured a profitable place in the economic world order. However, it
continues to refute the most fundamental human rights principles on
which this global economic order should be build. This submission
highlights only a few of China's failings in this respect.
Your Commission was established with the responsibility of placing
an ongoing and focused spotlight on China's human rights practices. In
this respect, the Lawyers Committee urges the Commission to maintain a
strong and critical stance.
In addition, the Lawyers Committee proposes the following
recommendations to aid your efforts to promote the rule of law in
China.
1. Your Commission can and should use its authority to ensure that
human rights issues maintain at the forefront on the U.S. trade agenda,
and play an central role in the design of the bilateral Sino-US trade-
relations.
2. It is important that the Chinese government continues to be
pressured to respect fundamental human rights, in particular the right
to organize and to freedom of expression. Curtailments of these rights,
in particular China's suppression to the workers demonstrations in its
northeastern provinces, should be strongly condemned.
3. The U.S. should contribute and support with all appropriate
means the objectives outlined in the Memorandum of Understanding,
between the ILO's International Labour Office and China's Ministry of
Labour and Social Security of the People's Republic of China.\24\
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\24\ See supra note 11. These objectives provide for measures and
assistance for (1) the promotion of international labor standards and
the Declaration on Fundamental Principles and Rights at Work, (2)
issues of unemployment and the reform of China's labor market, (3) the
development of a system for social securities, and (4) the promotion of
social dialog, including social bargaining.
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4. The Lawyers Committee believes that it is important to recognize
the educative, guiding role that can be played by foreign governments,
human rights groups, law schools, bar associations and other
international actors in the development of law in China. Underlining
the position of China as a prominent member of the international
community, efforts should be made to ensure the continued involvement
of these foreign actors.
5. In the absence of a legal right to create independent trade
unions, the U.S. Government should encourage, engage and assist
multinational companies to develop mechanisms, at a factory or company
level, that grant workers the space and opportunity to organize and
bargain collectively.
6. It is important that the Chinese government continues to be
pressured and assisted, with all suitable means, to fully comply with
the provisions of the U.N. Basic Principles on the Role of Lawyers, and
to revise those aspects of Chinese law that restrict the ability of
lawyers to freely represent their clients and to organize independent
bar associations.
7. In this line, the Chinese government should ensure that legal
provisions of the Lawyers Law are properly enforced, to ensure that
lawyers can freely carry out their professional duties without official
interference, restrictions, threats or intimidation. Bar associations
and the Chinese Ministry of Justice should be engaged to create
mechanisms to ensure the adequate protection of legal practitioners.
8. Particular assistance should be provided to the training of
lawyers, both in China and abroad. Training programs should be designed
to fit with China's particular conditions and needs. The exchange and
sharing of relevant information should be stimulated. Assistance should
also be provided to China's law schools for the design of courses and
teaching methods.
9. At the same time, to promote high professional standards, these
institutions should be encouraged to publicize and facilitate the
rights of clients to bring malpractice suits, in the belief that this
will encourage lawyers to seriously consider their professional
responsibilities.
10. Assistance should be provided in the creation of a legal aid
system, by providing know-how and financial support where appropriate.
11. Assistance should be provided to provide training to sensitize
the relevant branches of government to the importance of the
independent role of the lawyer within the legal system.
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