<DOC>
[109th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:23753.wais]
CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
ANNUAL REPORT
2005
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ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
OCTOBER 11, 2005
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Printed for the use of the Congressional-Executive Commission on China
Available via the World Wide Web: http://www.cecc.gov
______
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CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
LEGISLATIVE BRANCH COMMISSIONERS
Senate
House
CHUCK HAGEL, Nebraska, Chairman JAMES A. LEACH, Iowa, Co-Chairman
SAM BROWNBACK, Kansas DAVID DREIER, California
GORDON SMITH, Oregon FRANK WOLF, Virginia
JIM DeMINT, South Carolina JOSEPH R. PITTS, Pennsylvania
MEL MARTINEZ, Florida ROBERT B. ADERHOLT, Alabama
MAX BAUCUS, Montana SANDER LEVIN, Michigan
CARL LEVIN, Michigan MARCY KAPTUR, Ohio
DIANNE FEINSTEIN, California SHERROD BROWN, Ohio
BYRON DORGAN, North Dakota MICHAEL M. HONDA, California
EXECUTIVE BRANCH COMMISSIONERS
STEVEN J. LAW, Department of Labor
PAULA DOBRIANSKY, Department of State
David Dorman, Staff Director (Chairman)
John Foarde, Staff Director (Co-Chairman)
(ii)
C O N T E N T S
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Page
I. Executive Summary and List of Recommendations................. 1
II. Introduction: Growing Social Unrest and the Chinese
Leadership's Counterproductive Response........................ 10
III. Monitoring Compliance With Human Rights..................... 13
(a) Special Focus for 2005: China's Minorities and Government
Implementation of the Regional Ethnic Autonomy Law......... 13
(b) Rights of Criminal Suspects and Defendants............... 23
(c) Protection of Internationally Recognized Labor Rights.... 36
(d) Freedom of Religion...................................... 43
(e) Freedom of Expression.................................... 55
(f) Status of Women.......................................... 67
(g) The Environment.......................................... 70
(h) Public Health............................................ 72
(i) Population Planning...................................... 75
(j) Freedom of Residence and Travel.......................... 78
IV. Political Prisoner Database.................................. 80
V. Development of Rule of Law and the Institutions of Democratic
Governance..................................................... 81
(a) The Development of Civil Society......................... 81
(b) Legal Restraints on State Power.......................... 83
(c) China's Judicial System.................................. 87
(d) Democratic Governance and Legislative Reform............. 89
(e) Access to Justice........................................ 95
(f) Commercial Rule of Law and the Impact of the WTO......... 98
VI. Tibet........................................................ 105
VII. North Korean Refugees in China.............................. 113
VIII. Developments in Hong Kong During 2005...................... 115
IX. Appendix: Commission Activities in 2004 and 2005............. 117
X. Endnotes...................................................... 120
CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA
2005 ANNUAL REPORT
I. Executive Summary and List of Recommendations
The Commission finds no improvement overall in human rights
conditions in China over the past year, and increased
government restrictions on Chinese citizens who worship in
state-controlled venues or write for state-controlled
publications. Citizens who challenge state controls on
religion, speech, or assembly continue to face severe
government repression. The Commission notes that the Chinese
government continued to pursue certain judicial and criminal
justice reforms that could result in improved protection of the
rights of China's citizens. Yet these positive steps were
clouded by new detentions and government policies designed to
protect the Communist Party's rule and tighten control over
society. These detentions and policies violated not only
China's Constitution and laws, but also internationally
recognized human rights standards.
The Chinese government engaged the international human
rights community over the past year, hosting visits by the UN
Working Group on Arbitrary Detention, the UN High Commissioner
for Human Rights, and the U.S. Commission on International
Religious Freedom, permitting the International Committee of
the Red Cross to open a regional office in Beijing, and
committing to a visit by the UN Special Rapporteur on Torture
in November 2005. During her recent visit to China, the UN High
Commissioner for Human Rights Louise Arbour said, ``China has
declared its commitment to human rights and has raised
expectations for the country to match its growing prosperity
with a firm commitment to advancing human rights.'' Arbour also
expressed concern over China's commitment to human rights and
raised several political prisoners of concern with government
officials.
China has an authoritarian political system controlled by
the Communist Party. Party organizations formulate all major
state policies before the government implements them. The Party
dominates Chinese legislative bodies such as the National
People's Congress and fills important government positions at
all levels by an internal selection process. Chinese
authorities have introduced limited elements of political
participation at the lowest levels of government to enhance
their ability to govern. These elements include direct
elections for village and residents committees, local people's
congress elections, and some popular input into the selection
of low-level government and Party officials. The Party controls
these selection and electoral processes by screening, and often
selecting, the candidates. Chinese citizens are attempting to
use the limited political space created by official reforms to
protect their rights and interests, but Party officials and
local governments often suppress these efforts, leading to
social unrest.
After several wrongful conviction scandals this year, the
central government permitted a broad public critique of the
criminal judicial system. This discourse confirmed the extent
to which coerced confessions, police incompetence, pervasive
presumptions of guilt, extrajudicial influences on the courts,
restrictions on defense attorneys, and other problems undermine
the fairness of the criminal process. Domestic reaction to the
wrongful conviction scandals created new momentum for some
criminal justice reforms. Many Chinese scholars and officials
continue to push for reforms within the boundaries set by the
Communist Party and Chinese legal culture and seek to engage
foreign counterparts in this process. The Chinese government
continues to use administrative procedures and vaguely worded
criminal laws to detain Chinese citizens arbitrarily for
exercising their rights to freedom of religion, speech, and
assembly. The United Nations Working Group on Arbitrary
Detention noted in December 2004 that the Chinese government
has not adequately reformed these practices.
The Chinese government does not recognize the core labor
rights of freedom of association and collective bargaining. The
government prohibits independent labor unions and punishes
workers who attempt to establish them. Wage and pension arrears
are among the most important problems that Chinese workers
face. The government issued new regulations seeking to address
the problem of unpaid wages and pensions, but in many cases Chinese
workers continue to struggle to collect wages and benefits because
the relevant agencies do not enforce the regulations. Workplace
health and safety conditions are poor for millions of Chinese
workers. China's state-run news media have reported, with some
exceptions, workplace accidents more openly and promptly than
in previous years, even when workers have been killed or
injured. Forced labor is an integral part of the Chinese
administrative detention system, and child labor remains a
significant problem in China, despite being prohibited by law.
The Chinese government continues to harass, abuse, and
detain religious believers who seek to practice their faith
outside state-controlled religious venues. Religious believers
who worship within state-controlled channels are subject to
government regulation of all aspects of their faith. In 2005,
the government and Party launched a large-scale implementation
campaign for the new Regulation on Religious Affairs to
strengthen control over religious practice, particularly in
ethnic and rural areas, violating the guarantee of freedom of
religious belief found in the new Regulation.
The religious environment for Tibetan Buddhism has not
improved in the past year. The Party demands that Tibetan
Buddhists promote patriotism toward China and repudiate the
Dalai Lama, the religion's spiritual leader. The intensity of
religious repression against Tibetans varies across regions,
with officials in Sichuan province and the Tibet Autonomous
Region currently implementing Party policy in a more aggressive
manner than officials elsewhere. Sichuan authorities sometimes
impute terrorist motives to Tibetan monks who travel to India
without permission.
The Chinese government continues to repress Catholics.
Chinese authorities are currently detaining over 40
unregistered clergy and have taken measures this year to
tighten control of registered clergy and seminaries. Despite
assurances of its desire to establish diplomatic relations with
the Holy See, the Chinese government has not altered its long-
standing position that, as a precondition to negotiations, the
Holy See must renounce a papal role in the selection of bishops
and break relations with Taiwan.
The government continues to strictly regulate Muslim
practices, particularly among members of the Uighur minority.
All mosques in China must register with the state-run China
Islamic Association. Imams must be licensed by the state before
they can practice, and must regularly attend patriotic
education sessions. Religious repression in Xinjiang is severe,
driven by Party policies that equate peaceful Uighur religious
practices with terrorism and extremism.
In the past year, the Chinese government continued a
campaign begun in 2002 that focused on harassing and repressing
unregistered Protestant groups and consolidating control of
registered Protestants. Hundreds of unregistered Protestants
associated with house churches have been intimidated, beaten,
or imprisoned. The Chinese government opposes the relationships
that many unregistered Protestant house churches have developed
with co-religionists outside China.
Chinese non-profit associations and organizations are
growing in number and engaging in valuable educational work and
issue advocacy. While some ministries and local governments
support these groups, some high-level leaders consider the
emergence of an independent civil society a threat to
government and Party control. Central authorities use
regulations to limit and control the development of civil
society in China, forcing many groups to remain unregistered or
operate underground. In 2005, Chinese authorities moved to
curtail the activities of international and domestic civil
society organizations, particularly environmental groups that
challenged government policies.
Chinese judicial officials announced ambitious reform goals
in 2005 that would address structural problems affecting the
Chinese judiciary. These include changes to court adjudication
committees, the system of people's assessors, and judicial
review of death penalty cases. Party authorities and local
governments, however,
continue to limit the independence of China's courts. Internal
administrative practices of Chinese courts also compromise
judicial efficacy and independence. The Chinese judiciary has
improved the educational level of Chinese judges and the
quality of their judicial opinions. Rural courts, however, are
rapidly losing judges to urban areas.
The Chinese government does not respect the freedom of
speech and freedom of the press guaranteed in China's
Constitution. Chinese authorities allow government-sponsored
publications to report selectively on information that, in
previous decades, officials would have deemed embarrassing or
threatening. But in the past year, officials have become less
tolerant of public discussion that questions central government
policies. Chinese authorities have tightened restrictions on
journalists, editors, and Web sites, and continue to impose
strict licensing requirements on publishing, prevent citizens
from accessing foreign news sources, and intimidate and
imprison journalists, editors, and writers.
Constitutional enforcement remains a politically sensitive
topic in China, and the near-term prospects for the
establishment of a more robust constitutional enforcement
mechanism are remote. The Chinese government has ruled out
establishing a constitutional court or giving people's courts
the power to review the constitutionality of laws and
regulations, but has affirmed the right of
citizens to petition the National People's Congress Standing
Committee for review of regulations that violate the
Constitution or national law. The effect of this right remains
limited, however, since Chinese citizens have no right to
compel such review or to challenge the constitutionality of
government actions. The Chinese
government has enacted laws to curb administrative abuses, but
Chinese officials retain significant administrative discretion.
Existing legal mechanisms provide only limited checks on
arbitrary or unlawful government actions.
Minorities that are willing to accept state controls and
the official depiction of their ethnic groups and histories
have been able to preserve their cultures while joining Party
and government ranks. Minorities that demand greater effective
autonomy and control over their cultural identities, however,
regularly confront government policies that violate the
Constitution and the Regional Ethnic Autonomy Law. Government
policy in Tibetan areas and in Xinjiang most often contravenes
the Chinese Constitution and law. The government grants
minorities in southwest China that have accepted central
authority, like the Zhuang, Yao, and Yi, more freedom to
exercise their lawful rights. Since 2000, China's autonomous
regions have experienced increased economic output and
improved transportation and communication networks, but central
control over development policy and financial resources has
weakened economic autonomy in minority areas and
disproportionately favored Han Chinese in Tibetan, Uighur, and
other border areas. Central government investment has expanded
educational access for minorities since 1949, though minority
literacy rates and levels of educational attainment remain
below those of the Han. Government-sponsored Han migration to
minority areas has exacerbated ethnic tensions, particularly in
Tibetan areas, Xinjiang, and Inner Mongolia.
The Chinese government promotes conservation, recycling,
and the use of renewable energy sources to address
environmental degradation and the depletion of natural
resources. Weak environmental laws, poor enforcement, and small
government budgets for environmental protection hamper these
efforts. The Chinese government promotes international
cooperation on environmental matters and is receiving foreign
technical assistance for environmental projects in China.
The Chinese Constitution and laws provide for the equal
rights of women, and a network of women's groups advocate to
protect women's rights. But Chinese women have fewer employment
opportunities than men, and their educational levels fall below
those of men. The government has acknowledged these gender
discrepancies and is taking steps to promote women's interests.
Chinese women face increasing risks from HIV/AIDS as the
disease moves from high-risk groups dominated by men into the
general population.
Trafficking of women and children in China remains
pervasive despite government efforts to build a body of
domestic law to address the problem. China's population control
policies exacerbate the trafficking problem. China's poorest
families, who often cannot afford to pay the coercive fines
that the government assesses when it discovers an extra child,
often sell or give infants, particularly female infants, to
traffickers.
The two greatest public health challenges facing China
today are infectious diseases and rural poverty. The central
government is taking steps to improve the public health
infrastructure in rural areas, but China's poor lack preventive
healthcare, and weak implementation of laws that provide for
free vaccinations leave many adults and children unprotected.
Central government efforts to address China's HIV/AIDS epidemic
continue to expand and deepen, but local governments often
harass Chinese activists who work on HIV/AIDS issues.
Government controls inhibit the flow of health-related
information to the public, potentially affecting public health
in China as well as international disease monitoring and
response efforts.
The Chinese government continues its population control
policy, which is scheduled to continue through the mid-21st
century. Coercive fines are the main enforcement mechanism,
although reports of local officials using physical coercion to
ensure compliance continue, even though this practice violates
Chinese law. The severe gender imbalance resulting from the
population control policy has grown worse over the past two
decades. The Chinese government has established a commission to
draft legislation to criminalize sex-selective abortion.
National and local authorities are gradually reforming
China's household registration (hukou) system. In 2005, central
authorities took some steps toward removing work restrictions
on migrants in urban areas, but hukou discrimination in public
services remains prevalent. Hukou reforms are enhancing the
ability of wealthy and educated citizens to choose their place
of permanent residence, but strict economic criteria often
exclude poor rural migrants living in urban areas, preventing
some of China's most vulnerable citizens from receiving public
services.
Chinese citizens resort to thousands of ``letters and
visits'' (xinfang) offices for redress of their grievances
because of deficiencies in the legal system and the absence of
alternative channels for political participation, but only a
small fraction of their appeals are resolved. Citizen
frustration is finding an outlet in collective petitions that
take the form of mass demonstrations or strikes. Because
Chinese authorities punish local officials more severely for
large protests, citizens think that collective petitioning is
more likely to gain results. The government passed new
regulations in 2005 designed to make the xinfang system more
responsive to citizen complaints, but these regulations also
expand the role of xinfang offices and the incentive for
citizens to resort to collective petitioning.
The Dalai Lama has said that he does not seek independence
and aims for a solution based on Tibetan autonomy within China.
But China's leaders do not seem to recognize the benefits of
moving forward in the dialogue with the Dalai Lama or his
envoys. Chinese laws on regional ethnic autonomy contain
provisions that could benefit Tibetans and their culture, but
poor government implementation of these laws largely negates
their potential value. Chinese government statistics suggest
that Tibetans are not yet prepared to compete in the economic
and ethnic environment created by central government policies.
The Tibetan rate of illiteracy is five times higher than
China's national average. Most Tibetans do not have access to a
bilingual education system that can impart skills to help them
compete for employment and other economic benefits. Chinese
laws and official statements lend credibility to Tibetan
concerns that programs such as Great Western Development and
projects such as the Qinghai-Tibet railroad will lead to large
increases in Han migration. The rights of Tibetans to their
constitutionally guaranteed freedoms of religion, speech, and
assembly are subject to strict constraint. Government officials
persecute prominent Tibetans, especially religious leaders,
believed to have links to the Dalai Lama.
The Chinese government forcibly repatriates North Koreans
seeking refuge in China from starvation and political
persecution, contravening its obligations to handle refugees as
required by the 1951 Convention Related to the Status of
Refugees and its 1967 Protocol. The Chinese government
classifies all North Koreans in China as ``illegal economic
migrants'' and denies the United Nations High Commission for
Refugees (UNHCR) access to this vulnerable population. Living
conditions of North Koreans in China are harsh, and women and
children are particularly vulnerable to trafficking and
prostitution. There is a compelling case for the
Chinese government to recognize the North Koreans in China as
refugees and allow the UNHCR access to them: the North Korean
government regularly denies food to particular groups on
political grounds, and refugees returned to North Korea face
long prison terms, torture, or execution.
The Hong Kong people continue to enjoy an open society in
which the freedoms of religion, speech, and assembly are
respected, but the Commission is troubled by a continuing
pattern of central government interference in Hong Kong local
governance through interpretations of the Basic Law. The
Commission emphasizes its belief in the importance of the
central government's obligation to give Hong Kong the ``high
degree of autonomy'' promised in the Basic Law and strongly
supports the provisions of the Basic Law that provide for the
chief executive and the entire legislature to be elected
through universal sufferage. The Hong Kong judiciary
demonstrated its continued independence by protecting the right
of citizens to demonstrate in a case overturning the
convictions of eight Falun Gong practitioners, despite the
central leadership's ongoing campaign to eliminate the Falun
Gong movement.
The Chinese government tolerates intellectual property
infringement rates that are among the highest in the world, and
has not introduced criminal penalties sufficient to deter
intellectual property infringement. Steps taken by Chinese
agencies in the past 12 months to improve the protection of
foreign intellectual property have not produced any significant
decrease in infringement activity. The Chinese government has
made progress in bringing its laws into compliance with its WTO
commitments. Although significant flaws remain, the new body of
commercial laws has improved the business climate for foreign
companies in China. With new, more transparent rules, the
Chinese trade bureaucracy has reduced regulatory and licensing
delays. The government has not fully implemented the key WTO
principles of national treatment, non-discrimination, and
transparency in such areas as distribution and agriculture. To
address these problems, the Chinese government must continue
economic reforms, establish a more transparent and consistent
regulatory and licensing system, implement and enforce
distribution rights for foreign companies, and strengthen
enforcement of intellectual property laws.
Recommendations
The Commission is working to implement the recommendations
made in the 2002, 2003, and 2004 Annual Reports until they are
achieved. Based on the findings presented in this report and
the Commission's belief that the United States must continue to
pursue a dual policy of high-level advocacy on human rights
issues and support for legal reform efforts, the Commission
makes the following additional recommendations to the President
and the Congress for 2005:
Human Rights for China's Citizens
<bullet> The Commission's Political Prisoner Database
is a unique resource for promoting human rights in
China. Members of Congress should use the Database to
support their own advocacy of political and religious
prisoners in China, and should ask official and private
delegations traveling to China to present officials
there with lists of political and religious prisoners
derived from the Database. Members should also urge
state and local officials and private citizens involved
in sister-state and sister-city relationships with
China to use the Database to build new advocacy efforts
for the release of political and religious prisoners.
<bullet> Recent Chinese government regulations on
implementing the Regional Ethnic Autonomy Law require
all local governments to draft and implement measures
to protect minority rights and to teach citizens about
their rights under this law. The President should
propose, and the Congress should appropriate, funds for
U.S.-based NGOs to provide legal and technical training
to assist in these efforts. The President and the
Congress should continue to urge Chinese officials not
to use the global war against terrorism as a pretext to
suppress minorities' legitimate, peaceful aspirations
to exercise their rights protected by the Chinese
Constitution and the Regional Ethnic Autonomy Law.
<bullet> Trafficking of women and children in and
through China remains pervasive despite government
efforts to address the problem. The Chinese government
is collaborating with UN agencies and has adopted
national measures to control human trafficking,
principally by passing criminal laws to punish
traffickers and giving public security bureaus the
chief responsibility for the elimination of
trafficking. The President and the Congress should
continue to support international programs to build law
enforcement capacity to prevent trafficking in and
through China, and should develop and fund additional
programs led by U.S.-based NGOs that focus on the
protection and rehabilitation of victims, especially
legal and educational assistance programs.
<bullet> China's leaders rank social stability as a key
priority and have taken some top-down measures to
address abusive official behavior that contributes to
social unrest. The President and the Congress should
encourage the Chinese government to
continue these positive steps, but should also press
the Chinese leadership for the kinds of bottom-up
changes that will ensure a stable future for China,
including (1) expanding popular participation in
politics by curbing the discretion of election
committees; (2) lifting current restrictions on civil
society by
removing the sponsor organization requirement; (3)
removing restrictions on the news media; (4) giving
Chinese citizens the power to enforce constitutional
protections; (5) and taking decisive steps to make the
judiciary independent.
<bullet> The future of Tibetans and their religion,
language, and culture depends on fair and equitable
decisions about future policies that can only be
achieved through dialogue. The Dalai Lama is essential
to this dialogue. To help the parties build on visits
and dialogue held in 2003, 2004, and 2005, the
President and the Congress should urge the Chinese
government to move the current dialogue toward deeper,
substantive discussions with the Dalai Lama or his
representatives, and encourage direct contact between
the Dalai Lama and the Chinese leadership.
Religious Freedom for China's Faithful
<bullet> The freedom to believe and to practice one's
religious faith is a universal and essential right, and
the Chinese leadership should allow true freedom of
religion for all Chinese citizens. The President and
the Congress should foster and support the development
of the freedom of religion in China by continuing
longstanding U.S. diplomacy on the importance of
religious freedom, and urging Chinese government
engagement with the UN Special Rapporteur on Religious
Intolerance and a continuing dialogue with the U.S.
Commission on International Religious Freedom.
<bullet> The new Regulation on Religious Affairs
adopted in 2005 permits religious organizations to run
social welfare enterprises and religious believers and
organizations to challenge official violations of their
rights. The President should propose, and the Congress
should appropriate, funds to permit U.S. NGOs to help
develop voluntary, independent social welfare projects
and educational initiatives run by religious
organizations. The President should also propose, and
the Congress should fund, appropriate U.S. legal
advocacy organizations to help Chinese believers
understand their rights and seek redress for official
violations of these rights.
Labor Rights for China's Workers
<bullet> U.S. law prohibits imports into the United
States of forced labor products and the Commission is
concerned that products resulting from forced labor in
China may be reaching the United States. The President
should direct the China Prison Labor Task Force created
under Title V of Public Law 106-286 to establish an
electronic database of sites in China known to be
forced labor camps or production facilities. Imports
into the United States of products manufactured in
whole or part in facilities listed in this database
should be presumptively considered to be the products
of forced labor as defined in Section 307 of the Tariff
Act of 1930, until an inspection by U.S. customs
officials determines otherwise.
<bullet> Wage and pension arrears are growing problems
in China and cause labor unrest. The President and the
Congress should support exchange and training programs
with Chinese organizations on orderly systems of wage
and pension payments, including the collection and
payment of outstanding wages and pensions.
Free Flow of Information for China's Citizens
<bullet> The rights to freedom of speech and freedom of
the press are internationally recognized and are
guaranteed in the Chinese Constitution, but Chinese
citizens generally do not know that they have these
rights. The President should propose, and the Congress
should appropriate, funds to support U.S. programs to
develop technologies that would help Chinese citizens
access Internet-based information currently unavailable
to them, as well as educational materials about their
rights under international law to freedom of speech and
freedom of the press.
<bullet> The Chinese government uses technology, prior
restraints, intimidation, detention, imprisonment, and
vague and arbitrarily applied censorship regulations to
suppress free expression and control China's media. The
President and the Congress should urge the Chinese
government to eliminate prior restraints on publishing,
cease detaining journalists and writers, stop blocking
foreign news broadcasts and Web sites, and specify
precisely what kind of political content is illegal to
publish.
Rule of Law and Civil Society
<bullet> The Chinese government forcibly repatriates
North Koreans seeking refuge in China and denies the
Office of the United Nations High Commissioner for
Refugees (UNHCR) access to this vulnerable population,
contravening its obligations under the 1951 Convention
Related to the Status of Refugees and its 1967
Protocol, as well its 1995 Agreement with the United
Nations. The President and the Congress should press
the Chinese government to uphold its international
agreements and grant the UNHCR unimpeded access to
screen North Koreans' refugee petitions.
<bullet> The Resident Legal Advisor at the U.S. Embassy
in Beijing has provided important analysis of legal
reform developments in China and coordination for legal
exchanges between the United States and China. Despite
this important role, the Advisor position has no
permanent funding source. The President and the
Congress should work to create a permanent Resident
Legal Advisor position at the U.S. Embassy in Beijing.
<bullet> The Chinese government has developed a new
body of commercial law since acceding to the WTO in
2001, but many Chinese officials, judges, and lawyers
have not been trained on the new laws and do not
understand the legal principles. The President should
propose, and Congress should fund, a technical
assistance program for Chinese officials conducted by
the Commercial Law Development Program at the U.S.
Department of Commerce. The program should emphasize
effective methods of criminal enforcement of
intellectual property rights given the persistently
high levels of piracy and counterfeiting; the
consistent application of trade-related measures at
different levels of government; techniques to improve
transparent procedures in governance; and the
implementation of the key WTO principles of national
treatment, non-discrimination, and transparency.
The Commission's Executive Branch members have participated
in and supported the work of the Commission, including the
preparation of this report. The views and recommendations
expressed in this report, however, do not necessarily reflect
the views of individual Executive Branch members or the
Administration.
This report was approved by a vote of 18 to 1, with 1
answering ``present.''<dagger>
II. Introduction: Growing Social Unrest and the Chinese Leadership's
Counterproductive Response
Growing Social Unrest and the Roots of Instability
Social unrest in China is growing. According to official
Chinese statistics, the number of public protests in China
increased every year between 1993 and 2004. In 2003, public
security authorities reported 58,000 public protests involving
more than 3 million people. In 2004, public security
authorities reported 74,000 public protests involving more than
3.5 million people, and a seven-fold rise from the 10,000
protests recorded in 1994. In October 2004 alone, more than 2
million farmers reportedly took part in more than 700 protests.
Many problems fuel China's social unrest. Unlawful land
seizures and embezzled compensation payments led to numerous
land disputes, with one Chinese social scientist warning of
``turbulence'' if the government does not solve these problems.
Laid off workers and pensioners protested unpaid wages, poor
labor conditions, and unemployment, with some incidents
involving tens of thousands of protestors. Abusive police
behavior sparked large-scale protests in Chongqing, Gansu,
Guangdong, Sichuan, and Yunnan last year. Environmental
degradation is also a growing cause of citizen protests. The
number of collective petitioning efforts, involving hundreds or
thousands of protestors trying to present their grievances to
officials at successively higher levels of government, is
growing. Public anger also manifests itself on the Internet,
where reports on law enforcement abuse sometimes generate waves
of media criticism and individual commentary.
Most demonstrations begin peacefully, but some turn
violent, often in response to government crackdowns. Last fall
in Chongqing, for example, an official's alleged abuse of a
vendor during a minor street scuffle led to a riot involving
more than 10,000 citizens. In November 2004, authorities in
Sichuan province dispatched more than 10,000 troops and police
to control a demonstration involving nearly 100,000 farmers
angry over a hydroelectric project and related land
confiscations. In June 2005, hundreds of armed thugs linked to
a local development project reportedly killed 10 villagers and
seriously wounded more than 100 while trying to evict the
villagers from their land in Henan province.
The inability of government institutions and legal
mechanisms to address corruption and social conflicts magnifies
public anger. Official statistics indicate that the number of
citizen petitions to
government offices is growing rapidly, but according to Chinese
scholars, government agencies address only about 0.2 percent of
them. Chinese citizens may sue government officials under the
Administrative Litigation Law, but they face a number of
obstacles in successfully bringing such claims. These obstacles
include a lack of legal representation, weak judicial capacity,
Party and government interference in the courts, judicial
corruption, and the prospect of official resistance or even
retribution. In some cases, authorities specifically instruct
courts not to accept too many administrative claims. Chinese
law prohibits citizens from forming independent civil society
organizations to support citizen complaints, and the Party
limits political participation to channels that it designates,
monitors, and controls. Without effective administrative,
legal, and political channels through which to redress their
grievances, citizens often have little choice but to protest.
The Leadership's Counterproductive Response
China's leaders rank social stability as a key priority,
and officials are attempting to address some of the immediate
causes of
social unrest. In the past year, the government passed laws and
initiated campaigns with the stated goals of combating
corruption, curbing law enforcement abuse, limiting
administrative discretion, and resolving such problems as
unlawful land seizures and unpaid wages. In an effort to defuse
resentment of law enforcement agencies, for example, the
Ministry of Public Security and the Supreme People's
Procuratorate initiated campaigns to address corruption,
unlawful detention, and torture. The government has also
undertaken efforts to ensure that employers pay migrant
laborers.
While taking some steps to address public anger, the
leadership has also imposed new controls that intensify the
underlying causes of social unrest. Over the past year, the
Chinese government launched a campaign to increase restrictions
on the free flow of information. As part of this campaign,
officials banned hundreds of ``illegal'' political
publications, established a licensing system for reporters, and
imposed new registration requirements for Web sites. Officials
also prosecuted journalists and editors who reported too
aggressively on local abuses and prohibited the use of text
messaging and other media to circulate ``rumors'' and other
``harmful'' information. The Central Propaganda Department
prohibited reporting on political and social topics the Party
deemed sensitive or embarrassing. In May 2005, for example, the
Department issued a new directive limiting the ability of news
media to publish exposes on corruption and abuse in other
locales. In late 2004, censors banned reports on land seizures,
warning news media against ``inducing and intensifying
contradictions.'' Authorities also restricted public reporting
on demonstrations and disturbances. These controls undermine
the press, one of the few existing checks on local abuse, and
leave officials and powerful private interests free to engage
in the corrupt practices that are generating unrest across
China.
The government also launched a new crackdown on
intellectuals, social critics, and public activists. In the
fall of 2004, the Liberation Daily published a critique of
``public intellectuals,'' declaring that ``the concept of
public intellectuals had been introduced to drive wedges
between intellectuals and the Party and between intellectuals
and the general public.'' Since then, authorities have
harassed, detained, and imprisoned many intellectuals and
activists, including some who were working to address social
and economic problems that the central leadership had
acknowledged. For example, police arrested Li Boguang, who had
been helping farmers
petition the central government over local land abuses in
Fujian province; Yang Tianshui, an advocate for migrant
laborers; and Chen Guangcheng, a blind lawyer who had been
campaigning against forced sterilizations and abortions in
Shandong province. Police also detained Ye Guozhu and Ni Yulan,
two Beijing housing activists, after they attempted to follow
legal procedures and applied for a permit to protest forced
evictions in Beijing.
Similarly, the Chinese government has increased controls
over civil society and autonomous social organizations. The
government continues to subordinate China's state-run union to
the interests of the Party and prohibit the formation of
independent labor unions that could address worker grievances.
Early in 2005, authorities took steps to curb the growing
activism of environmental groups that had challenged government
development decisions by pressuring them to join a government-
controlled umbrella organization. Officials also began a
crackdown on social groups registered as business organizations
and continued to enforce restrictive registration and
sponsorship requirements for civil society organizations.
Government and Party officials have acknowledged the
important role that voluntary social organizations play in
helping to address China's social problems. Instead of
supporting the development of civil society organizations that
could help resolve social and economic issues, however, the
Chinese leadership has imposed new restrictions on these groups
that undermine their ability to provide assistance, forcing
many to operate underground.
Government repression of unregistered religious believers
and ethnic minorities also contributes to instability. In 2005,
the Chinese leadership refocused government attention on the
traditional Party fear that religion and ethnicity are being
used by ``hostile outside forces'' to infiltrate and
destabilize Chinese society. As a result, instead of
implementing China's new Regulation on Religious Affairs in a
way that offers new redress to believers against errors and
abuses by the state's religious bureaucracy and encourages
faith-based social organizations, the Party directed local
officials to ``control'' believers. Such tactics force
religious expression underground and push otherwise law-abiding
believers into conflict with the government.
The Chinese government relies on a combination of top-down
rectification campaigns, political controls, and repression to
achieve its version of social stability. These measures have
failed to control corruption, local abuses, and social unrest,
fueling additional resentment on the part of China's citizens.
Citizen efforts to address government abuses are driven
underground, while local officials enjoy even greater
discretion to violate rights. Without full transparency, free
information flow, independent political participation, a
vibrant civil society, genuine autonomy for ethnic minorities
and religious believers, enforceable constitutional and legal
rights, and effective checks on administrative discretion,
China's leaders will not achieve the goal of maintaining a
stable internal environment as the foundation for continued
national development.
III. Monitoring Compliance With Human Rights
III(a) Special Focus for 2005: China's Minorities and Government
Implementation of the Regional Ethnic Autonomy Law
FINDINGS
<bullet> Minorities that are willing to accept state
controls and the official depiction of their ethnic
groups and histories have been able to preserve their
cultures while joining Party and government ranks.
Minorities that demand greater effective autonomy and
control over their cultural identities, however,
regularly confront government policies that violate the
Constitution and the Regional Ethnic Autonomy Law.
Government policy in Tibetan areas and in Xinjiang most
often contravenes the Chinese Constitution and law. The
government grants minorities in southwest China that
have accepted central authority, like the Zhuang, Yao,
and Yi, more freedom to exercise their lawful rights.
<bullet> Since 2000, China's autonomous regions have
experienced
increased economic output and improved transportation
and communication networks, but central control over
development policy and financial resources has weakened
economic autonomy in minority areas and
disproportionately favored Han Chinese in Tibetan,
Uighur, and other border areas. Central government
investment has expanded educational access for
minorities since 1949, though minority literacy rates
and levels of educational attainment remain below those
of the Han. Government-sponsored Han migration to
minority areas has exacerbated ethnic tensions,
particularly in Tibetan areas, Xinjiang, and Inner
Mongolia.
China's Ethnic Minorities and Minority Policy
China's ethnic makeup is complex.\1\ Fifty-five minority
groups speak more than 60 languages\2\ and practice a variety
of religions. Though they constitute less than 9 percent of the
total population, minorities are spread across almost two-
thirds of the Chinese landmass, chiefly along international
borders. More than 30 minority groups have ethnic counterparts
in neighboring countries,\3\ and Communist Party policies in
minority areas stress loyalty to China. Government concerns
over the loyalty of minorities have increased with the growth
of popular movements in neighboring Central Asian states.\4\
Minorities are typically much poorer than members of the
Han majority.\5\ Chinese authorities argue that tensions
between the Han and minorities result primarily from uneven
levels of economic development. Officials stress that ``all
minority problems'' can be resolved by promoting socialist
development and increasing propaganda on the interdependence of
the country's nationalities and on the ``correct interpretation
of ethnic histories.'' \6\ Not all minorities support the
central government's development approach, contending that
economic advancements disproportionately favor Han Chinese.\7\
Nevertheless, central authorities report marked improvements in
social and economic development within the autonomous areas.
When the Party assumed power in 1949, less than 20
percent of the minority population had even limited Mandarin
language competency, illiteracy rates were high,\8\ poverty was
widespread, and transportation and communication infrastructure
was nearly non-existent. Discrepancies in wealth between
minorities and Han Chinese have increased since market reforms
began in 1978,\9\ and literacy rates in many minority areas
remain far below the national average.\10\ Central government
investment in minority regions has, however, raised overall
educational levels,\11\ improved transportation and
communication networks, and trained a corps of minority cadres
willing to work in government.
The Chinese Constitution, the 1984 Regional Ethnic Autonomy
Law (REAL),\12\ and a number of related laws and regulations
define minority rights. The Constitution entitles minorities to
establish autonomous governments in territories where they are
concentrated, but like all Chinese citizens, minorities must
accept the leadership of the Party,\13\ ``safeguard the
security, honor, and interests of the motherland,'' and place
the interests of the state ``above anything else.'' \14\ The
REAL grants autonomous governments the authority to formulate
regulations reflecting local minority culture as long as they
do not directly contravene central policy.\15\ The law allows
autonomous governments to alter, postpone, or annul national
legislation that conflicts with local minority practices, but
the next higher level of government must approve such changes
and they may not contradict the basic spirit of national
policies.\16\
Implementation of the REAL varies greatly by region and by
minority group.\17\ The Chinese government prohibits all
Chinese citizens from expressing sentiments that ``incite
splittism'' or ``divide nationality unity,'' but monitors
minorities more closely than Han Chinese.\18\ The government
grants a degree of local autonomy to ethnic groups that accept
the central government's authority, but silences those who
attempt peacefully to advocate their rights under Chinese law.
Mongol activist Hada, for example, is serving a 15 year prison
sentence for organizing peaceful demonstrations for rights
provided in the REAL. Minorities in the southwest have had more
freedom to exercise their autonomy because they rarely
challenge central authority.\19\ The government tightly
restricts religious practices and expressions of cultural
identity in Xinjiang,
Tibetan areas, and Inner Mongolia, however. In contrast to
southwestern minorities, the Tibetans, Uighurs, and Mongols
live in cohesive communities largely separated from Han
Chinese, practice major world religions, have their own written
scripts, and have supporters outside of China. Relations
between these minorities and Han Chinese have been strained for
centuries.
The government continued to violate minority rights in
Tibetan areas and Xinjiang throughout the year, but elsewhere
Chinese authorities took some steps to improve the treatment of
minorities. In May 2005, the State Council announced new
Regulations on Implementing the Regional Ethnic Autonomy Law
(REAL Implementing Regulations). The Regulations include
provisions increasing compensation requirements for central
government extraction of
natural resources from autonomous regions,\20\ strengthening
the monitoring and reporting mechanisms on REAL
implementation,\21\ and developing guidelines for penalizing
government officials who violate minority rights.\22\ The REAL
Implementing Regulations also require local governments to
educate minorities about their rights and to draft specific
measures to protect their rights and interests.\23\ A
university and several governments in autonomous areas
announced new legal aid and social services centers throughout
the year.\24\ In March, a group of Darhad Mongols successfully
invoked rights provided in the REAL, United Nations
regulations, and the national Land Administration Law to bar
the construction of a Han Chinese-owned Genghis Khan theme park
on a site overseen by Mongols since 1696.\25\
Despite these positive steps, the REAL Implementing
Regulations also increase the role of the central government in
autonomous areas, reflecting a broader national campaign to
increase Party controls over society. All of the new State
Council measures are binding on autonomous governments,
including specific economic development projects, language
policies, and migration policies that the autonomous
governments previously had the authority to determine
themselves.\26\ Central authorities also tightened controls
over minority cultural representation and launched an extensive
propaganda campaign on the role of China's minorities in
building a united, multi-ethnic nation.\27\ The same campaign
stresses that future prospects for minorities depend on
cooperating with the Han majority.
Legal Framework For Minority Rights
Minority rights protected under Chinese law may be roughly
divided into seven categories: self-governance and
representation, economic autonomy, educational autonomy,
religious freedom, cultural expression, language use, and
freedom from discrimination. Although the laws themselves
contain provisions ensuring central control over minority
areas,\28\ much of the discontent among minorities with central
authority stems from uneven and incomplete implementation of
the law rather than flaws in the legal framework itself.
Self-governance and minority representation
The Constitution entitles minorities living in concentrated
communities to establish autonomous governments,\29\ though
their autonomy remains limited in practice. The 1984 REAL grants
autonomous governments all of the powers awarded other local
governments and the right to formulate three additional types
of regulations: self-governing regulations, separate
regulations,\30\ and separate alterations to national laws.
None of these regulations may contradict the ``basic
principles'' of national laws or policies, though the local
regulations may adapt national laws, regulations, and policies
to suit local minority customs.\31\ Self-governing regulations
establish each autonomous government's organizational structure
and local economic, cultural, and public service development
plans. Self-governing regulations must be approved by the next
higher-level government before final submission to the National
People's Congress Standing Committee (NPCSC). To date, the
NPCSC has not approved any self-governing regulations of the
five provincial-level autonomous regions,\32\ although 133 of
the country's 30 autonomous prefectures and 120 autonomous
counties have issued local self-governing regulations.\33\ Most
of these self-governing regulations were passed between 1984
and 1992, and a number of their provisions have not kept pace
with continuing changes in central government political,
economic, and social policies.\34\
Autonomous governments have passed 383 separate regulations
and 68 alterations to national laws, but they are vaguely
worded and address only a limited set of state-approved
topics.\35\ Most of these rules lower the legal marriage age
for minorities, and only a few give greater fiscal autonomy or
control over local natural resources to the local
governments.\36\ Several Chinese scholars argue that autonomous
regulations fail to reflect local minority conditions,
rendering the concept of regional autonomy ``purely
cosmetic.'' \37\ The inability of autonomous governments to
pass effective local regulations, combined with the poor
implementation of such regulations and a lack of trained
minority legal personnel, undermines the development of the
rule of law in minority areas.\38\
Chinese legal analysts note that minorities would better
accept the formal legal system if autonomous regulations
accurately reflected minority customs.\39\ One minority scholar
laments that minorities ``often simply give up on litigation and
handle matters privately, through customary minority practice''
because the courts ``ignore the existence of minority customs''
and lack financial and political independence.\40\ Autonomous
governments in Muslim areas, for example, have yet to pass
legislation to legalize Islamic inheritance customs that
directly conflict with the National Inheritance Law.\41\
The Chinese government has passed a number of laws and
policies designed to increase minority representation within
the government and state-owned enterprises, but minorities
remain underrepresented and fill a disproportionate number of
low-level positions in the government.\42\ The REAL requires
that the head of each autonomous government be drawn from the
titular minority and that state personnel be drawn equitably
from local minority groups. The government has funded 13
institutes of higher education to train minority students and
mid-level officials, and promotes minorities with ``solid
political viewpoints'' that match state policies.\43\ But the
educational level of minority government employees remains
lower than their Han counterparts,\44\ and minorities are
inadequately represented within economic agencies.\45\ Although
minorities are well represented in the National People's
Congress,\46\ the legislature remains subordinate to the Party
and individual deputies wield little power.
Chinese law makes no provision for minority representation
within the Party apparatus, where minorities constitute only
6.3 percent of the total membership and rarely hold high-level
positions.\47\ In 2000, each of the 125 regional, prefectural,
municipal, and county-level Party first secretaries in Xinjiang
was Han, as were the first secretaries of all five provincial-
level autonomous regions.\48\ Reflecting the sensitivity of the
subject, neither the press nor scholarly journals discuss
minority representation in the Party.\49\ The Party's official
atheism, reflected in a rule prohibiting Party members from
practicing religion, also undermines minority participation in
Party affairs.\50\
The central government continues to place Han Chinese
``from the interior'' into key technical and political posts in
autonomous areas and to encourage Han laborers and farmers to
move into these regions.\51\ The government contends that this
is necessary to ``lead'' economic development in these areas
and combat efforts to undermine ethnic unity by ``hostile
domestic and foreign forces.'' \52\ The policy has undermined
minority autonomy and increased ethnic tensions, most
dramatically in Xinjiang and Tibetan areas. Central and local
directives emphasize that Han leadership is needed to spur
development in autonomous areas due to the dearth of educated
minorities,\53\ but the government encourages technically
trained minorities to leave the autonomous areas while
supporting the influx of both skilled and unskilled Han
workers.\54\ The REAL Implementing Regulations require
autonomous governments to ``guide and organize'' local
residents to go to ``other areas'' in search of jobs and
business opportunities.\55\ By government decree, officials
that have been relocated to autonomous areas are better
compensated than local administrators. The REAL Implementing
Regulations increase the central government's commitment to
transferring Han personnel ``from all fields and all levels''
to minority areas, extending a policy that the State Ethnic
Affairs Commission boasts has already sent ``tens of thousands
of cadres to the border areas since 1982.'' \56\
Economic autonomy
Although the economies of the minority regions have grown
substantially since 1949, central authorities often determine
development strategies with little input from minority
residents. Central authorities provide autonomous governments
additional funds and financing options beyond those provided
non-autonomous governments.\57\ At the same time, autonomous
areas have become in-
creasingly dependent on central subsidies to support their
local
operating budgets, particularly since the launch of the Great
Western Development program in 2000.\58\ More than 60 percent
of Xinjiang's economy is state-owned, for example, and
centrally funded infrastructure projects and major natural
resource extraction projects since 2000 have increased the
central government's share of the Xinjiang economy. Minorities
often complain that they are not benefiting from the central
economic development programs,\59\ though such allegations are
difficult to confirm given tight controls over reporting on
certain types of economic information.
Chinese law grants autonomous regions the right to manage
and protect their natural resources,\60\ but state policies
often ignore such provisions. The Chinese Constitution states
that all natural resources are owned by ``the state, that is,
by the whole people,'' but the REAL grants autonomous
governments the right to assign ownership of the pastures and
forests within these areas and requires the state to give
minorities some compensation for all natural resources
extracted from their territories.\61\ Human rights groups and
Western analysts note that central government grasslands
policies threaten to destroy the nomadic lifestyle of many
Mongols and Tibetans. These analysts also say that the
minorities have been denied a voice in grasslands
management.\62\ Increased Han immigration into Xinjiang has
increased pressure on scarce water resources and contributed to
rapid desertification.\63\ Many minorities complain privately
that Han developers are stripping away their natural resources
and that Han Chinese monopolize high paying jobs in resource
extraction projects. The REAL Implementing Regulations require
that all natural resource extraction projects in autonomous
areas benefit local economic development and employment, though
it is too early to tell if the Regulations will result in
policy changes. The Regulations also mandate new compliance
monitoring and reporting mechanisms and impose
administrative and criminal penalties on those violating the
Regulations,\64\ which may encourage greater compliance with
the Regulations by developers.
Educational autonomy
Although the REAL grants autonomous governments the right
to control their educational systems,\65\ the central
government retains tight control over the curricula and
promotes the use of Mandarin Chinese in the classroom.
Autonomous governments and the central government have
developed an array of special schools and programs for
minorities, increasing the total number of ethnic students
enrolled in classes more than 17-fold since 1949.\66\
Minorities accounted for only 1.4 percent of the total student
population in institutes of higher learning in 1949, but the
figure rose to 6 percent by 1999.\67\ Minorities are allowed to
enter universities with lower test scores than Han and are
eligible for special scholarships. The government has
established special year-long preparatory classes for
minorities requiring remedial assistance before they enter
universities. More than 9,000 students attended such classes in
2001.\68\ The government has also set up special mobile classes
catering to nomadic minority communities.
Minorities are entitled by law to set their own curricula,
but in practice the central government strictly controls the
content of teaching materials in minority classes to ensure
``the proper understanding of nationality relations and
advanced socialist thinking.'' \69\ Educators in autonomous
areas report that the government controls the content of
history textbooks strictly. They complain that textbooks
written in the local minority script are translations of the
standard Chinese texts.\70\ One Western study found that
minority students have difficulty relating to the material in
the standard Chinese curriculum and thus lose interest in
learning.\71\
Religious freedom
The Constitution entitles minorities, like all citizens of
China, to freedom of religious belief, though Uighurs and
Tibetans have been effectively stripped of this right. Religion
is the central marker of ethnic identity for many minorities,
and the government often equates the religious activities of
these groups with ``ethnic chauvinism'' and ``local
splittism.'' \72\ The government represses Uighur and Tibetan
religious practices [see Section III(d)--Freedom of Religion
and Section VI--Tibet], though official policy concedes that
minority religious beliefs are a ``long-term issue'' and
``cannot be forcibly resolved in the short-term.''\73\
Minorities outside of Xinjiang and Tibetan areas who belong to
one of the five officially recognized religions are generally
allowed to practice their religions in registered religious
venues managed by state-licensed clergy. Many minorities
practice religions unique to their ethnic groups (and not one
of the five state-recognized religions), which the government
tacitly allows as a ``minority custom'' rather than as a
religion per se.\74\ Autonomous governments are required to
teach ``scientific thinking,'' a Party catchphrase for atheism,
in the public school system and must prevent religion from
``infiltrating'' the educational system.
Cultural expression
The central government has tightened controls over
political expression during the past 12 months throughout the
country [see Section III(e)--Freedom of Expression], including
in minority areas. The government increased already strict
controls over how minority cultural traits, histories, and
religions are depicted in popular media and schools as well as
in academic circles. Officials also tightened controls on
cultural expressions about minority relations with Han Chinese
and increased propaganda in 2005 highlighting both the
achievements of Party minority policy and the official view of
minority relations.\75\ In May, Central Chinese Television
broadcasted a series of documentaries on the accomplishments of
the regional autonomy system and a feature film set in Tibetan
areas and Yunnan depicting ``the great melding of nationalities
into a single whole, bound by blood and affection.'' \76\ Since
1949, the Party has monitored all forms of expression in
autonomous areas to assure that minorities accept official
Party historiography.\77\ As recently as 2002, authorities held
public book burnings of minority-authored works that conflict
with official histories depicting relations among the
minorities as harmonious.\78\ To co-opt the histories of
minority groups, the central government has invested in ethnic
``cultural enterprise centers'' where minorities conduct
officially sanctioned research and attend approved cultural
festivities and performances.\79\ The State Council's February
2005 White Paper on Regional Autonomy hails the expansion of
minority language publications and broadcasts, artistic
troupes, museums, libraries, and histories,\80\ but also
stresses the role of the central government in each of these
cultural enterprises.\81\
Language policy
The REAL entitles minorities to use and develop their own
spoken and written languages,\82\ though in practice language
policy varies by region and ethnic group.\83\ The law says that
minorities should use textbooks written in their own languages
``whenever possible'' and use these languages as the medium of
instruction. Though many minorities continued to use their
native languages in primary and some middle schools,\84\ the
central government increased its efforts this year to promote
universal competency in Mandarin Chinese throughout the
country.\85\ In some minority areas, local groups reported
decreased government support for minority language use, but few
overt restrictions.\86\ In Xinjiang the policy appeared more
coercive, as discussed later in this section [for more on
language policy in Tibetan areas, see Section VI--Tibet].
Upward social, economic, and political mobility is increasingly
dependent upon one's ability to use Mandarin Chinese. Many
minority groups welcome the opportunity to develop their
Mandarin skills, while emphasizing the importance of promoting
their own minority languages.
The Inner Mongolia Autonomous Region government passed a
new regulation in May which, if properly implemented, promises
to expand the use of the Mongol language. The regulation calls
for increased use of Mongolian in regional colleges, economic
incentives for students in Mongolian language schools, merit
increases for bilingual government workers, and increased
Mongolian media broadcasts. It also mandates greater regional
funding for minority language publications and broadcasts.\87\
The regulation contains more specific provisions for promoting
the Mongol language and elevating the status of Mongolian
speakers than found in national laws or other local
regulations.\88\ The new regulation also contains enforcement
clauses, making it more likely to be implemented than earlier
official statements supporting minority language use.
Freedom from discrimination
The Chinese Constitution states that all minorities are
equal and prohibits all acts that discriminate against or
oppress nationalities. Nevertheless, ethnic discrimination
continues to exist throughout China, in both the government's
controls over cultural and religious expression and in private
and governmental hiring practices. Many Han Chinese
entrepreneurs with businesses in autonomous areas intentionally
recruit Han workers from neighboring provinces rather than work
with local minorities.\89\ Employers favor those with fluent
Mandarin language skills and, in some areas, certain job
listings bar specific minorities from applying.\90\ In the
Tibetan Autonomous Region, the highest paying jobs are largely
staffed by Han Chinese.\91\ The central and Xinjiang
governments announced personnel decisions in 2005 that
explicitly favored Han Chinese over minorities. In April 2005,
for example, the government specified that 500 of 700 new civil
service positions in southern Xinjiang, where over 95 percent
of the population is Uighur, would be reserved for Han
Chinese.\92\ The government actively recruited Chinese from
outside of Xinjiang to assume key posts in the autonomous
region, while providing insufficient incentives to stem the
flow since 1979 of more than 200,000 trained personnel from
Xinjiang to the east coast.\93\ Han Chinese now constitute over
40 percent of the population in Xinjiang, compared to less than
6 percent in 1949. In April 2005, 9,000 workers from Han-
populated poor counties in Gansu accepted ``long-term
contracts'' to work on Production and Construction Corps farms
in Xinjiang, despite high levels of unemployment among
minorities living nearby.\94\
Rights Violations in Xinjiang\95\
Since the Soviet Union dissolved in 1991 and independent
states were established in Central Asia, the Chinese government
has tightened controls over Uighur expressions of ethnic
identity.\96\ Since the 9/11 terrorist attacks in the United
States, the Chinese government has equated peaceful expressions
of Uighur identity with ``subversive terrorist plots.'' \97\
The Xinjiang government has increased surveillance and arrests
of Uighurs suspected of ``harboring separatist sentiments''
since popular movements ousted Soviet-era leaders in Ukraine,
Georgia, and Kyrgyzstan.\98\ In May 2005, the Xinjiang
government intensified its ``strike hard'' campaign against
activities it characterizes as ethnic separatism, religious
extremism, or international terrorism.\99\ In September 2005,
Chinese authorities declared the ``East Turkestan forces'' the
primary terrorist threat in China, and acknowledged that
Xinjiang authorities have increased police surveillance and
political controls throughout the region this year.\100\
Recent government policies only exacerbate ethnic tensions
in Xinjiang. The government's promotion of rapid economic
development in the region disproportionately benefits Han
Chinese and, together with restrictions on religious,
linguistic, and cultural freedoms, and government-supported,
large-scale Han migration into the area, has increased Uighur
resentment and fears of coercive cultural assimilation.\101\
Although the extensive security apparatus in Xinjiang\102\
appears for the present to have crushed Uighur calls for
greater autonomy, scholars report that ``the majority of
Uighurs are unhappy with the system of autonomy and the course
of politics.'' \103\ One prominent Western scholar notes that
``repression on this scale may temporarily succeed in subduing
the expression of ethnic identity but in the long-term it can
only increase the resentment that Uighurs feel . . . and fuel
deeper conflict in the future.'' \104\
Many of the rights granted by the REAL are given to
autonomous area governments rather than to individual citizens,
and the government carefully controls the appointment and
training of all Uighur officials. According to one U.S.
scholar, ``in the estimation of ordinary Uighurs, those Uighurs
who have risen to top leadership positions have been selected
not for their responsiveness to popular concerns but because of
their tractability.'' \105\ Uighur officials, like ethnic
officials in Tibetan areas, are subject to rigorous political
indoctrination. As part of the ongoing national ``Advanced
Culture'' campaign, the Xinjiang government insists that all
Party members, who must be atheists, carefully study the
``correct relationship between religion and advanced socialist
culture.'' \106\ A 2004 article in the Party's main theoretical
journal reported that Xinjiang is intensifying political
education for all government workers, particularly for those
with ``paralyzed thinking . . . who fail to clearly distinguish
between legitimate and illegal religious activities.'' \107\
The government continued its campaign to restrict the use
of the Uighur language in favor of Mandarin Chinese, despite
provisions in the REAL protecting the right of minorities to
use and promote their own languages. Government efforts to
limit Uighur language use began in the 1980s, but have
intensified since 2001 and throughout the past year.\108\ In
May 2002, the Xinjiang government announced that Xinjiang
University would change the medium of its instruction to
Mandarin Chinese. A March 2004 directive ordered ethnic
minority schools to merge with Chinese-language schools and
offer classes in Mandarin.\109\ Despite a severe shortage of
teachers in Xinjiang,\110\ the government is forcing teachers
with inadequate Mandarin Chinese out of the classroom.\111\
Party Secretary Wang Lequan noted in April 2005 that Xinjiang
authorities are ``resolutely determined'' to promote Mandarin
language use, which he found ``an extremely serious political
issue.'' \112\ The government favored Mandarin speakers when
setting school admission requirements and in hiring government
personnel.\113\
Uighurs have not been able to determine their own school
curricula as provided by the REAL. The government demands that
teachers place primary emphasis on political instruction over
other subjects.\114\ Any mention of religion in the public
schools is strictly prohibited. Primary and middle schools are
barred from offering Arabic language instruction because
according to the government ``Arabic has never been a language
used by any of our minorities and has only been used as a
religious language by a small number of people.'' \115\ In
January 2005, Wang urged the Party to rewrite textbooks and
``increase the regulation of classroom instruction, academic
forums, seminars, and community activities.'' \116\ He
emphasized the importance of ``politicians managing education
and politicians operating schools.'' Throughout the province,
schools became the ``battlefront for strengthening the Party.''
\117\ The Yili Kazakh Autonomous Prefecture Educational
Department criticized teachers for ``putting too much emphasis
on teaching and not enough on politics.'' \118\ In April 2005,
Wang announced that more than 1,700 college teachers had
completed 20-day training classes on increasing political
controls in schools.\119\
Government controls over expression increased in 2005 as
the Xinjiang and central authorities ``waged war'' against what
they called ``new plots'' to divide the country by those
``raising the banner of `human rights,' `nationalities,' and
`religion.' '' \120\ A Xinjiang prefectural Party secretary
alleged that splittists were using DVDs, popular music, movies,
and literature to promote separatism. He also claimed it was
necessary to intensify controls over all forms of media and
art, increase Party propaganda, use loudspeakers and banners in
every village, and remain diligent so that the Party can
maintain national unity.\121\
The government continues to arrest Uighur journalists and
authors who write news articles or literary pieces that the
government charges ``incite separatism'' or ``disclose state
secrets.'' The Xinjiang authorities define any discussion of
``important'' ethnic policies as a state secret.\122\ In
February 2005, the Kashgar Intermediate People's Court
sentenced Uighur author Nurmemet Yasin to 10 years imprisonment
for publishing a short story in the Kashgar Literature Journal
allegedly containing allegories ``inciting splittism.'' \123\
Doctoral candidate Tohti Tunyaz continues to serve an 11 year
sentence imposed in 1999 for ``revealing state secrets'' in
Japanese publications on Uighur history.\124\
The government has sentenced many Uighurs to long prison
terms for peacefully expressing discontent with government
policies. In August 1999, a Xinjiang court sentenced a group of
18 Uighurs to prison terms of up to 15 years for alleged
separatist activities, none of which involved violence.\125\
The alleged leader of the group, Shirmemhemet Abdurishit, is
serving a 15 year sentence.\126\ Although in March 2005 the
government released Uighur businesswoman Rebiya Kadeer several
months before the end of her eight year sentence for ``leaking
state secrets,'' hundreds of Uighur prisoners of conscience
remain in prison.\127\ Authorities began harassing Kadeer's
relatives in Xinjiang after she publicly discussed the plight
of the Uighurs from her new home in the United States.\128\
III(b) Rights of Criminal Suspects and Defendants
FINDINGS
<bullet> China's criminal justice system experienced
continued upheaval over the past year. After several
wrongful conviction scandals, the central government
permitted a broad public critique of the criminal
justice system. This discourse confirmed the extent to
which coerced confessions, police incompetence,
pervasive presumptions of guilt, extrajudicial
influences on the courts, restrictions on defense
attorneys, and other problems undermine the fairness of
the criminal process.
<bullet> The Chinese government continues to use
administrative procedures and vaguely worded criminal
laws to detain Chinese citizens arbitrarily for
exercising their rights to freedom of religion, speech,
and assembly. The UN Working Group on Arbitrary
Detention noted in December 2004 that the Chinese
government has not adequately reformed these practices.
<bullet> Many Chinese scholars and officials continue
to push for reforms within the boundaries set by the
Communist Party and Chinese legal culture and to engage
foreign counterparts in this process. Domestic reaction
to recent wrongful conviction scandals has created new
momentum for some criminal justice reforms.
China's ``Strike Hard'' Campaign and New Scrutiny of the Criminal
Justice System
The Chinese government's ``strike hard'' anti-crime
campaigns are evolving from periodic and intense national
crackdowns into a lower-intensity but permanent feature of the
law enforcement landscape. This trend continued over the past
year. While stressing the need to maintain ``strike hard''
efforts, key Chinese law enforcement officials emphasized that
``strike hard'' must become a ``regularized'' and ``long-term''
policy.\1\ Some Chinese sources suggest the government is
transforming ``strike hard'' in part because leaders recognize
that many criminals simply wait for the periodic campaigns to
end and then resume their activities.\2\ One Chinese source
also noted that the intense, short-term campaigns of the past
resulted in rights abuses and injustice.\3\ Within this
evolving ``strike hard'' framework, public security agencies
continued to launch frequent, small-scale anti-crime campaigns
targeting particular regions or crimes.\4\
Overall crime rates continued to rise in China in 2004,
according to official statistics and regional reports. Public
security agencies filed a total of 4.7 million criminal cases
and prosecutors approved the arrest of 811,102 people in 2004,
both increases of more than 7 percent over the prior year.\5\
Courts handled 644,248 criminal cases, an increase of 1.5
percent over 2003.\6\ Juvenile crime increased 19.1 percent
over 2003 and is one of the fastest growing categories of crime
in China.\7\ While officials published a few statistics
reflecting positive trends, such as a drop in some violent
crimes in 2004, leadership statements, public surveys ranking
security as a major concern and regional complaints about
increases in petty crime all point to a growing crime
problem.\8\
In early 2005, Chinese reports on two wrongful murder
convictions focused national attention on abuses in the
criminal justice system.\9\ The first case involved Nie Shubin,
who was executed in 1994 for rape and murder. In January 2005,
a suspect detained in another case confessed to the murder and
provided police with a detailed account of the crime scene. The
second case involved She Xianglin, who was convicted of
murdering his wife in 1994 after she disappeared. In March
2005, his wife suddenly returned to their village. Both cases
reportedly involved coerced confessions, questionable
investigative work, and interference by Party officials. In Mr.
She's case, an appeals court rejected the trial verdict four
times because of questionable evidence but eventually allowed
the conviction to stand after the trial court changed his death
sentence to 15 years imprisonment. As news of these cases
spread, reports of other wrongful convictions emerged.\10\
Together, the Nie and She cases elicited a strong reaction
in the Chinese news media and prompted public scrutiny of the
criminal justice system. Although the Chinese government
generally tightened information controls over the past year
[see Section III(e)--Freedom of Expression], it permitted and
in some cases encouraged public critiques of the criminal
justice system as the scandals unfolded. Xinhua and the
People's Daily noted that Mr. She's case had ``exposed some
holes in the judicial system'' and prompted a ``rethinking'' of
human rights protections.\11\ Chinese scholars and journalists,
invoking these and other wrongful conviction cases, published
detailed critiques on many problems in the criminal justice
system.\12\ As one commentator observed, ``as one case of
wrongful death sentence after another is exposed, we see
cursory, rushed investigations, confessions extorted by
torture, unreliable polygraph reports, maliciously manufactured
perjury and false evidence, suppression of evidence helpful to
the accused, and so on.'' \13\ The two cases, news of which
broke as senior officials were discussing death penalty reform,
also intensified public discussion of capital punishment. These
discussions offered new insights into China's criminal justice
system and shaped debate over criminal justice reforms.
Law enforcement officials continued to stress the need for
both greater efficiency and more accountability. Responding to
criticism that the wrongful conviction cases were in part the
product of poor investigative work, the Ministry of Public
Security (MPS) reportedly launched a nationwide campaign to
improve investigative capacity.\14\ China has significantly
fewer police officers per capita than the international
average,\15\ and some law enforcement agencies focused on
hiring personnel and deploying more officers on the street.\16\
Beijing established blacklists of underperforming districts to
encourage better policing.\17\ Senior Chinese officials also
publicized efforts to crack down on corruption and abuses in
the criminal justice system and stressed the need to balance
``strike hard'' efforts and the protection of suspect
rights.\18\ In December 2004, the UN Working Group on Arbitrary
Detention (UNWGAD) noted that official statements on the
importance of human rights represented a positive
development.\19\
Political Crimes
The Chinese government continues to imprison, detain, or
otherwise harass intellectuals, reporters, dissidents,
believers engaged in ``illegal'' religious activities,
unauthorized Internet publishers, and others for the peaceful
exercise of fundamental rights guaranteed under China's
Constitution and the Universal Declaration of Human Rights.
Although the Chinese government released a small number of
political prisoners, including Rebiya Kadeer, Huang Qi, and Xu
Guang, many Chinese citizens, including Yao Fuxin, Xiao
Yunliang, Su Zhimin, Gong Shengliang and other members of the
South China Church, Yang Jianli, Jigme Gyatso, Ngawang
Phuljung, Choeying Khedrub, Tohti Tunyaz, Jin Haike, Xu Wei,
Yang Zili, Zheng Houhai, Mao Hengfeng, and thousands of others
continued to serve long prison or re-education through labor
sentences for political offenses.\20\ In June 2005, the Chinese
government rejected a U.S. appeal for an accounting of
prisoners still detained for activities related to the Tiananmen
Square democracy protests.\21\ The government also launched a new
crackdown on dissent that resulted in a wave of political detentions
and prosecutions [see Section III(d)--Freedom of Religion and
Section III(e)--Freedom of Expression].\22\ In many cases,
police detained these and other individuals without formal
charge or judicial review. Arbitrary detentions intensified
during politically sensitive periods, such as the period
following the death of former Chinese Premier Zhao Ziyang in
January 2005, the annual meeting of the National People's
Congress (NPC) in March 2005, the anniversary of the June 4th
Tiananmen democracy protests, and the visit of UN High
Commissioner for Human Rights Louise Arbour in September
2005.\23\
Chinese authorities continue to apply vague criminal and
administrative provisions to detain citizens for political
offenses. In some cases, the government charges political
activists with ``endangering national security,''
``subversion,'' or ``inciting splittism.'' \24\ In other cases,
public security agencies sentence political offenders to re-
education through labor (RETL) or other forms of administrative
detention without trial.\25\ After its 2004 visit to China, the
UNWGAD noted that the Chinese government had made no
significant progress in reforming these mechanisms:
None of the recommendations that the working group
formulated in its earlier report have been followed. No
definition of the term ``endangering national
security'' in criminal law was adopted, no legislative
measures have been taken to make a clear-cut exemption
from criminal responsibility of those who peacefully
exercise their rights guaranteed in the Universal
Declaration of Human Rights, and no real judicial
control has been created over the procedure to commit
someone to re-education through labor.\26\
The Chinese government took a few positive steps on issues
related to political crimes. Late in 2004, the Chinese Foreign
Ministry announced that the government had formed a ``special
task force'' on ratification of the International Covenant on
Civil and Political Rights (ICCPR).\27\ In addition to the
prisoner releases noted above, in January 2005, the Chinese
government provided new information on paroles, sentence
reductions, and potential sentence reductions for a number of
Chinese political prisoners.\28\ In April 2005, the U.S. State
Department announced a Chinese government clarification that
there is not a stricter standard for evaluating sentence
reductions and parole for ``security'' crimes. Chinese
authorities also pledged to conduct a national review of cases
involving political acts that are no longer crimes under Chinese
law.\29\ China announced the last two steps shortly before the UN
Human Rights Commission met in Geneva in March 2005.
Arbitrary Detention\30\ in the Formal Criminal Process
Despite government statements on the importance of ending
unlawful extended detentions, law enforcement authorities
continue to hold criminal suspects for long periods without
formal charge or trial. Following a two-year campaign, courts
and law enforcement agencies claimed in early 2005 that they
had cleared all cases of ``illegal extended detention.'' \31\
Such claims are impossible to verify. Even if many such cases
have been cleared, Chinese authorities continue to manipulate
legal rules and loopholes to ``lawfully'' hold criminal
suspects for long periods without formal charge and trial.\32\
In one recent example, after investigating New York Times
researcher Zhao Yan for seven months on charges of leaking
``state secrets,'' police suddenly claimed to have found
``evidence'' of fraud against him. Law enforcement officials
had already invoked several legal exceptions to extend Zhao's
pretrial detention, and the legally permitted detention period
was about to expire.\33\ Under Chinese law, the new charge
permitted police to reset the pretrial detention clock to zero
and investigate Zhao for up to another seven months.\34\ In
practice, with no limit on the number of ``new crimes'' that
police can assert, suspects can be held in pretrial detention
for years. Chinese criminal law experts suggest that such
provisions are often abused and that abuses are not limited to
``sensitive'' cases.\35\
Chinese law does not meet minimal international standards
for prompt judicial review of criminal detention and arrest.
Under the ICCPR, anyone arrested or detained on a criminal
charge must be brought before a judge or judicial officer
promptly for review of the lawfulness of his detention or
arrest.\36\ In December 2004, the UNWGAD found that China's
Criminal Procedure Law (CPL) and related regulations on
pretrial detention fail to meet this basic standard because (1)
Chinese suspects continue to be held for too long without
judicial review; (2) procurators, who review arrest decisions,
only examine case files and do not hold a hearing; and (3) a
procurator cannot be considered an independent judicial officer
under applicable international standards.\37\
Administrative Detention
The Chinese government continues to punish large numbers of
offenses administratively without effective judicial review.
Public security agencies reported that they punished 5.3
million ``public order'' offenses in 2004, nearly eight times
the number of criminal cases handled by courts.\38\ ``Public
order'' offenses include traffic offenses, public disturbances,
prostitution, drug use, and other ``minor crimes'' that the
Chinese government typically sanctions with administrative
penalties rather than formal criminal sentences.\39\ In some
instances, public security agencies handle cases
administratively because they do not have enough evidence for a
formal prosecution,\40\ or because it is a convenient method
for detaining political offenders.\41\ Administrative penalties
can range from a disciplinary warning or fine to detention in a
RETL center for up to three years, with the possibility of a
one-year extension.\42\ Forms of administrative detention
include short-term detention under China's Public Order
Administration Punishment Regulations, RETL, forced psychiatric
commitment, ``custody and education'' of prostitutes and their
clients, forced drug detoxification, work study schools, and
detention imposed on corrupt officials under Party rules.\43\
Although many public order cases probably do not result in a
detention, at least 250,000 to 300,000 individuals are
currently detained in approximately 300 centers in the RETL
system alone.\44\
Public security agencies administer RETL and other forms of
administrative punishment without effective judicial review or
the minimal protections offered defendants in China's formal
criminal justice system.\45\ The Chinese government argues that
administrative detention decisions are subject to judicial
review under China's Administrative Litigation Law (ALL), but
the UNWGAD concluded that ALL review is ``in light of what
happens in reality, of very
little value'' and that ``no real judicial control has been
created over the procedure to commit someone to re-education
through labor.'' \46\ In its December 2004 report, the UNWGAD
found RETL to be a violation of the ICCPR and applicable
international standards that require prompt judicial review of
the lawfulness of detentions. The UNWGAD report concluded that
the Chinese government had made no significant progress in
reforming the system over the past seven years.\47\ It also
noted that RETL violates China's own domestic law, which
requires that all deprivations of freedom be authorized by
national law, not administrative regulations.\48\
Although the Chinese government is in the process of
reforming the administrative punishment system, it is unlikely
to be abolished. In August 2005, the NPC Standing Committee
(NPCSC) passed a new Public Order Administration Punishment Law
to replace a corresponding set of regulations.\49\ The new law,
which becomes effective in March 2006, contains specific
statements on the protection of human rights concerns on paper,
establishes a limit of 20 days detention for multiple public
order offenses (as opposed to the 30 days public security
officials reportedly requested), and prohibits torture and the
collection of evidence through illegal means.\50\ The final
version of the law, however, maintains public security as the
entity that adjudicates and administers punishments for public
order violations within its scope, sets a maximum interrogation
period of 24 hours (rather than the 12 hours proposed in an
earlier draft), does not provide the accused with the right to
a hearing in detention cases or the right to legal
representation, and creates new categories of offenses
including ``inciting or plotting illegal assemblies, marches,
or demonstrations.''
Pressure to reform the RETL system is also building,
particularly in the NPC.\51\ In the fall of 2004, China's
Justice Minister described government efforts to make RETL more
humane, but emphasized that the foundations of the current
system would remain in place.\52\ The government is also
reportedly considering a new ``Law on the Correction of
Unlawful Acts'' that would provide a basis in national law for
RETL.\53\ The draft law reportedly enhances the rights of RETL
detainees by setting a maximum sentence of 18 months;
permitting defendants to hire a lawyer, request a hearing, and
appeal sentences handed down by public security in RETL cases;
and making detention centers more open and humane.\54\ While
the reforms could be a positive step, some observers have noted
that the MPS is resisting reform efforts, and that given the
rise in crime and the government's reliance on RETL to maintain
public order and punish political offenders, the reforms may
have little impact on RETL in practice.\55\
In addition to RETL and short-term detention under the
public order administration provisions, law enforcement
officials have the power to forcibly commit individuals to
psychiatric facilities.\56\ The MPS manages a network of at
least 30 ankang, or special psychiatric institutions, and in
some cases uses these institutions to hold repeat petitioners
or political offenders, such as human rights activist Wang
Wanxing, along with genuine mental patients.\57\ In 2004, the
UNWGAD found that the government's system of confining mentally
ill persons is a ``form of deprivation of liberty and lacks the
necessary safeguards against arbitrariness and abuse.'' \58\
Treatment in these institutions is sometimes brutal.\59\
Under administrative regulations, police may also forcibly
commit drug users to rehabilitation centers for up to one
year.\60\ Repeat offenders may be sentenced to RETL terms.\61\
As of 2003, China maintained a network of at least 583 forced
rehabilitation centers and 151 detention centers for drug
users.\62\ Chinese sources report that in 2004, 273,000 addicts
received treatment at forced rehabilitation centers, while
68,000 were ``treated'' at RETL centers.\63\ Drug
rehabilitation centers have been associated with numerous
problems and abuses, including a relapse rate of over 90
percent, excessive fee collection from detainees, understaffing
due to a lack of funding, and violence against detainees.\64\
In June 2005, for example, a man was allegedly beaten to death
in a Guangdong detoxification center.\65\ According to a former
detainee, the center had a reputation for irregular fatalities
and had been told to improve its record. Human rights activists
allege that such abuses are common.\66\
Before 2003, civil affairs and public security agencies
also had the power to administratively detain and repatriate
indigents, migrants, and other individuals without proper
residence permits under China's custody and repatriation
system.\67\ After a detainee died in custody in 2003, the State
Council abolished this system and replaced it with a system of
voluntary aid centers.\68\ A surge of indigents and beggars on
the streets of some large Chinese cities suggests that the new
system has been implemented in some areas,\69\ but a recent
scandal in Jiangxi province indicates that some smaller cities
still practice custody and repatriation.\70\ In the Jiangxi
case, county officials rounded up indigents and left them in a
remote area in the middle of winter. The officials told a
reporter that they had not established an aid center as
required because they lacked funds and were continuing to
detain and repatriate vagrants, a practice they claimed was
common in many counties.\71\
Torture and Abuse in Custody
Although torture is illegal in China, law enforcement
torture and abuse remains common. Over the past year, Western
news media and NGOs continued to report the widespread use of
torture to coerce confessions and to punish detainees.\72\
Prompted in part by public outrage over the Nie Shubin and She
Xianglin wrongful conviction cases, Chinese news media also
published reports indicating that torture and coerced
confessions remain widespread,\73\ highlighting individual
cases of torture and abuse,\74\ and examining the roots of the
torture problem.\75\ Forms of torture and abuse cited in
Western and Chinese reports include beating, electric shock,
and painful shackling of the limbs.
Chinese analysts blame the torture problem on a number of
social, institutional, and legal factors. Social and
institutional factors include a lack of legal consciousness,
poor training, and weak forensic skills on the part of
investigative personnel (problems that lead to an over-reliance
on confessions). Prevailing social attitudes towards criminal
suspects, a presumption of guilt at all stages of the criminal
process, pressure from leaders and society to demonstrate
progress in fighting crime and secure convictions in major
cases, and the practice of tying law enforcement salaries and
promotions in part to case-breaking rates are other factors
that contribute to the problem.\76\ Among the legal factors
cited are the absence of lawyers at interrogations, a general
failure to prosecute torture cases, the lack of a legal
presumption of innocence and right to remain silent, and the
lack of a rule requiring the exclusion of illegally gathered
evidence.\77\
Law enforcement agencies claim to be addressing the torture
issue through well-publicized crackdowns, enhanced
investigative training, and better procuratorial
supervision.\78\ Procuratorates nationwide reported the
prosecution of 1,924 officials for torture, illegal detention,
and other violations of human rights between July 2004 and July
2005.\79\ In Jiangxi province, an experimental program that
requires prosecutors to conduct face-to-face interviews of
criminal suspects during the arrest review process reportedly
uncovered several torture cases.\80\ In May 2005, the Supreme
People's Procuratorate (SPP) publicly claimed that it would
make ending torture and coerced confessions a priority in 2005
and announced a new policy of encouraging more vigorous
investigation of torture allegations and prohibiting the use of
illegally obtained
evidence.\81\ The MPS announced a requirement that police
chiefs personally hear petitions on law enforcement abuse.\82\
Finally, in August 2005, UN Special Rapporteur on Torture
Manfred Nowak announced that he had reached agreement with the
Chinese government for a visit to China in November 2005.\83\
Recent reports suggest that the controversy surrounding the
Nie and She cases may also be creating momentum for modest
legal
reforms. In April 2005, Sichuan province prohibited the use of
evidence acquired through illegal means and introduced a
requirement that interrogations in ``major cases'' be taped.
Under the new rule, courts must exclude coerced statements and
confessions unless police provide a reasonable explanation for
the alleged coercion or agree to investigate allegations of
abuse.\84\ In May 2005, Chinese news media reported that three
district public security bureaus were taking part in an
experimental program under which criminal suspects may request
either the presence of a lawyer during interrogation or the
taping of the interrogation.\85\
The wrongful conviction cases have also helped forge a
consensus among scholars and officials for making the
prevention of torture a priority in upcoming amendments to
China's CPL.\86\ The NPC Legislative Affairs Commission is
currently researching CPL amendment issues.\87\ Consideration
of a draft amendment proposal is tentatively scheduled for
2006, with final passage slated for 2007.\88\ Several of the
local experiments described above correspond to proposed
amendments to the CPL, suggesting that the government is
testing reforms at a local level before implementing them
nationwide.\89\ Some Chinese legal experts stress that to
prevent abuse in practice, reforms should include enhanced
rights for defense lawyers, a right to remain silent, an
evidence exclusion rule that would bar all illegally obtained
evidence (including evidence derived from coerced confessions)
from criminal trials, and more vigorous prosecution of
officials who resort to torture.\90\ Reports of some public
security resistance to the local experiments on lawyer access
during interrogations and comments in the media indicating that
scholarly expectations are too ``idealistic'' suggest that law
enforcement agencies may resist broad rights enhancement for
suspects and defendants.\91\
Access to Counsel and Right to Present a Defense
Most Chinese defendants go to trial without a lawyer.
Chinese law grants criminal defendants the right to hire an
attorney, but guarantees pro bono legal defense only if the
defendant is a minor, faces a possible death sentence, or is
blind, deaf, or mute.\92\ In other cases in which defendants
cannot afford legal representation, courts may appoint defense
counsel or the defendant may apply for legal aid, but the law
does not guarantee free legal representation.\93\ Legal aid
resources for all types of cases expanded in 2004.\94\ Lawyers
represent criminal defendants in at most about 30 percent of
cases, however, and the rate of representation continues to
drop.\95\ Domestic sources cite fear of law enforcement
retribution and the lack of legal protections for lawyers
(along with low fees) as major factors in the low rate of
representation.\96\
Even when criminal defendants are able to find lawyers,
they often have difficulty meeting with them. Under Chinese
law,
suspects have a right to meet with their lawyers after police
interrogate them or from the first day of their formal
detention.\97\ Nevertheless, even after the first
interrogation, police often manipulate legal exceptions to deny
lawyers access to their clients or otherwise obstruct or
encumber such access.\98\ For example, Sichuan public security
officials on several occasions denied requests by detained
American businessman David Ji to meet with his attorneys,
arguing that such meetings were ``inappropriate'' or
``inconsistent with Chinese law.'' \99\ Only about 14.5 percent
of criminal suspects in Beijing, one of China's most legally
advanced locales, met with an attorney during the first 48
hours of detention.\100\ Although public security officials
attribute the small number of lawyer meetings to low legal
consciousness and economic difficulties on the part of
suspects, a Beijing Youth Daily article cited police suspicion
of lawyers as the major reason.\101\
Other obstacles make it difficult for lawyers to build and
present an adequate defense. Legal aid organizations, which are
publicly funded and supply defense lawyers in a significant
portion of criminal cases, risk jeopardizing their funding if
they offend local officials.\102\ In practice, defense lawyers
cannot start building a case until the official investigation
ends and a case is transferred to the procuratorate.\103\ Even
then, police and procuratorates often deny lawyers access to
government case files and information, despite provisions in
the CPL that are intended to guarantee access to those
materials.\104\ Defense lawyers must obtain permission from
procurators and courts to interview witnesses and crime
victims.\105\ In addition, fewer than 5 percent of witnesses in
criminal cases appear in court.\106\ One source discussed in
detail how law enforcement officials often intimidate or detain
defense witnesses or witnesses who change their testimony at
trial to the detriment of law enforcement.\107\ The inability
of defense lawyers to cross-examine witnesses undermines their
ability to represent their clients.\108\ One Chinese scholar
involved in the discussion of upcoming amendments to the CPL
suggests that a provision requiring witnesses to appear in
court may be written into the law.\109\
Finally, local authorities sometimes harass and even
prosecute defense lawyers who work on sensitive cases or defend
their clients too vigorously. In February 2005, for example,
Shanghai authorities suspended the law license of defense
lawyer Guo Guoting and later placed him under temporary house
arrest.\110\ As a result, Guo was unable to appear in court on
behalf of imprisoned journalist Shi Tao in late April. Law
enforcement officials sometimes intimidate defense lawyers by
charging or threatening to charge them with ``evidence
fabrication'' and other crimes.\111\ Most such charges prove to
be groundless. According to one prominent Beijing lawyer, over
90 percent of the more than 100 lawyers accused of violating
Article 306 of the PRC Criminal Law, a provision on evidence
fabrication, have been cleared of wrongdoing.\112\ Other
statistics indicate that nearly 80 percent of the 500 lawyers
detained, accused, or punished for all reasons between 1997 and
2002 were eventually found innocent of any wrongdoing.\113\
Such groundless charges put attorneys on the defensive and have
a chilling effect on criminal defense work.\114\
Lawyers in China indicate that their work environment has
not improved significantly. In August 2004, one Chinese
publication reported that the Beijing Justice Bureau canceled a
multi-year study on the work environment for Chinese defense
attorneys in 2002 after results from the initial 600 responses
revealed major problems.\115\ Lawyers interviewed for the
article expressed doubt that the environment for defense
attorneys would improve much in the near future. Chinese legal
experts complain that the relative power of the prosecution and
defense is too unbalanced, and that criminal courts rarely give
much consideration to defense arguments.\116\
Some Chinese authorities are experimenting with local
reforms to improve lawyer access to their clients and allow
them to be present during interrogations.\117\ Enhanced lawyer
involvement at the pre-trial stage could serve as a meaningful
check on torture. More lawyer involvement could also improve an
innocent suspect's chance of exoneration, since statistics
suggest that Chinese suspects have a better chance of avoiding
criminal sanction during the investigation stage than during
the trial stage of the criminal process.\118\ The All-China
Lawyers Association (ACLA) has made several recommendations to
strengthen defense investigation rights and provide remedies
for defense lawyers who encounter official obstacles. ACLA also
recommended creating judicial checks on prosecutorial
discretion in charging lawyers with evidence fabrication and
other crimes, providing lawyers with limited immunity from
prosecution, and delegating the responsibility for disciplining
lawyers to lawyers associations.\119\ Some of these
recommendations are reportedly under consideration in upcoming
amendments to the Lawyers Law and CPL.\120\
Fairness of Criminal Trials and Appeals
Trials in China nearly always result in convictions. The
conviction rate for first-instance criminal cases was over 99
percent in 2004.\121\ Chinese defendants exercised their right
to appeal convictions in only about 15 percent of criminal
cases, and those who did appeal faced limited prospects for
reversal.\122\ In total, appeals courts changed judgments in
about 13.2 percent of cases they reviewed (roughly 2.1 percent
of all criminal cases adjudicated in 2004).\123\ Because many
changed judgments probably involve sentence reductions, the
percentage of convictions actually overturned on appeal is
likely even lower.\124\ In addition, under Chinese law
prosecutors have the right to appeal acquittals or request
``adjudication supervision'' from higher courts until they
obtain a guilty verdict.\125\ In practice, prosecutors have an
incentive to do so, since acquittals may result in official
liability for wrongful detention.\126\ Prosecutors may request
such ``adjudication supervision'' as a matter of right.
Defendants may only do so with the consent of the court,
however, as imprisoned American businessman Jude Shao found
when the Supreme People's Court (SPC) denied a petition for
review of new evidence in his case.\127\
Appeals courts are reluctant to overturn convictions, even
when they have misgivings about evidence of guilt. In some
cases, appeals courts decide instead to give relatively light
sentences or, in the case of a capital crime, suspend a death
sentence to ``leave room for unforeseen circumstances.'' \128\
In other questionable cases, appeals courts abuse a procedural
provision that allows them to send cases back to first instance
courts for retrial.\129\ In part because they face potential
liability and professional sanction for incorrect decisions,
however, trial courts have built-in incentives not to change
verdicts.\130\ As a result, some cases based on questionable or
incomplete evidence bounce back and forth between courts,
sometimes for years, until prosecutors can dig up more
evidence, the appeals court relents, or courts and prosecutors
reach some compromise such as a reduced sentence.\131\ Chinese
commentators have noted that multiple retrials can lead to
wrongful convictions and advocate restricting the number of
times a case can be retried or the number of times either
prosecutors or defendants can request ``adjudication
supervision.'' \132\ Court sources indicate that reform of the
retrial system is currently under consideration.\133\
Senior court officials and Party political-legal committees
continue to influence judicial decision-making, particularly in
sensitive or important criminal cases. In the Nie Shubin
wrongful execution case, for example, the original trial judge
tried to deflect responsibility for the apparent wrongful
conviction by telling Chinese
reporters he just follows orders.\134\ Domestic accounts of
other wrongful convictions and sensitive cases highlight
continuing Party interference.\135\
Capital Punishment
Chinese criminal law includes approximately 68 capital
offenses, the majority of which are non-violent crimes such as
bribery and embezzlement.\136\ The Chinese government has
reportedly established an ``execute fewer, execute cautiously''
policy, and at least one Chinese source suggests that the
number of executions has dropped in recent years.\137\ The
government, however, publishes no official statistics on the
number of executions, which it considers a state secret.\138\
Several Chinese sources have hinted that the annual number of
executions in China is in the thousands.\139\
The Chinese government appears willing to reform death
penalty practices gradually. An ongoing domestic debate over
the death penalty and its scope intensified over the past year,
particularly after Chinese news media publicized accounts of
wrongful conviction cases.\140\ Scholars and commentators
expressed concern about wrongful executions and focused on how
to prevent them.\141\ Chinese sources cite broad popular
support for the death penalty and the need for a deterrent
against crime as justifications for maintaining it.\142\ The
government has indicated that while it will maintain capital
punishment for the foreseeable future, it will work to ensure
fair application of the death penalty by refining death penalty
review procedures and gradually reducing application of the
death penalty in favor of long-term imprisonment.\143\ Some
reform advocates suggest that the government could start this
process by eliminating capital punishment for economic crimes,
or by eliminating the immediate execution of death sentences in
favor of suspended death sentences.\144\
In March 2005, SPC President Xiao Yang declared that the
SPC will take back the power of reviewing all death penalty
decisions next year.\145\ Central authorities have called for a
review of the necessary legislative changes in October 2005,
with implementation of the reform tentatively set for sometime
in 2006.\146\ The SPC is in the process of establishing three
new criminal tribunals and transferring hundreds of judges to
Beijing to handle the increased caseload that will result from
the reform.\147\ Emboldened by public outrage over the Nie and
She cases, commentators have called for accelerated
implementation of the reform, open hearings during death
penalty reviews, and a moratorium on implementation of current
death sentences until the SPC can review all current
cases.\148\ Chinese experts view the return of this power to
the SPC as an important step in preventing wrongful executions.
While the SPC changed judgments in nearly one-third of the 300
death sentences it reviewed in 2003, provincial high courts
changed judgments in only one percent of the death sentences
they reviewed.\149\
Several new reports on the use of organs removed from
executed prisoners emerged over the past year. One U.S.-based
NGO reported that hospitals in Guangzhou, Xucheng, and
Zhengzhou continue to harvest organs from executed prisoners
and sell them for profit.\150\ Several articles in China's
domestic news media noted the demand for transplants and
highlighted a domestic debate over whether or not condemned
prisoners should be permitted to donate their organs,
suggesting that the use of prisoner organs is an issue of
concern to some Chinese.\151\ One legal expert argued that
organ donations by prisoners, even if voluntary on their face,
should be prohibited because there is no way to rule out
coercion by criminal justice officials and because the practice
could encourage more executions.\152\ In June 2005, the Chinese
government announced that it would issue a national regulation
on organ transplants that would ban trading in human organs and
limit the number of hospitals that are authorized to perform
transplants.\153\ The government did not make clear whether the
new regulations would
address the use of organs removed from executed prisoners.
Additional Reform Initiatives and Criminal Justice Exchanges
In addition to the reforms noted above, the Chinese
government reported several criminal justice reform initiatives
over the past year. In response to the rise in juvenile crime,
many reports focused on reform of the juvenile justice
system.\154\ Ministry of Justice officials claimed to be
engaged in an ongoing effort to improve prison management and
conditions.\155\ A new directive from the NPCSC requires expert
witnesses to be independent agents, not employees of courts or
other government departments.\156\ The SPP continued a
rectification campaign aimed at exposing corruption in the
sentencing and parole process.\157\ Finally, in addition to
draft amendments to the Criminal Procedure Law, scholars and
officials discussed amendments to several laws that affect the
criminal process, including the Lawyers Law, the State
Compensation Law, and the Organic Law of the People's
Courts.\158\
Prosecutors and courts also experimented with new citizen
supervision mechanisms. Procuratorates nationwide reported
imple-
menting a new system of citizen ombudsmen, or people's
supervisors. Under applicable regulations passed in 2004,
people's supervisors review cases when procuratorates dismiss a
case or decide not to prosecute, or when criminal suspects
disagree with a procurator's formal arrest decision. People's
supervisors may appeal to higher-level procuratorates when they
disagree with a procuratorial decision.\159\ According to the
SPP, by the end of 2004, procuratorates had more than 18,962
supervisors on staff. The supervisors have reportedly reviewed
a total of 3,341 cases, appealing prosecutor decisions in 152
cases.\160\ In addition, new regulations to re-establish a
system of people's assessors in the courts became effective on
May 1, 2005.\161\ People's assessors are lay judges who sit on
a collegial panel of three judges and in theory have an equal
vote in deciding the outcome of selected criminal, civil, and
administrative cases.\162\ As of April 2005, a total of 2,900
courts across China reportedly had selected a pool of 26,917
people's assessors.\163\
Chinese scholars and officials continued to engage foreign
governments and legal experts on a range of criminal justice
issues over the past year. Chinese law enforcement agencies
expressed a growing interest in cooperating with other
countries to combat transnational crime and expanded
cooperation with U.S. law enforcement agencies on money
laundering, drug trafficking, and other issues.\164\ Numerous
international conferences and legal exchanges with Western
NGOs, judges, and legal experts took place, including programs
on pre-trial discovery, defense attorneys, evidence exclusion,
criminal trials and procedure, pleas and simplified prosecution
procedures, bail, sentencing, parole, capital punishment,
prison reform, and other subjects.\165\ Participants in these
programs encouraged more such exchanges.\166\
Finally, the Chinese government continued to engage the
international human rights community on issues related to the
criminal justice system. In addition to permitting a visit by
representatives of the UN Working Group on Arbitrary Detention
in September 2004, the Chinese government agreed to host the UN
Special Rapporteur on Torture in November 2005.\167\ In July
2005, the International Committee of the Red Cross established
a regional office in Beijing after signing an agreement with
the Chinese government.\168\ In August 2005, China hosted a
visit by the UN High Commissioner on Human Rights.\169\ During
the visit, the High Commissioner and the Chinese government
signed a Memorandum of Understanding aimed at facilitating
China's implementation of the ICCPR,\170\ although that
achievement was overshadowed by a contemporaneous spate of
detentions.\171\ Before the UN Human Rights Commission met in
Geneva in March 2005, the U.S. government noted China's
commitment to open the ICRC office and receive these
delegations as signs of progress in its human rights
policies.\172\
III(c) Protection of Internationally Recognized Labor Rights
FINDINGS
<bullet> The Chinese government does not recognize the
core labor rights of freedom of association and
collective bargaining. The government prohibits
independent labor unions and punishes workers who
attempt to establish them.
<bullet> Wage and pension arrears are among the most
important problems that Chinese workers face. Despite
new government regulations seeking to address the
problem of unpaid wages and pensions, Chinese workers
continue to struggle to collect wages and benefits
because the relevant agencies do not enforce the
regulations.
<bullet> Workplace health and safety conditions are
poor for millions of Chinese workers, especially those
in the coal mining industry. China's state-run news
media have reported, with some exceptions, workplace
accidents more openly and promptly than in previous
years, even when workers have been killed or
injured.
<bullet> Forced labor is an integral part of the
Chinese administrative detention system, and child
labor remains a significant problem in China, despite
being prohibited by law.
Conditions for China's Workers
The growing number of labor protests during 2004 and 2005
is one indication that many Chinese workers are frustrated by
the lack of government action to enforce labor regulations and
rules.\1\ Some workers protested because they did not receive
the wages owed them, others because corrupt officials stole
their pension funds.\2\ The government often arrests workers
who lead peaceful labor protests and detains them without
permitting access to a lawyer.\3\
Chinese central, provincial, and local governments adopted
regulations during the past year to address the growing
problems of wage arrears and unsafe working conditions.\4\
These new regulations lack enforcement mechanisms, and most
workers lack the money and legal resources to enforce their
rights to a minimum wage, overtime pay, or safe working
conditions.\5\ According to the Procuratorate Daily, workers
are vulnerable because they are not aware of their rights.\6\
The All-China Federation of Trade Unions (ACFTU), China's sole
legal union, with few exceptions, rarely helps workers resolve
workplace problems.\7\ Chinese news media, however, have
reported on the problems that workers have in enforcing their
rights.\8\
Some Chinese legislators, academic experts, and labor
leaders advocate labor law reform in China. For example, a
National People's Congress delegate called for a major
revamping of outdated labor laws that he argued are still tied
to an economy dominated by state-owned enterprises and no
longer relevant in China's developing market economy.\9\ A
similar opinion piece in the China Daily, also advocating labor
law reform, stated the case for more protections for workers,
particularly migrants:
There are more than 100 million migrant workers in
China's cities. Scattered throughout various sectors,
they work long hours and earn poor salaries. Some of
them, such as construction workers, live in shabby
temporary housing. Worse, their interests are not
adequately cared for. Defaults on their payment are
common.\10\
Deaths from accidents in Chinese coal mines have compelled
central, provincial, and local government officials to make
public statements in support of coal miners.\11\ In practice,
however, the government has been ineffective in their efforts
to improve unsafe working conditions in most mines.\12\ Chinese
labor laws and regulations do not grant miners the right to
refuse to work when conditions are dangerous. For example,
before a 2005 mine disaster in Shaanxi province, managers told
the miners to return to work after they tried to leave the mine
because of dangerous conditions. The miners faced a fine of 100
yuan if they refused to return to work.\13\
Internationally Recognized Labor Standards
The Chinese government has ratified the International Labor
Organization's (ILO) Declaration on Fundamental Principles and
Rights at Work (the ``1998 Declaration'') but has not fulfilled
commitments under the Declaration. The ILO's Fundamental
Principles apply to all members and are a basic set of rights
that
require governments to allow workers to associate, to bargain
collectively, to be free from forced labor, to be free from
discrimination in employment, and to take steps to eliminate
the worst forms of child labor.\14\ China has ratified three of
the eight ILO core conventions, which provide guidance on the
full scope of the rights and principles in the 1998
Declaration, including two on child labor and one on equal
remuneration for men and women.\15\ A member of the ILO since
its founding,\16\ China has been a member of the ILO Governing
Board since June 2002.\17\
The Chinese government has adopted a number of regulations
that protect such worker rights as the right to receive a wage
for work performed but rejects the basic internationally
recognized rights of Chinese workers to form independent unions
and bargain collectively. The International Covenant on
Economic, Social, and Cultural Rights (ICESCR), which China
ratified in 2002, guarantees the rights of workers to organize
independent trade unions. At the time of ratification, the
Chinese government took a reservation to ICESCR provisions that
conflict with the Chinese Constitution and domestic labor
laws.\18\
Despite being a member of the ILO's Governing Board, the
Chinese government has avoided discussions with the
international labor community on Chinese workers' rights. For
example, in December 2004, government officials cancelled a
conference involving representatives of the Organization for
Economic Cooperation and Development (OECD) that sought to
review socially responsible investment in China and the role of
longstanding OECD investment guidelines for multinational
companies. International trade unionists criticized the
cancellation and noted that it reflected the Chinese
government's lack of interest in discussing the application of
international labor standards to Chinese workers.\19\
Freedom of Association and Collective Bargaining
The Chinese government recognizes the All-China Federation
of Trade Unions (ACFTU) as the sole representative of Chinese
workers.\20\ The ACFTU claims 120 million members, but ACFTU
members cannot exercise internationally recognized labor
rights. The Communist Party controls the ACFTU; Wang Zhaoguo,
the Federation's chairman, is a member of the Party
Politburo.\21\ The Party's influence prevents the ACFTU from
assisting workers in any way that violates Party
guidelines.\22\ Moreover, Chinese workers are not allowed to
freely elect their ACFTU representatives. \23\
The National People's Congress eliminated the right to
strike in 1982 when it revised the Chinese Constitution,\24\
yet strikes and labor protests continue in China. Strike
leaders are subject to arrest by local public security
authorities.\25\ Local governments usually tolerate small-scale
demonstrations and sit-ins, but commonly arrest and imprison
the leaders of large protest marches.\26\ ACFTU representatives
generally do not assist workers during demonstrations or
strikes. In one case, a group of migrant workers, who were
fired after a conflict with an automobile manufacturer over
wages and benefits, sued in court to force ACFTU action. The
case was referred to an arbitration committee and is still
pending.\27\
Faced with declining membership, the ACFTU has begun to
look for new sources of income. By 1999, the union's large
bureaucracy was dependent on dues from approximately 87 million
members, a decline of some 100 million workers from its
membership peak.\28\ The ACFTU has recently begun looking to
workers in foreign-owned enterprises as a new source of dues,
portraying itself as an organization that wants to assist
workers employed in foreign-owned facilities.\29\ Faced with
pressure from the ACFTU and other government officials, one
foreign-owned enterprise agreed to permit the ACFTU to
represent its workers in one city.\30\ In another case, a
foreign-owned enterprise initially resisted ACFTU demands,
offering instead to recognize the union if the workers
requested it.\31\
Some local ACFTU branches are attempting to help workers,
within the confines of Party and government policy. For
example, the Tianjin Trade Union Council has developed a system
to aid workers who have employment problems, to monitor safety
problems and accidents, and to deal with employee-employer
disputes. The union uses computers to track accidents and
conduct prompt investigations to preserve evidence and witness
testimony. The union also offers legal aid, represents unpaid
workers, and provides low cost clothing, food, and cash
subsidies for impoverished workers. The Shenzhen Federation of
Trade Unions also offers legal aid for workers in cases of
unlawful discharge, occupational injuries, and compensation
arrears.\32\
Wages and Working Hours
Several provinces raised the minimum wage over the past
year. For example, in December 2004, Guangdong province
increased the minimum wage in seven categories by an average of
8.6 percent. Each region within the province sets its own wage
category rates, which range from 352 yuan ($42.60) to 684 yuan
($82.64) per week.\33\ But Chinese employees now have to pay
the social security fee, which the employer once paid. With the
social security fee subtracted, the average raise is only 3.73
percent.\34\
One important cause of the increase in labor disputes and
protests in China in recent years is underpayment of wages.\35\
Despite the minimum wage regulations, many employers ignore
mandated wage rates.\36\ Auditors hired by foreign purchasers
often find that factory managers in China falsify time cards
and payroll records to avoid paying the legal minimums.
Auditors have also concluded that factory managers are becoming
more sophisticated in disguising such misrepresentations. Some
company auditors estimate that managers at more than half the
factories they visit in China alter at least some of their
payroll records.\37\
Chinese law mandates time and a half for work over 40 hours
per week and limits overtime to 36 hours per month.\38\
According to a trade union official in Jiangsu province,
companies should negotiate with the union about overtime, but
few companies follow the relevant regulations.\39\ A recent
China Social Security Center survey showed that, of 1,218
workers surveyed in Beijing, 65.6 percent worked more than
eight hours per day, and 20 percent worked more than 10 hours
per day. Although many workers think that working long hours
has a negative effect on their health, their base pay is so low
that most are willing to work overtime for extra pay.\40\
Wage and Pension Arrears
Unpaid wages and pensions remain serious problems for
Chinese workers, and the resulting labor unrest is generating
government concern.\41\ When the State Council issued a
regulation in late 2004 to resolve the wage arrears problem,
Cao Kangtai, the Director of the Legal Affairs Office, said
that ``the regulation was designed to maintain social
stability. . . .'' \42\ A march by 1,000 workers in Shenzhen
against the loss of severance pay resulted in blocked roads,
traffic jams, and violence when security personnel were
deployed to disperse the workers.\43\
Other workers have taken more drastic action. In November
2004 in Shenzhen, factory workers who had not been paid in over
two months took the owners hostage.\44\ In February 2005,
Shenyang construction workers climbed to the top of a building
and threatened to jump if the company did not pay their back
wages.\45\ Government response to such worker action was swift
and severe: the workers were arrested, and some received prison
sentences.\46\
Some senior government officials have taken action to
resolve unpaid wages to workers. In mid-2004, for example, a
member of the Chinese People's Political Consultative
Conference (CPPCC) informed Premier Wen Jiabao that the Jixi
city government in Heilongjiang province had failed to pay
millions of yuan to a local construction company. The arrears
caused the company to default on wages owed to hundreds of
migrant workers. Premier Wen ordered a State Council
investigation that ultimately resolved the case. Premier Wen
has intervened in similar cases elsewhere to restore unpaid
wages.\47\
The construction industry has one of the worst records on
unpaid wages of all Chinese industries and has received the
most attention from the government.\48\ According to the
Ministry of Construction, construction firms owed workers some
175.588 billion yuan ($21.214 billion) at the end of 2003. In
November 2003, the State Council General Office issued
guidelines to settle delayed payments for construction
workers.\49\ In August 2004, Vice Premier Zeng Peiyan raised
the issue of unpaid wages in the construction sector, and
called for strengthened enforcement of measures that would
protect the rights of workers.\50\
Central, provincial, and local governments sign contracts
for construction projects, but frequently fail to pay
contractors promptly upon completion of work. As a result,
contractors often cannot pay their workers. As of August 2004,
Chinese government entities owed over 64.28 billion yuan ($7.76
billion) for construction projects.\51\ Vice Premier Zeng
criticized some local governments for building lavish projects
to enhance their status and pressed these governments to pay
their debts.\52\
Central and local governments took steps in 2004 and 2005
to help migrant workers obtain unpaid wages. In late 2004 in
Guizhou province, for example, the local federation of trade
unions established a hotline for migrants and helped them
recover unpaid wages.\53\ The central government also claimed
that it had helped migrant workers recover more than 33 billion
yuan ($3.99 billion), some 99 percent of wages owed to migrant
workers.\54\ Some observers viewed this claim with skepticism,
given ACFTU estimates that migrant workers are owed unpaid back
wages totaling 100 billion yuan.\55\ Some private attorneys in
China have begun to accept unpaid wage cases. Such cases are
often costly, however, because the courts and the labor
arbitration boards may charge 1,000 yuan ($120) or more to
investigate and adjudicate cases. Few workers can afford such
fees, but legal aid organizations, NGOs, and in some cases the
attorneys themselves pay part of the costs.\56\
Workplace Health and Safety
The Chinese government has begun to pay attention to the
country's poor national safety record, especially in the
construction industry, where 1,144 accidents with 1,342 deaths
occurred in 2004, down 11.46 percent and 13.12 percent,
respectively, from 2003.\57\ Despite this positive trend in one
sector, China has averaged 1 million industrial accidents per
year since 2001, according to the State Administration of Work
Safety (SAWS). About 140,000 workers died from industrial
accidents in 2004, compared with 79,422 deaths in 1991. One
Chinese scholar blamed the increase in industrial accidents on
China's booming economy and a weak foundation in safety and
health programs.\58\
An encouraging change in workplace health and safety in
China is the swiftness with which Chinese news media report
serious workplace accidents, particularly coal mine disasters.
In the past, local officials and mine owners commonly concealed
news of coal mine explosions.\59\ The increased use of the
Internet has made it difficult to hide these disasters from the
public.\60\ A public outcry over two coal mine disasters in
2004 and 2005, one at the Chenjiashan mine in Shaanxi province
that killed 166 miners and a second at the Sunjiawan coal mine
in Liaoning province that claimed 214 lives, compelled the
central government to take a direct interest in improving
safety conditions.\61\
Chinese government officials are considering several
measures to improve workplace safety. One project to be jointly
implemented by ACFTU and SAWS involves appointing 100,000
senior coal miners as safety supervisors. These supervisors
would have the power to stop work if they felt that workers'
lives were at risk.\62\ A British coal mine expert stressed
during a Commission roundtable that safety supervisors and
inspectors are vital to coal mine safety. He also pointed out
that training mine inspectors is relatively inexpensive.
Another British expert who has served on numerous coal mine
safety boards said that mine safety supervisors must have
statutory authority to take charge of mine safety.\63\
Li Yizhong, the new Director of General Administration of
SAWS, suggested a different approach to violations of safety
laws and regulation: tough criminal penalties for public
servants who are negligent or corrupt. Local officials have
said that the criminal law is too lenient because punishment
for major accidents is limited to seven years in prison and a
fine of 200,000 yuan ($24,390).\64\ Some safety experts suggest
that compulsory insurance would increase safety for workers,
since companies would have to strengthen safety standards to
keep premiums affordable. But one manager from a Chongqing city
insurance company explained that operations at coal mines are
frequently chaotic, and workers might not be able to prove
claims for compensation due to inconsistent records. In
addition, with the government failing to supervise work safety
in Chinese mines, insurance companies might not underwrite
policies for mining companies.\65\
U.S.-China Bilateral Programs
Bilateral exchange and cooperation on labor issues between
the U.S. Department of Labor (DOL) and Chinese government
agencies during the past year has been constructive. DOL and
its Chinese counterparts are discussing ways to implement
letters of understanding signed in June 2004. These agreements
contemplate U.S.-China cooperation in the administration of
wage and hour laws, mine safety programs, pension program
oversight, and occupational safety and health issues.\66\ Other
bilateral program activities are also underway. For example,
the United States and China are collaborating on a rule of law
project aimed at developing better laws and regulations
governing labor inspections and employment contracts, and
providing legal education and services to workers and
employers. Staff of the mine safety project began to train
Chinese miners and safety managers during 2005. The DOL also
funded an ``HIV/AIDS in the workplace'' program in September
2004 that is currently in the design phase.\67\
Forced Labor
Forced labor is an integral part of the Chinese
administrative detention system. A recent International Labor
Organization report discusses prison labor without due process
in Chinese re-education through labor (RETL) camps.\68\ At
least 250,000 to 300,000 individuals are currently detained in
approximately 300 centers in the RETL system.\69\ Although the
Chinese government is in the process of reforming this system,
it is unlikely to be abolished [see Section III(b)--Rights of
Criminal Suspects and Defendants--for a
detailed discussion of China's administrative detention
system]. In response to the Chinese government's 2005 progress
report on this issue, the United Nations Committee on Economic,
Social, and Cultural Rights recommended that the Chinese
government ``abolish the use of forced labor as a corrective
measure.'' \70\
In the past, laogai (reform through labor) camps were the
source of many forced labor-related human rights abuses. The
executive director of a U.S. human rights NGO told a Commission
roundtable that, although Chinese officials no longer use the
term laogai, forced labor continues in substantially the same
form in laojiao (RETL) camps. Laojiao has since developed into
one of the most commonly used tools for punishing and
suppressing political and religious dissent, and is currently
being used to suppress the Falun Gong movement.\71\
An August 2005 news report described interviews with guards
at a laojiao facility and employees at a wig factory who
alleged that a Chinese hair products company used forced labor
from the laojiao camp for products exported to the United
States.\72\ A U.S.-based Falun Gong practitioner told a
Commission Roundtable in June that the same Chinese company
used forced labor from Falun Gong practitioners to make
products for export to the United States and other
countries.\73\
Chinese regulations bar the export of goods made with
prison labor, and Section 307 of the Tariff Act of 1930
prohibits the import of goods made by prisoners into the United
States. The United States and China signed a Memorandum of
Understanding in 1992 to prevent the import into the United
States of prison labor products. A subsequent agreement in 1994
permits U.S. officials, with Chinese government permission, to
visit facilities suspected of producing prison products for
export to the United States. Three visits to prison-related
facilities were made in 2004, leading to these three cases
being closed. However, at the end of 2004, the backlog of cases
remained substantial, and the Chinese government continued to
explicitly exclude from the agreements re-education through
labor facilities.\74\
Chinese authorities have identified commercialization of
the Chinese prison system as a source of official corruption.
Minister of Justice Zhang Fusen expressed concern about the
commercial use of prison labor in China in an August 2004
speech on prison reform. Zhang emphasized that ``administrators
of prisons mixed goods from outside enterprises with those made
using prison labor. Such practices are the source of
allegations of corruption and abuse in the Chinese prison
system.'' \75\
Child Labor
Child labor remains a significant problem in China, despite
being prohibited by law.\76\ Some manufacturers prefer to
employ child workers illegally for their low cost, docility,
and dexterity.\77\ In addition, low wages and poor working
conditions have driven many adult workers away from southern
manufacturing zones such as Shenzhen, heightening demand for
child labor in these areas.\78\
Statistics on child labor are considered a state secret, a
policy that prevents accurate reporting on the extent of the
problem.\79\ Nevertheless, provincial labor inspection units
report having freed hundreds of child laborers during labor
investigations in 2004.\80\ Employment of child laborers
apparently is concentrated in light, labor-intensive industries
requiring low skill. Employers often subject children in such
industries to labor abuses such as forced overtime and exposure
to hazardous chemicals.\81\ In July 2005, the Southern Daily
reported that about 300 children were working under abusive
conditions at a toy factory in Guangdong province.\82\ The
factory owner said the shortage of adult workers forced him to
ignore the minimum age for hiring. Many rural children work in
cottage or family enterprises involving dangerous manufacturing
practices, such as assembling fireworks.\83\
The rural educational system in China exacerbates the
problem of child labor. A high dropout rate in rural areas
creates a stream of underage laborers.\84\ In addition, Chinese
labor law and policy fails to distinguish between the illegal
use of ``child labor'' and permissible ``work-study''
programs,\85\ allowing unscrupulous public school
administrators to use students as low-wage labor.\86\ Private
schools are also complicit in using child labor.\87\ In 2004,
authorities discovered that a private middle school in Jiangxi
province was sending students to an electronics factory in
Shenzhen, where managers forced them to work overtime under
harsh conditions.\88\
III(d) Freedom of Religion
FINDINGS
<bullet> The Chinese government continues to harass,
abuse, and detain religious believers who seek to
practice their faith outside state-controlled religious
venues. In 2005, the government and Party launched a
large-scale implementation campaign for the new
Regulation on Religious Affairs to strengthen control
over religious practice, particularly in ethnic and
rural areas, violating the guarantee of freedom of
religious belief found in the new regulation.
<bullet> The religious environment for Tibetan Buddhism
has not improved in the past year. The Party demands
that Tibetan Buddhists promote patriotism toward China
and repudiate the Dalai Lama, the religion's spiritual
leader. The intensity of religious repression against
Tibetans varies across regions, with officials in
Sichuan province and the Tibet Autonomous Region
currently implementing Party policy in a more
aggressive manner than officials elsewhere. Sichuan
authorities sometimes impute terrorist motives to
Tibetan monks who travel to India without permission.
<bullet> The Chinese government continues to repress
Catholics. Chinese authorities are currently detaining
over 40 unregistered clergy and have taken measures
this year to tighten control of registered clergy and
seminaries. Despite assurances of its desire to
establish diplomatic relations with the Holy See, the
Chinese government has not altered its long-standing
position that, as a precondition to negotiations, the
Holy See must renounce a papal role in the selection of
bishops and break relations with Taiwan.
<bullet> The government continues to strictly regulate
Muslim practices, particularly among members of the
Uighur minority. All mosques in China must register
with the state-run China Islamic Association. Imams
must be licensed by the state before they can practice,
and must regularly attend patriotic education sessions.
Religious repression in Xinjiang is severe, driven by
Party policies that equate peaceful Uighur religious
practices with terrorism and religious extremism.
<bullet> In the past year, the Chinese government
continued a campaign begun in 2002 focused on harassing
and repressing unregistered Protestant groups and
consolidating control over registered Protestants.
Hundreds of unregistered Protestants associated with
house churches have been intimidated, beaten, or
imprisoned. The Chinese government opposes the
relationships that many unregistered Protestant house
churches have developed with co-religionists outside
China.
Introduction
Religious believers in China practice their faith in the
shadow of government and Party propaganda, control, and
harassment. Believers who choose to worship outside state-
controlled venues face detention or arrest, and in some cases
police abuse. Such repression, while not uniform across China,
has created an atmosphere of anxiety and unpredictability for
most Chinese believers. The new Regulation on Religious Affairs
(RRA),\1\ which took effect in 2005, requires local religious
affairs officials to ``standardize'' the management of
religion. As a result, local officials measure their success in
terms of the number of unauthorized religious venues that they
merge, correct, or shut down, or the number of unregistered
believers detained and arrested.\2\
New Regulation on Religious Affairs
Government officials initially emphasized that the RRA
would liberalize state management of religious affairs, but
they subsequently stressed the aspects that strengthen state
control. At an international conference in 2004 that took place
before the RRA was implemented, Zhang Xunmou, head of the
policy and legal department of the State Administration of
Religious Affairs (SARA), said the new regulation would bring
about a ``paradigm shift'' in the control of religion in
China.\3\ He also predicted that the RRA would set clear limits
on official power over religion, safeguard religious freedom,
and move from a system of direct bureaucratic control over
religion to a system of self-government by religious groups.\4\
But as the March 1 implementation date drew closer, other
senior SARA officials emphasized that the goal of the RRA is to
manage religious affairs, and that officials working on
religious issues could be held accountable for failing to
follow the relevant laws and procedures.\5\
Central government officials also stressed the importance
of using the RRA as a shield against foreign religious
influence in meetings held throughout China in early 2005. The
Tibet Autonomous Region (TAR) government was among the first to
hold such meetings. TAR Vice Chairman Gyara Lobsang Tenzin
(Jiare Luosang Danzeng) introduced the RRA in a January 2005
speech in which he emphasized ``preventing outside powers from
using religion to infiltrate China,'' and giving religious
affairs officials ``a lawful method to deal with more
complicated religious issues.'' \6\ He mentioned protection of
religious freedom only briefly.\7\
Officials also called for using the RRA to guard against
``foreign infiltration'' at meetings in Yunnan and Jiangsu
provinces in February.\8\ And in an April meeting in Henan
province, Zhi Shuping, the Henan Deputy Party Secretary,
focused on foreign threats and the danger that religion can
destabilize society.\9\ Zhu also said that, ``For those
comrades engaged in religious work, the study and
implementation of the RRA is a major event; even more, it is a
powerful weapon, a one-time favorable opportunity.'' \10\
Although the language of the RRA showed early promise, the
government implementation campaign this year has emphasized
increased control over religion, and reports from U.S. NGOs
that monitor religious freedom in China show increased
restrictions on registered Christian groups since the RRA was
implemented.\11\ Before the RRA, Chinese law already contained
many of the rights and protections for believers found in the
new regulations, such as the protection of ``normal'' religious
activities,\12\ safeguards for religious properties,\13\ and
the right to a democratic election of management organizations
for religious venues.\14\ Such provisions have been largely
ineffective in protecting religious organizations from state
interference.\15\
Observers outside China have been divided on the impact of
the RRA on religious freedom in China. One U.S. GO
representative told a Commission roundtable that the RRA
further codifies ``the rules restraining religious practice in
China and the bureaucratic mechanism used to reinforce those
rules.'' \16\ An American professor was somewhat less
pessimistic, but concluded that ``the purpose [of the RRA] is
to reduce arbitrariness, but for the purpose of better state
control.'' \17\ Another U.S. academic expert had a more
positive assessment, saying that the RRA shows ``an intent to
treat religious organizations equally with other social
organizations as a normal part of Chinese society and
culture.'' \18\ A Catholic scholar in Hong Kong saw some
benefit in the RRA provisions on religious property and redress
against abusive officials.\19\ Another Catholic analyst noted a
few improvements, such as the requirement in Article 15 for
officials to respond promptly to applications for registration,
protections for religious properties in Articles 30 to 33, and
the authorization in Article 34 for organizations to establish
social service groups. The analyst expressed concern, however,
about the punishments that Articles 43 and 45 imposed against
believers and organizations that break RRA rules.\20\ Other
outside observers said the regulation does nothing new.\21\
Important questions about the RRA remain to be answered.
Such issues as whether the government will invoke Article 14 to
prevent Protestant churches located close to each other from
registering, and whether Articles 8 and 9 permit religious
groups to establish religious schools, are of particular
concern.\22\ Since the RRA went into effect, some unregistered
Protestants report that authorities have increased harassment
of house churches, but registered Protestants report little
change.\23\ For the first time, the RRA authorizes churches and
other religious entities to offer social services and raise
funds to support them, requiring that the religious entity use
any proceeds for ``activities commensurate with the aims of the
religious organization as well as the relevant social
services.'' \24\ Article 35 allows religious entities to accept
foreign donations to support ``activities commensurate'' with
the entity's goals. The RRA also provides for religious
organizations to be governed by the ``Regulations on the
Management of Registration of Social Organizations'' (RSO).\25\
These regulations impose restrictive and burdensome
requirements on social organizations, and do not guarantee
organizational autonomy. A Ministry of Civil Affairs official
said, however, that the RSO requirement to register with a
government sponsor would be loosened in the case of religious
organizations.\26\
The RRA does not clearly restrict either religious
organizations or venues for religious activities to the ``five
categories of religion''--Buddhism, Catholicism, Daoism, Islam,
and Protestantism--permitted by law since 1949.\27\ Some
scholars have
interpreted this lack of specificity as a decision to allow new
categories of religious practice.\28\ A senior Chinese academic
expert commented that an important current issue is the
ambiguous status of the fast-growing ``folk'' belief systems
not included in the five official categories.\29\ Another
Chinese religion expert who advised the drafters of the RRA
said the absence of a definition of ``religious belief'' in the
final product shows continuing government caution about
expanding the number of recognized religions. The Orthodox
Church hopes that the government will permit it to operate in
China under the RRA.\30\ Believers in traditional forms of
Chinese ``folk'' religion, which the Party has long disdained
as feudal superstitions, also hope that a category for popular
religion may be added to the official five.\31\
Government Persecution of Falun Gong
Chinese authorities continue to persecute practitioners of
Falun Gong and other qigong disciplines that the government has
designated ``cults.'' A Party-led anti-cult campaign that
targeted religious and spiritual activities in rural areas,
including Falun Gong practitioners, continued through late
2004.\32\ In 2005, the Party continued to campaign across
China,\33\ seeking to persuade the public that the groups
labeled as ``cults'' claim to be religious or spiritual, but in
fact are ``anti-social.'' Documents of the ``610'' offices,
which are local government offices that keep track of such
groups, reveal an organized bureaucratic scheme for rewarding
local officials who uncover, re-educate, and detain
practitioners. Officials who fail to perform these tasks
receive demerits on their periodic work evaluations. In June
2005, diplomat Chen Yonglin, assigned to the Chinese Consulate
General in Sydney, Australia, requested asylum in Australia on
the grounds that he would be persecuted for having failed to
report and follow up on Falun Gong and dissident activity in
Australia.\34\ Government repression has not succeeded in
eliminating Falun Gong in China. Rather, according to a U.S.
scholar, it has ``shifted the struggle to virtual reality,'' as
repressed groups rely on the Internet to organize and
communicate with each other.\35\
Religious Freedom for Tibetan Buddhists
The environment for the practice of Tibetan Buddhism has
not improved in the past year. The Party does not allow Tibetan
Buddhists the freedom to practice their religion in a
meaningful way, and instead tolerates religious activity only
within the strict limitations imposed under the Chinese
government's interpretation of the Constitution, laws,
regulations, and policies. The Chinese leadership refuses to
acknowledge the Dalai Lama's role as the spiritual leader of
Tibetan Buddhists.
China's new RRA may lead to more administrative intrusion
into Tibetan Buddhist affairs by underscoring the state's right
to supervise the effects of religion on society.\36\ If the RRA
leads to further restrictions on teaching and assembly in
Tibetan monasteries, on association between the Tibetan clergy
and laity, and on small prayer gatherings of the Tibetan laity,
the result will further erode the traditionally close ties
between the Tibetan monastic and secular communities. Tibetan
Buddhism forms the core of self-identity for most Tibetans and
is integrated throughout the activities of daily life. Official
regulations that interfere with the practice of Tibetan
Buddhism harm the Tibetan common identity.
Each Tibetan monastery and nunnery has a Democratic
Management Committee (DMC)\37\ that functions as its
administrative interface with the state. Authorities expect
DMCs to ensure that monks and nuns obey laws and regulations
governing religion, and uphold national and ethnic unity.\38\ A
group of DMC leaders from TAR monasteries completed a training
course on the new religious affairs regulations in May 2005. At
the closing ceremony, each one pledged individually, ``When we
go back, we will use the knowledge we have gained in our
practical work, further improve the democratic management of
our local temples, lead the masses of monks and nuns to love
the nation and love the religion, and make more contributions
to building a harmonious Tibet.'' \39\
The attitudes of DMC members toward religion vary within
each monastery and across regions.\40\ Some DMC members try to
facilitate the religious purpose of a monastery by working to
maintain a disciplined program of scriptural study, but a
shortage of qualified teachers and state control undercut
Tibetan monastic study.\41\ Party and government pressure most
heavily affects monasteries and nunneries that follow the
Tibetan Buddhist tradition most directly associated with the
Dalai Lama, the Gelug.\42\ Monasteries associated with other
traditions, such as the Kargyu, Sakya, and Nyingma, may
encounter less official interference in their monastic
affairs.\43\
The intensity of religious repression varies across
regions, with officials in Sichuan province and the TAR
currently implementing policy in a more aggressive manner than
elsewhere.\44\ According to data available in the CECC
Political Prisoner Database (PPD) in June 2005,\45\ the TAR,
the location of the majority of Tibetan political protests from
the late 1980s to mid-1990s, holds more than half of the
Tibetan political prisoners known to be currently imprisoned.
About 60 percent of them are monks. But in recent years,
Sichuan province authorities have detained more than three
times as many Tibetans for political reasons than either the
TAR or Qinghai province. About two-thirds of the Tibetan
political prisoners detained from 2002 onward are in Sichuan
province, according to the PPD. Half of them are monks. In
Qinghai province, there are fewer Tibetan political prisoners
than in the TAR or Sichuan province, but all except one of them
are monks.
Authorities wary of devotion to the Dalai Lama sometimes
accuse monks who travel to India for pilgrimage or religious
study without obtaining official permission\46\ of splittist or
terrorist motives. A Chinese public security journal, Policing
Studies, reported in 2004 that `` `pro-Tibetan independence'
extremists pose the greatest threat to Sichuan province's anti-
terrorism work.'' \47\ The article focuses on ``the Dalai Lama
separatist gang'' and estimates that since 1980, over 6,000
Tibetans from Sichuan province have traveled illegally ``to
undergo training and then returned to engage in separatist
sabotage.'' The risk of terrorist attacks by ``believers in
religion in the Tibetan autonomous prefectures in Sichuan'' can
be eliminated only by ``long-term arduous efforts to eliminate
the Dalai Lama's religious influence in these prefectures,''
according to the analysis.
The same article exploits the security concerns of the
post-September 11th era by depicting religious devotion to the
Dalai Lama as a terrorist menace to China's national security.
Tenzin Deleg (A'an Zhaxi),\48\ a Buddhist teacher, is named as
the head of a ``violent terrorist gang'' who used his status to
``hoodwink and instigate others'' into setting off bombs. The
article emphasizes that Tenzin Deleg traveled illegally to
India, where the Dalai Lama recognized him as a reincarnated
lama. The article warns that Tibetan Buddhists who ``returned
to these regions illegally,'' or who have been punished for
taking part in political demonstrations, or who have been
``dismissed after the reorganization of monasteries,'' \49\
will ``very easily become violent terrorists under the
instigation and organization of the Dalai Lama's separatist
group.''
Sichuan province authorities released Sonam Phuntsog, a
popular Tibetan Buddhist teacher, from prison in October 2004
when his sentence was complete. He was imprisoned after being
convicted on charges of splittism after he led prayers for the
Dalai Lama's well-being. Sonam Phuntsog's official sentencing
document states that police detained him ``on suspicion of
taking part in a bombing incident,'' but the court found him
guilty because he urged ``crowds of people to believe in the
Dalai Lama and recite long life prayers'' for him.\50\ The
document describes as evidence against Sonam Phuntsog a trip he
made to India, where he met the Dalai Lama.
The Chinese government asserts the right to ``[safeguard]
the normal order of Tibetan Buddhism'' by supervising the
selection of reincarnations of important Tibetan lamas.\51\
State-run political education sessions require that monks and
nuns denounce the Dalai Lama's recognition in 1995 of Gedun
Choekyi Nyima as the reincarnation of the Panchen Lama, the
second-ranking Tibetan spiritual leader. Officials promptly
took Gedun Choekyi Nyima, then age six, and his parents into
custody and have held them incommunicado since that time.
Chinese authorities installed another boy, Gyalsten Norbu,
several months later and demanded that secular and monastic
communities accept his legitimacy. President Hu Jintao met with
Gyaltsen Norbu in February 2005 and called on him to be ``a
model of loving the country and loving religion,'' \52\ the
same patriotic formula impressed upon all Tibetans. Gyaltsen
Norbu's appointment continues to stir widespread resentment
among Tibetans.\53\ The U.S. government has repeatedly urged
China's government to end restrictions on Gedun Choekyi Nyima
and his family and to allow international representatives to
visit them.
Religious Freedom for China's Catholics and China-Holy See Relations
China's new RRA has not brought greater government respect
for the religious freedom of Chinese Catholics.\54\ Since the
new regulations went into force in March, harassment and
detention of unregistered Catholics has increased, and even
registered priests are now obliged to report weekly to their
local SARA office on all of their activities.\55\ The RRA
permits foreign professors to teach in registered Chinese
seminaries, which have for years relied on the professors'
expertise. In the past year, however, officials have prevented
foreign professors from teaching at almost all registered
seminaries, and students lacking graduate degrees must teach
many seminary courses.\56\
The Chinese government continues to detain unregistered
Catholic clerics. According to a U.S. NGO that monitors the
unregistered Catholic community in China, 41 unregistered
bishops and priests are in prison, labor camps, or under house
arrest or surveillance.\57\ Many of the detentions reported
over the past 12 months were for short periods. Some were
accompanied by attempts to pressure the cleric to register with
the Catholic Patriotic Association. Other detentions probably
were intended as warnings against public gatherings, such as
the 10 detentions during the two-month period of the papal
transition. Jia Zhiguo, unregistered bishop of Zhengding
diocese in Hebei province and a leading figure among
unregistered Catholic bishops, has been detained five times in
the past 12 months.\58\ The condition and whereabouts of Su
Zhimin, the unregistered Catholic bishop of Baoding diocese in
Hebei, remain
unknown.\59\
The Chinese government continues to interfere in the life
of the registered Catholic community. The government seeks to
interfere in the process of selecting bishops, promoting
clerics who acquiesce in government control of the registered
Catholic community.\60\ But other registered bishops and
priests have resisted this interference, and in recent years
many candidates to become bishops have privately sought and
received the approval of the Holy See before their ordination.
The Chinese government has acquiesced in the ordination of
candidates approved by the Holy See.\61\ Twice in the past 12
months, in Shanghai and Xi'an, the registered bishop ordained
an auxiliary bishop with right of succession. In both cases the
Chinese government and the Catholic Patriotic Association
officially denied the role of the Holy See. Although the Holy
See did not comment, Catholic bishops abroad and Catholic news
agencies confirmed its role in the ordination.\62\ According to
informed sources and analysts, the Chinese government and the
Holy See cooperated to prepare the unification of the
registered and unregistered Catholic communities in the
Shanghai diocese: after the death of the current registered and
unregistered bishops of Shanghai (both men are 90 years old and
ill), no replacement will be appointed, so that the registered
bishop's new auxiliary bishop will become the ``single point of
reference'' for both communities.\63\the process of mutual
adaptation has been accompanied by considerable tension between
the government and the Church. A generation of elderly bishops
is rapidly passing, and, due to the loss of a generation of
priests during the Cultural Revolution, the candidates to
replace them are often in their thirties or early forties.
These men could well lead the Church in China for 50 years.\64\
In the past year, 14 registered bishops have died and only two
have been replaced.\65\ The Chinese government monitors and
inspects the registered seminaries, where it is forbidden to
teach anything contrary to Party policy, including Catholic
moral teaching on abortion, euthanasia, contraception, and
divorce.\66\
Some forms of Chinese government interference are
relatively mild. Having declared that the Catholic Church needs
to improve the ``quality'' of its clergy, the government has
permitted and
promoted the expansion of educational opportunities for
religious congregations of women and programs to improve
priestly formation.\67\ As part of its larger policy to
encourage private initiatives in social welfare, the Chinese
government has continued to permit the registered Catholic
community to expand its social service programs.\68\
The most important recent developments in the life of the
Catholic Church in China are the restoration of communion
between many members of the registered clergy and the Holy See,
and the growing reconciliation of unregistered with registered
Catholics. But in the past year registered clerics have rarely
manifested their fidelity to the Holy See publicly, leading
observers to ask whether progress has slowed. Some analysts
speculate that Church leaders have decided to maintain a lower
profile, to allow the Chinese government to ``save face.'' \69\
A letter written by a Holy See diplomat to all the unregistered
bishops, and released by one of the latter to a U.S.-based NGO,
surprised many by saying that ``obviously, the Patriotic
Association has the characteristic of being in schism'' and
detailing the reconciliation procedures demanded of priests
registered with the Patriotic Association.\70\ Most observers
report that the reconciliation between unregistered and
registered Catholics continues. Although most unregistered
Catholics continue to refuse to worship with the registered
Catholic community, some do so with registered bishops and
priests privately in communion with the Holy See.
Despite assurances of its ``sincere'' desire to establish
diplomatic relations with the Holy See, the Chinese government
has not altered its long-standing position that the Holy See
must break relations with Taiwan and renounce a papal role in
the selection of bishops. In late March 2005, senior Chinese
leaders reportedly held substantive discussions with a senior
European Catholic prelate in Beijing. The government generally
responded to the papal transition with perfunctory recognition
by granting the events minimal media coverage, but public
security officials also increased harassment of Catholics,
detaining 13 clerics. Chinese authorities also blocked
discussion of the transition on domestic and international Web
sites. Since May 2005, the Chinese government has made some
conciliatory public statements. Since April 3, the Holy See has
not publicly protested the detention of Catholic clergy, and
Pope Benedict XVI has also made conciliatory public
statements.\71\ The U.S. government has repeatedly encouraged
the Chinese government to establish diplomatic relations with
the Holy See.
Religious Freedom for China's Muslims
The Chinese government strictly controls the practice of
Islam, and severely represses Islamic worship among members of
the Uighur minority population in Xinjiang [see Section
III(a)--Special Focus for 2005: China's Minorities and
Government Implementation of the Regional Ethnic Autonomy Law].
All public mosques throughout the country must register with
the state-run China Islamic Association. The government bans
all private mosques, as it does private religious venues of any
faith. Before they can practice, imams must be licensed by the
Chinese government, and afterward must attend patriotic
education sessions regularly. The China Islamic Association's
Islamic Affairs Steering Committee, established by the central
government in March 2001, continues to author suggested sermons
and to censor Islamic religious texts to ensure that all
published interpretations properly reflect ``socialist
development and advanced culture.'' \72\
Several provinces are running Ethnic Unity and Advancement
Campaigns demanding that religious organizations decrease their
financial dependence on the state while also accepting fewer
contributions from their practitioners.\73\ The government
continues to subsidize religious personnel who ``ardently love
their country,'' \74\ but several mosques have been forced to
charge visitors admission fees or lease out portions of their
facilities.\75\ To fund its growing debts last summer, the
Religious Management Committee of the Guangyuan mosque in
Sichuan province reportedly allowed private investors to
convert two stories of the mosque into an ``Arabian Nights Bar
and Discotheque.'' \76\ The new RRA provisions that allow
foreign and domestic donations to religious organizations may
ease some financial pressures, but all of their revenue and
expenditures must be reported to SARA.\77\
Outside of the Xinjiang Uighur Autonomous Region, the
government allows some Muslim groups to run private schools for
minors in poor areas and to engage in other social welfare
programs.\78\ A government-run Web site highlighted in 2005 the
achievements of a privately run Islamic school in Gansu
province,\79\ for example, and the Qinghai press praised the
Dongguan mosque's contributions of food and shelter to the
needy.\80\ Outside of Xinjiang, the government allows some
mosques\81\ registered with the China Islamic Association to
manage religious schools for those 18 years and older.\82\ As
the government notes the positive contributions of Islamic
groups, officials may allow them to assume greater
responsibility for the nation's growing social welfare needs.
Within Xinjiang, the Chinese government conflates private
Uighur Islamic practices with ``religious extremism'' and
``ethnic splittism.'' \83\ Islam is a key component of Uighur
ethnic identity, and the government is concerned it may be used
to build support for greater effective autonomy. Uighurs face
more restrictions on their religious life than other Muslims,
including non-Uighurs living in Xinjiang.\84\ According to a
member of Xinjiang's Academy of Social Sciences, Xinjiang has
more religious regulations than any other province, providing
the government a ``powerful legal weapon'' to control
religion.\85\ In a major policy statement in January, Xinjiang
General Secretary Wang Lequan declared that the Party ``must
unremittingly make education in atheism part of the effort to
transform social customs, guide the masses to develop a
scientific, civilized, and healthy way of life, and promote
nationality development and progress.'' \86\ Xinjiang leaders
hail China's new RRA as a ``prime opportunity'' to increase
religious management in the struggle against religious
extremism and splittism.\87\
The current crackdown on Uighur Islamic practices began
with the collapse of the Soviet Union in 1991 and has increased
in intensity in the post-September 11 era.\88\ Central and
provincial authorities developed a set of religious regulations
in the early 1990s that impose restrictions in Xinjiang not
found elsewhere in China.\89\ These restrictions continue to
determine policy today. The Party Central Committee imposed
``severe controls on the building of new mosques'' \90\ in
1996, the same year that Xinjiang authorities targeted
``religious extremists and ethnic separatists'' for arrest\91\
during a national ``strike hard'' campaign against general
crime.\92\ New regulations in October 1998 required all imams
in Xinjiang to attend mandatory ``patriotic education'' courses
each year to renew their accreditations.\93\ In 2001, the
Xinjiang local people's congress amended the central
government's 1994 Regulations on the Management of Religious
Affairs restricting religious observances to those who
``safeguard the unification of the motherland and national
solidarity, and oppose national splittism and illegal religious
activities.'' \94\
The government arrested more than 200 Muslims in July and
August 2005 for possessing ``illegal religious texts.''\95\ The
Xinjiang government prohibits state-sanctioned religious groups
below the provincial level from publishing religious materials
without receiving prior approval from the Xinjiang State
Administration of Religious Affairs.\96\ Individuals and groups
are strictly prohibited from publishing or disseminating any
material with ``religious content'' without government
permission.
Central government officials assured the foreign press in
March 2005 that minors are allowed to worship freely in
China,\97\ but the Xinjiang government prohibits children under
18 years of age from entering mosques or receiving religious
instruction even in their own homes.\98\ Students may not
observe religious holidays, fast during Ramadan, or wear
religious clothing in public schools. The government requires
teachers to report students who pray or observe Ramadan.\99\
The government regulates the construction of mosques and has
closed hundreds of them since the mid-1990s.\100\ The
government outlaws all private religious classes (madrassas)
and mosques in Xinjiang.
Government controls on religious belief and practice in
Xinjiang not only violate the freedom of religion of Xinjiang's
minority people, but also their freedom of expression and the
right of each minority to protect and develop its own culture
that is conferred by the 1984 Regional Ethnic Autonomy
Law.\101\ Government policies also contravene several
international conventions to which China is a signatory.\102\
The government's refusal to recognize the Uighurs'
constitutionally guaranteed right to practice their religion
freely has exacerbated tensions in the region [see Section
III(a)--Special Focus for 2005: China's Minorities and
Government Implementation of the Regional Ethnic Autonomy Law].
A recent Human Rights Watch report warns that unless the
government eases controls on Uighur religious activities, the
policy ``will likely alienate Uighurs, drive religious
expression further underground, and encourage the development
of more radicalized and oppositional forms of religious
identity.'' \103\
Religious Freedom for China's Orthodox Christians
Orthodox Christian life is slowly reawakening in China,
although the community is small and has no priests to conduct
divine liturgy.\104\ The central government has refused to
grant Orthodoxy the same status as the five ``official''
religions, but local authorities have registered Orthodox
communities in Ghulja, Harbin, Labdarin, and Urumqi.\105\ Many
observers think that the absence of a provision in the new RRA
restricting official recognition of religions to a list of five
was meant to ease the path of Orthodoxy to recognized
status.\106\ The government has held talks with representatives
of the Russian Orthodox Church, which is urging Chinese
officials to permit Chinese seminarians studying for the
priesthood in Russia to exercise their ministry in China.\107\
Religious Freedom for China's Protestants
The new RRA has not improved religious freedom for Chinese
Protestants, with those worshipping in unregistered house
churches continuing to be targeted for official repression. The
government has continued a campaign begun in 2002 focused on
harassing and repressing unregistered Protestant groups and
consolidating control of registered Protestants.\108\
Although the RRA applies equally to all religions, some of
its provisions address issues of primary concern to
Protestants. Article 6 appears to permit Protestant house
churches to register with the Ministry of Civil Affairs without
also registering with the SARA or the Three Self Patriotic
Movement (TSPM), the official national Protestant organization.
Some Western analysts believe that the new registration system
was designed to address complaints by unregistered Protestant
groups that local SARA offices ignore their applications.
Whatever its purpose, the new system has resulted in a
difference of opinion among house church leaders.\109\ Some
house churches want the security of legal recognition and the
opportunity to establish approved kindergartens and health
clinics, as well as to run seminaries and exchanges with
foreign countries. Other house church leaders fear that their
churches will not be able to maintain independence from the
TSPM if they register, or that the government will tighten
repression against those churches that refuse to register.\110\
Government authorities committed human rights abuses
against unregistered Protestants during the past year. Hundreds
of unregistered Protestants associated with the house church
movement have been intimidated, beaten, or detained. A US-based
NGO that monitors the persecution of Chinese Protestants
reported mass detentions of house church leaders and members in
February, May, June, July and August of 2005. These detentions
included American missionary workers and often involved the
physical abuse of detainees.\111\ Cai Zhuohua, a house church
pastor in Beijing, and several of his relatives were detained
in September 2004 when the government discovered a large stock
of religious literature in their possession. The government
tried them in July 2005 for ``illegal business practices,'' but
the court has not yet issued a judgment.\112\ Zhang Rongliang,
leader of the Fangcheng Fellowship of house churches and co-
author of the 1999 ``House Churches of China's Confession of
Faith and Declaration,'' has been detained since December
2004.\113\ Tong Qimiao, a Christian businessman, was beaten by
public security officials in Xinjiang and later visited by
officials who threatened to ruin his business if he did not
sign an affidavit stating that he had not been beaten.\114\
Several cases from previous years continued to develop. The
United Nations Working Group on Arbitrary Detention (UNWGAD)
took up the case of Zhang Yinan, a house church historian
sentenced to re-education through labor, and in December 2004
the UNWGAD found that government deprivation of Zhang's liberty
was arbitrary and contravened the Universal Declaration of
Human Rights (UDHR).\115\ Gong Shengliang, pastor of the South
China Church, continues to serve a life sentence; nine of the
state's witnesses against Pastor Gong now say that their
testimony was extracted from them under torture.\116\
Recent government directives on religion have responded to
the growth of Protestantism by re-emphasizing longstanding
policies that require subservience to the state. In August
2004, the government reiterated that Party members may not
believe in any religion, prohibited religious activity at
universities, and clarified what is not permitted when dealing
with foreign religious organizations.\117\ A particularly
insistent part of the campaign to make registered Protestants
conform to state policies has been the TSPM's imposition of a
``theological construction'' that will, in the words of TSPM
Chairman Ding Guangxun, ``weaken those aspects within Christian
faith that do not conform with the socialist society.'' \118\
Such aspects include justification by faith, Christ as the sole
path to salvation and the inerrancy of Scripture, which are
fundamental beliefs of most Chinese Protestants. Some
professors and students who have challenged this imposed
theology have been removed from seminaries.\119\
The Chinese government opposes the relationships that many
unregistered Protestant house churches have developed with co-
religionists outside China. Many house churches are organized
into networks that receive overseas support, especially from
evangelical groups in the United States.\120\ Many detentions
of house church worshipers follow contacts with foreigners, and
the government frequently charges house church leaders with
maintaining illicit connections abroad.\121\ House churches
generally do not pursue these overseas connections for
political reasons, but rather to obtain financial support and
training. These relationships also help house church leaders
publicize abuses against unregistered Christians.\122\ At the
same time, the Chinese government permits the leadership of the
TSPM to maintain extensive relations abroad with
interdenominational ``mainline'' Protestant organizations. In
May 2005, a TSPM delegation attended the World Council of
Churches Conference on World Mission and Evangelism for the
first time.\123\
Protestantism is becoming an important influence on Chinese
society and culture. Estimates of the total number of
Protestants in China range from 30 to 100 million.\124\ Despite
their relatively small number compared to China's total
population, Protestants are a growing presence in many eastern
provinces and cities and at many universities. Most Protestants
in these areas are young people, and the majority of them are
women.\125\ Unregistered and registered Protestants generally
respect the authority of the
Chinese government and most house church leaders hope for
evolutionary rather than revolutionary changes in China. Both
unregistered and registered Chinese Protestants hope to play a
role in shaping China's future.\126\
The Chinese government seeks to blunt many of the effects
and influences of Protestantism, but it welcomes others. The
Chinese government sees threats to social ``harmony'' and Party
control over religion in certain ideas spreading in house
church circles, particularly the reintroduction of Protestant
denominational distinctions and Protestant evangelicalism and
Pentecostalism.\127\ But the government welcomes the social
service projects undertaken by the Amity Foundation, a well-
established Protestant foundation that in the past has
sponsored projects in rural development, leadership training,
public health, AIDS clinics, care for the elderly, and
orphanages.\128\ The Chinese government has also permitted
several Protestant schools to open and supported the plans of a
U.S.-based NGO to open China's first post-1945 privately-run
university with an openly Christian mission.\129\ Some
officials at the local level have recognized the stabilizing
influence of religion on Chinese
society.\130\
III(e) Freedom of Expression
FINDINGS
<bullet> Chinese authorities allow government-sponsored
publications to report selectively on information that,
in previous decades, officials would have deemed
embarrassing or threatening. Nevertheless, the Chinese
government does not respect the freedom of speech and
freedom of the press guaranteed in China's
Constitution.
<bullet> In the past year officials have become less
tolerant of public discussion that questions central
government policies and have tightened restrictions on
journalists, editors, and Web sites.
<bullet> Chinese authorities impose strict licensing
requirements on publishing, prevent citizens from
accessing foreign news sources, and intimidate and
imprison journalists, editors, and writers.
Increased Government Control of Political Speech
Chinese citizens face increased government regulation and
suppression of their freedom of speech and freedom of the
press, which are guaranteed in China's Constitution.\1\ Over
the past year public security authorities have detained or
imprisoned over two dozen journalists, editors, and writers,
including Zhao Yan, a researcher for the New York Times, and
Ching Cheong, a reporter with the Singapore Straits Times.
Officials have confiscated hundreds of thousands of
publications for having illegal political content, banned
hundreds of newspapers and magazines for publishing without
government authorization, and shut down one quarter of the
private Web sites in China for failing to register with the
government.
In May 2005, the United Nations Educational, Scientific,
and Cultural Organization (UNESCO) awarded Chinese newspaper
editor Cheng Yizhong the Guillermo Cano World Press Freedom
Prize. The Chinese government prohibited Cheng from attending
the award ceremony (in the previous year, government and Party
officials detained Cheng, had him dismissed from his job, and
expelled him from the Party). In an acceptance speech, read in
his absence at the ceremony, Cheng said:
Terror is everywhere. Lies are everywhere. We have
been deceiving ourselves further and further down this
path. I believe that in the near future, we will look
back and find this insane and absurd episode to be
absolutely unthinkable. If we accept the prevalent evil
as normal, we will be co-conspirators in our own
oppression.\2\
China's leaders hope to generate economic growth by
harnessing domestic consumer demand for information and
entertainment, but at the same time they expend significant
human, legal, technical, and financial resources to ensure that
commercialization of China's media does not diminish the
government's ability to manipulate public opinion. Government
agencies have consolidated control over all forums of political
discourse by censoring newspapers, magazines, television news
broadcasts, radio, Web sites carrying news and information,
and, most recently, personal Web pages. When unable to block
opinions with which they disagree, Chinese authorities have
employed government and Party personnel to channel and direct
public opinion surreptitiously.
Government and Party Use of the Media to Control Public Opinion
The Communist Party uses ``political techniques to
effectively regulate and control all types of mass media,''
according to a report published by Xinhua and the State Council
Information Office.\3\ These techniques include allowing only
state-sponsored media to publish or broadcast news,
criminalizing unlicensed journalism, and requiring news editors
to provide politically sensitive news stories to Party and
government censors for vetting.\4\ According to the same
report, the Party uses its authority over the news media to
``steer public opinion'' and ``create conformity among the
increasingly diverse thoughts and perspectives'' in China's
society. The Party achieves this goal by requiring news media
to publish stories that praise central Party and government
policies and portray central Party and government officials as
working for the best interests of ordinary citizens.\5\ For
example, when Chinese authorities issued regulations in March
2005 that restricted who may engage in journalism, media
outlets such as Xinhua (which is controlled by the State
Council) and the People's Daily (which is owned and operated by
the Communist Party) began a propaganda campaign to deflect
claims that the regulations interfered with freedom of
expression. Xinhua, the People's Daily, and other state run
media claimed that the regulations were needed to stop
unethical journalists and allow ethical journalists to protect
the public.\6\ The same campaign portrayed Western news media,
particularly U.S. news media, as corrupt and government-
controlled.\7\
The Party considers journalists to be its agents, and uses
them to investigate provincial and local officials.\8\ If a
journalist writes an article about corruption or a natural or
man-made disaster, an editor may publish it, provided it shows
that the situation has been resolved in a manner that reflects
well on the Party, or that otherwise conforms to a particular
official's agenda.\9\ The government and the Party, acting
through the General Administration of Press and Publication
(GAPP) and the Central Propaganda Department, respectively,
prohibit editors from publishing stories that would tarnish the
image of the central government, the top leadership, the Party,
or their policies.\10\ Instead, editors must treat such
politically sensitive stories as internal intelligence reports,
and forward them to relevant officials.\11\
There is some variation among local news media as to what
censors deem ``politically sensitive,'' \12\ but central
authorities move quickly to silence anyone they perceive as
threatening their control over political discourse. For
example, in early September 2004, a publication of the Southern
Group (whose editors are known, and have been imprisoned, for
testing government and Party censors) published a story that
listed 50 Chinese citizens who were ``activists who advise
society and participate in public affairs.'' \13\ After the
Liberation Daily (a publication of Shanghai's Communist Party
Committee) criticized the concept of ``public intellectuals''
as
intended to ``drive a wedge between the intellectuals and the
Party,'' \14\ officials moved against Chinese intellectuals who
had disagreed in public with the government or the Party. The
campaign against public intellectuals resulted in at least
seven detentions, censorship of the term ``public
intellectuals,'' and the blacklisting of several prominent
social commentators.\15\
In another example of Chinese authorities silencing
``public intellectuals,'' in May 2005 the government abruptly
and without explanation ordered the cancellation of an academic
conference
organized by Fordham University and the China University of
Political Science and Law.\16\ Participants at the conference,
entitled ``Constitutionalism and Political Democratization in
China--an International Conference,'' had planned to discuss
sensitive topics such as ``The Different Meanings of
Democracy,'' ``Democratization and Constitutionalism: China in
Comparative Perspective,'' ``Law and Development of
Constitutional Democracy: Is China a Problem Case? '' and
``Which Path Should We Choose Toward Chinese Democracy? ''
Scheduled speakers included Western and Chinese experts well-
known in China for doing work in sensitive areas, such as
migrant labor and criminal defense.\17\ A People's Daily
editorial published during the government crackdown on public
intellectuals illustrates the attitude of Chinese authorities
that likely contributed to their cancellation of the
conference:
[W]hat has not changed is that Western hostile forces
are trying to carry out their planned conspiracy to
westernize and divide us, what has not weakened is the
influence of various types of anti-Marxist trends of
thought, and what has not stopped is the corrosive
effect of corrupt capitalist thinking and feudalism's
vestigial ideology.\18\
The government and the Party are concerned that Chinese
citizens have increased access to foreign news sources through
satellite broadcasts, the Internet, and cellular phones, which
may
dilute the Party's control over public opinion.\19\ Senior
officials portray the Internet as ``a battlefield for the
Communist Party's propaganda ideology work'' that must either
be occupied or lost to ``Western countries, headed by the
United States.'' \20\ The Party has said it must win the battle
for Internet propaganda supremacy, otherwise ``not only will it
influence China's image and investment environment, but more
importantly, it will influence the image of the Party and the
government.'' \21\
In the past year the Party has improved its ability to
silence and control political discussion on the Internet. Until
recently, authorities have focused on blocking information from
outside China and silencing critical Web sites inside China.
While their efforts have been effective, the government
recognizes that it cannot silence all politically sensitive
information that it finds objectionable. For
example, Chinese citizens wishing to express themselves without
submitting to government censorship resort to posting articles
on foreign Web sites and issuing ``open letters'' in the hope
they will be published outside China. Internet users in China
then circulate these materials. Authorities call this practice
``re-infiltration,'' and have said it threatens their control
over public opinion.\22\ Among their reactions has been to
train and employ ``Internet propagandists'' to pose as ordinary
Internet users and post opinions and information on the
Internet to ``guide'' public opinion in the direction the
government desires.\23\
Government use of the news media to control public opinion
was particularly evident during periods of heightened political
sensitivity in late 2004 and during 2005:
<bullet> Before the Fourth Plenary Session of the 16th
Central Committee of the Communist Party in September
2004, officials shut down the popular ``Big Mess''
(yitahutu) Internet chat room, and the Central
Propaganda Department ordered media outlets to publish
certain stories, and censor others, to create an
atmosphere beneficial to the fourth plenum.\24\
<bullet> When officials announced the death of former
Party General Secretary Zhao Ziyang in January 2005,
censors blacked out foreign satellite TV broadcasts
whenever Zhao's name was mentioned.\25\
<bullet> In March 2005, authorities announced that they
would enforce 24-hour monitoring over the Internet
during the annual plenary meeting of the National
People's Congress.\26\
<bullet> In April 2005, Chinese authorities used their
control of newspapers, Web sites, Internet forums, and
cell phones to stop anti-Japanese protests in several
cities.\27\
<bullet> Just before the International Labor Day
holiday on May 1, Guangdong province's Communication
Administration Office, Government News Department, and
Public Security Office issued a joint notice that
required Internet content providers to monitor user
identities, and limit users to a number that would
allow them to be managed.\28\
Chinese authorities are encouraging China's television and
Internet news outlets, all of which are government sponsored,
to increase their ability to influence public opinion abroad
regarding China.\29\ Chinese authorities are also trying to
increase their influence over bodies responsible for setting
policies for Internet governance.\30\ For example, in March
2005, Zhao Houlin, a former telecommunications official in the
Chinese government, and currently director of the International
Telecommunication Union's Telecommunication Standardization
Bureau, said: ``Today the management by the Internet
Corporation for Assigned Names and Numbers (ICANN) [is
something that] people consider to be management by the United
States, by one government. People definitely want to see some
changes.'' \31\ In June 2005, an article in China's state-run
press rationalizing that country's crackdown on private Web
sites cited a Chinese delegate to the United Nation's Working
Group on Internet Governance, Hu Qiheng, as saying she hopes
China's Internet governance experience can act as a lesson for
global Internet governance.\32\
Government Censorship
No one may legally publish a book, newspaper, magazine,
news Web site, or Internet publication in China without
significant registered capital, a government sponsor, and
government authorization.\33\ The government has the authority
to revoke any publisher's license and force it to cease
publishing.\34\ Those who
violate Chinese publishing regulations are subject to heavy
fines and long prison terms.\35\ Senior officials at the GAPP
advocate this ``rule by law'' approach as a means to control
public opinion.\36\
The Party and the government are increasingly using the law
as a weapon to silence political speech that they believe may
``provoke trouble,'' or ``confuse public opinion.'' \37\ Three
events in the past year highlight that Chinese authorities
value control of political discourse over the freedom of the
press guaranteed in China's Constitution. First, the Chinese
government cracked down on Internet expression. According to
state-run media, China's government has ``put together the
world's most extensive and comprehensive regulatory system for
Internet administration,'' \38\ and has ``perfected a 24-hour,
real-time situational censorship mechanism for Internet
publishing content.'' \39\ Throughout 2005, authorities shut
down private Web sites because of their political content.\40\
In March 2005, government agencies began enforcing a four-year-
old regulation requiring all private Web sites to register with
the Ministry of Information Industry and disclose whether their
sites include restricted content such as news and cultural
information.\41\ Some localities also began enforcing a 1997
regulation requiring private Web sites to register with public
security bureaus.\42\ As part of these new enforcement
procedures, the Ministry of Information Industry and public
security bureaus have deployed software to locate and block Web
sites that failed to register,\43\ and so far have censored
tens of thousands of private Web sites.\44\
Second, in the past year Chinese government agencies
promulgated several regulations to ensure that the government
and the Party retain their control over journalists and
editors. While the government claims these regulations are
necessary to address problems caused by a ``minority of news
gatherers and editors,'' \45\ in fact, the new regulations
allow the government to determine who may engage in journalism,
what their political orientation must be, and when they must
submit to government and Party censorship:
<bullet> In December 2004, the State Administration of
Radio, Film, and Television (SARFT) issued two notices
that regulate the political ideology of television
editors, reporters, and hosts.\46\ A week later, SARFT
announced that it would require television stations in
China to increase control over what television
interview program hosts say on the air, and only air
programs that ``comply with propaganda discipline''
produced by government-licensed production companies
and screened by relevant officials.\47\
<bullet> In January 2005, the GAPP issued two new
regulations limiting ``lawful'' news gathering and
editorial activities to those holding a government-
issued journalist accreditation card.\48\
<bullet> In March 2005, the Central Propaganda
Department, GAPP, and SARFT jointly issued a set of
regulations requiring news reporting and editing
personnel to support the leadership of the Party, focus
on ``correct propaganda'' as their guiding principle,
and have a firm grasp of ``correct guidance of public
opinion.'' \49\
<bullet> In April 2005, SARFT issued rules requiring
radio and television reporters and editors to ``put
forth an effort to safeguard the interests and the
image of the nation,'' ``give priority to positive
propaganda,'' and ``carry out China's foreign
policies.'' \50\
Finally, in June 2005, the Hong Kong press reported that
Party propaganda officials had issued a directive restricting
``extra-territorial reporting,'' \51\ a practice in which a
domestic newspaper publishes a critical investigative report on
events in another area of China that local news media have been
prevented from reporting. A Chinese media professor called
extra-territorial reporting ``the best hope for liberalizing
the news media,'' and one report cited unnamed Chinese editors
and analysts as saying the ban had dealt a serious blow to
investigative reporting.\52\
In addition to cracking down on Web sites, journalists, and
extra-territorial reporting, Chinese authorities continue to
enforce and enact laws that impose extensive administrative
licensing requirements on all news media. As the number of news
publications in China has grown, so has the scope of government
regulation and repression:
<bullet> Between January and September 2004, Chinese
authorities had closed down and rescinded the
registrations of 642 news bureaus, deferred the
registration of 176 others, and prosecuted 73
illegally-established news bureaus.\53\
<bullet> In 2004, officials seized over 200 million
``illegal publications.'' \54\ A Commission review of
official Chinese reports shows that authorities seized
hundreds of thousands of these publications solely
because of their political content.\55\ The government
also sanctioned 73 organizations for illegally
``engaging in news activities,'' punished 213
publishers for ``violating regulations,'' and banned
170 publications because they had ``problematic topic
selections.'' \56\ Authorities also sanctioned 91 work
units as part of ``investigatory activities into map
propaganda products and imported map products.'' \57\
<bullet> In 2004 and 2005, Chinese authorities
undertook four campaigns to ban unauthorized newspapers
and magazines, shutting down 169 publications,\58\ and
formed a special working group to ensure that banned
newspapers did not reopen.\59\ A senior GAPP official
referred to the banned publications, which had titles
such as ``Prosperous China'' and ``Chinese and Foreign
Legal Systems,'' as ``the garbage of the cultural
industry.'' \60\
<bullet> In 2005, the GAPP issued a notice reminding
Chinese citizens that ``newspapers and magazines may
only be published by publishing work units approved by
publishing administration agencies,'' and informing
them that ``in order to safeguard China's periodical
publishing order, illegal foreign language publications
shall be banned in accordance with the law.'' \61\
China's leaders also strictly control who may publish
books and impose harsh regulatory and criminal penalties to
deter individuals from attempting to engage in private
publishing. The government requires that all books published in
China have serial numbers and that officials regulate who may
publish by exercising exclusive control of the distribution of
these numbers.\62\ In March 2005, new regulations became
effective that prohibit the publication, and allow the
confiscation, of any book that ``harms the honor of China,''
``propagates superstition,'' or ``disturbs social order.'' The
regulations also empower the GAPP to strip violators of their
authorization to publish.\63\ While these provisions are less
vague than those of the regulations they supersede, the new
language echoes provisions in China's national security laws
that is used to imprison journalists and authors.
Chinese authorities restrict the activities of foreign
journalists\64\ and try to prevent foreign news media from
investigating stories that might harm the image of the
government and the Party.\65\ These restrictions are designed
in part to protect the Party's image abroad, but the primary
concern is that Chinese citizens will learn information from
foreign news sources that is censored in China. According to
one GAPP official ``various enemy forces strongly coordinate
with each other, and take those things that cannot be published
domestically abroad to be published, and then these once again
infiltrate domestically.'' \66\ Recent examples of Chinese
authorities attempting to discourage the free flow of
information to and from China include:
<bullet> In September 2004, public security officials
detained Zhao Yan, a researcher for the New York Times,
for ``illegally providing state secrets to
foreigners.'' Sources said the ``state secret'' in
question was information that former President Jiang
Zemin had offered to resign from the Central Military
Commission. This fact was later reported in the
official press.\67\
<bullet> In October 2004, SARFT promulgated regulations
that allow the government to forbid the rebroadcasting
into China of information that has been previously
broadcast outside China by designating the broadcast's
content a state secret.\68\
<bullet> In April 2005, a Chinese court sentenced
journalist Shi Tao to 10 years imprisonment and two
years deprivation of political rights for ``illegally
providing top state secrets to overseas
organizations.'' According to Xinhua, the state secrets
consisted of information he learned at a meeting of the
editorial board of the newspaper at which he
worked.\69\
<bullet> Between April and August 2005, the Central
Propaganda Department and government media regulators
issued six opinions and regulations designed to
restrict foreign participation in China's media
market.\70\
The Chinese government continues to implement measures it
claims will allow citizens increased access to government
information. Officials say that initiatives such as requiring
government spokespersons to respond to press inquiries and
legal safeguards of journalists' right to investigate officials
prove that the government respects freedom of expression.\71\
The state-run media's discussion of the advantages of open
government is a positive development, but the measures adopted
by the government do not protect freedom of expression for
ordinary citizens. Instead, they impose a duty on a group that
speaks on behalf of the government (spokespersons) to be more
forthcoming with a group whose work may be censored by the
government (journalists). As noted above, the Party requires
editors to treat politically sensitive reporting as internal
(neibu) information and forward it to relevant officials rather
than publish it. Therefore, unless the government lifts current
restrictions on news reporting, the Party will be the primary
beneficiary of these measures, since the increased
responsiveness of spokespersons will allow Party officials to
better use journalists to monitor provincial and local
governments.
In 2004, the Commission noted that some news media in China
are being operated as commercial enterprises, and that the
government is allowing limited private and foreign
participation in some aspects of periodical and book production
and distribution. This trend continues,\72\ but Chinese
authorities say that these reforms are limited to ``cultural''
publications,\73\ and have moved to close loopholes that
foreign businesses had been using to provide radio, television,
film, periodical, and book content to China's citizens.\74\
Moreover, the Party will continue to have a leadership role in
enterprises with private investment,\75\ and Party officials
have no plans to relax editorial control over publishers\76\
and journalists.\77\
Although the Chinese government generally tightened
restrictions on expression and dissent over the past year,
officials continued to allow Chinese publications to report
selectively on corruption and other information that in
previous decades would have been deemed too embarrassing or
threatening to government or Party
officials. For example, during the Nie Shubin and She Xianglin
controversies [see Section III(b)--Rights of Criminal Suspects
and Defendants], Chinese news media published articles
criticizing problems in the criminal process and recommending
reforms to the criminal justice system as a whole. In another
example, the China Youth Daily published a strongly worded
report and editorial criticizing local officials in a Jiangxi
town for rounding up local indigents in violation of national
regulations and leaving them in a remote area in the middle of
winter.
China has a thriving underground publishing industry, and
banned books, such as the ``Survey of the Chinese Peasantry,''
are easily purchased from unlicensed publishers and
retailers.\78\ By forcing unlicensed publishers to become
criminals, however, the government is eroding respect for
intellectual property and rule of law, as these illegal
publishers are also de facto copyright violators (the illegal
works are ``pirated,'' since authors cannot collect royalties
on them) and must bribe corrupt officials in order to keep
operating.
Self-Censorship
Some of the government's restrictions on freedom of
expression, such as the prohibition on publishing news without
prior government authorization, are stated explicitly in laws.
Relevant laws and regulations, however, do not provide clear
guidance about what kind of political or religious expression
is illegal. For example, regulations prohibit publishing or
disseminating anything that ``harms the honor of China,'' but
no legislative or judicial guidance exists to guide publishers
as to what constitutes a violation of this prohibition.
Instead, Chinese authorities rely upon detaining writers,
indoctrinating publishers, and banning publications to
encourage companies, institutions, and individuals to
``choose'' not to use certain words or publicize certain views
that a government official might deem politically unacceptable.
According to the editor of a major Chinese magazine noted for
publishing critical articles without being shut down, ``[w]e go
up to the line--we might even push it. But we never cross it.''
\79\ Chinese citizens who cross the line and fail to censor
themselves are detained by public security officials or
dismissed from their jobs:
<bullet> Chinese authorities closed the prominent bi-
monthly diplomacy journal Strategy and Management in
September 2004 after it published an article strongly
criticizing the North Korean government and urging a
revised strategy in China-North Korea relations.\80\
<bullet> Also in September, authorities fired magazine
editor Xiao Weibin for publishing an interview with
former Guangdong Party leader Ren Zhongyi, wherein Ren
criticized the Chinese government for suppressing
freedom of expression.\81\
<bullet> After then-professor Jiao Guobiao published an
article on the Internet criticizing the Party Central
Propaganda Department's control over China's media,
Beijing University officials refused to allow him to
teach. They subsequently dismissed him after he went to
the United States ``without permission'' at the
invitation of the U.S. National Endowment for
Democracy.\82\
<bullet> After editor Cheng Yizhong's newspaper
published articles on SARS and government abuses of
people's civil rights, authorities detained Cheng for
five months without charges, dismissed him from his
job, expelled him from the Communist Party, and
prevented him from traveling abroad to receive the 2005
UNESCO/Guillermo Cano World Press Freedom Prize.\83\
<bullet> Government authorities suspended lawyer Guo
Guoting's license to practice law after he published
articles on the Internet advocating on behalf of his
clients, including Zheng Enchong, Shi Tao, Zhang Lin,
and Huang Jinqiu, whom Chinese authorities had
prosecuted for exercising their freedom of
expression.\84\
<bullet> Officials dismissed journalist Wang Guangze
from the 21st Century Business Herald after he returned
to China from the United States, where he gave a speech
at Trinity College entitled ``The Development and
Possible Trends of China's Political Ecology in Cyber
Times.'' \85\
Chinese journalists seem to be increasingly chafing at
government restrictions on press freedom. As an editor of one
of China's largest newspapers put it: ``Although one must
submit to controls, one must nevertheless try to achieve
something meaningful.'' \86\ In order to do so, however,
journalists and editors must adopt techniques to circumvent
government and Party censors. The aforementioned editor went on
to say:
When something cannot be criticized, the reporter
approaches it from a complimentary angle. They don't
write about accidents, they write about rescuing
people. They don't write about thieves running rampant,
they write about police heroism in capturing criminals.
When they cannot write news, they write editorials. If
they cannot discuss an issue in their locale, then they
approach the issue in the context of another place. In
the end, if they fail completely, they can always pass
on the story (or the actual report) to another media
[outlet], wait for them to publish it, and reprint the
story.\87\
Universities in China also censor themselves.\88\ In April
2005, the Shanghai Evening Post reported how Internet forums at
several universities ``used relatively strict supervision,
[and] set up specific screening mechanisms for harmful
information'' when anti-Japanese demonstrations were taking
place in several cities in China:
<bullet> Fudan University's ``Sun Moon Brilliance''
Internet forum was closed between midnight and 8 a.m.,
which, according to forum managers, made it more
difficult for ``harmful information'' to be posted on
the forum from outside the university.
<bullet> Shanghai Jiaotong University implemented 24-
hour monitoring and used ``technical means'' to
implement keyword filtering of its e-mail and Internet
forum systems.
<bullet> Shanghai Normal University's ``Lakeside
Contemplations'' Internet forum managers undertook 24-
hour monitoring, and took turns inspecting and
controlling the ``expression situation'' on the entire
Internet forum between April 15 and 17.\89\
Internet and software companies must either employ
censorship technologies in their products or risk a government
order to close. For example, although no Chinese law or
regulation forbids specific words, companies such as Tencent
and MSN embed a list of banned words and phrases, including
``freedom'' and ``democracy,'' in their Internet
applications.\90\ The China-based search engines of Yahoo! and
MSN filter results for searches relating to the Voice of
America, Radio Free Asia, and human rights. Google designed its
Chinese-language news aggregation service so that users in
China cannot view materials from dissident news Web sites that
Chinese authorities have blocked.
Monitoring, Jamming, and Blocking of Information
The government continues to restrict Chinese citizens'
access to political information from sources outside of China
that the government cannot control, influence, or censor. The
central government attempts to block radio broadcasts by Voice
of America, Radio Free Asia, and the BBC. China's laws restrict
satellite dish ownership,\91\ and regulations require foreign
news broadcasters to send all their satellite feeds through
government-controlled channels. Foreign newspapers may be
distributed only at foreign hotels and to ``authorized
subscribers.'' \92\ In October 2004, SARFT issued regulations
prohibiting joint ventures from producing programs on
``political news.'' \93\ In March 2005, SARFT issued an
interpretive notice on these regulations limiting foreign
companies to investing in a single joint venture, saying:
[W]e must control the contents of all products of
joint ventures in a practical manner, understand the
political inclinations and background of foreign joint
venture parties, and in this way prevent harmful
foreign ideology and culture from entering the realm of
our television program production through joint
investment and cooperation.\94\
Chinese officials seem especially concerned that Chinese
citizens may gain increased access to information on the
Internet that the Party and government cannot censor. In
January 2005, the official journal of the Party Central
Committee published an article calling on authorities to
``strengthen supervision of international Internet gateways;
filter out foreign, external Web sites that provide harmful
information that threatens state security, disrupts social
stability, and spreads obscene content; and adopt diplomatic
and legal measures to attack these Web sites.'' \95\ Chinese
agencies block the Web sites of many human rights, educational,
political, and news-gathering institutions without providing
public notice, explanation, or opportunity for appeal.
According to a study by researchers at Harvard University,
Cambridge University, and the University of Toronto, Chinese
authorities operate ``the most extensive, technologically
sophisticated, and broad-reaching system of Internet
filtering in the world'' to prevent access to ``sensitive''
religious or political material on the Internet. The report
also stated that
authorities utilize ``a complex series of laws and regulations
that control the access to and publication of material
online.'' \96\
Government monitoring is highly visible in its regulation
of Internet cafes:
<bullet> In January 2005, the city government of Jinan,
the capital of Shandong province, deployed a system
that allows monitors to view the information running on
any computer in the city's Internet cafes at any time.
The system is part of a ``cultural monitoring
platform'' established to monitor the online activity
of Internet cafe customers, which is capable of
monitoring the identity of the person registered to use
the computer and of filtering ``illegal Web sites.''
\97\
<bullet> In February 2005, the Ministry of Education
issued a notice requiring Internet forums at
universities around China to prohibit anonymous logins
from IP addresses outside the schools.\98\
<bullet> In March 2005, Xinhua reported that the Anhui
provincial government intended to implement a
``fingerprint recognition system'' in Internet
cafes.\99\
<bullet> In April 2005, Xinhua reported that 15
software companies in China had begun to develop
Internet monitoring platforms that would allow
government employees at remote locations to stop
Internet cafe customers from accessing specific Web
sites and determine precisely from which computer in
which Internet cafe the access attempt is being
made.\100\
In September 2005, a human rights NGO that focuses on
freedom of expression reported that Yahoo!'s Hong Kong
subsidiary had complied with a request from Chinese authorities
to furnish account information for the journalist Shi Tao.\101\
A Chinese court cited that information as one piece of evidence
used to convict Shi of disclosing state secrets to a
foreigner.\102\ Yahoo! responded that its local country sites
must operate within the laws, regulations and customs of the
country in which they are based.\103\
Political Detentions, Harassment, and Selectively Enforced National
Security Laws
Chinese officials continue to detain Chinese citizens who
criticize them and their policies, and the Committee to Protect
Journalists has dubbed China ``the world's leading jailer of
journalists.'' \104\ The Commission welcomes the release over
the past year of several political prisoners, but regrets that
during the same period Chinese security and judicial
authorities detained or imprisoned dozens of individuals for
exercising their right to peacefully express their political
beliefs.
The following list names some individuals that Chinese
authorities have detained and imprisoned during the past year
for exercising their constitutionally guaranteed freedom of
expression:
<bullet> Detained: Chen Min, Ching Cheong, Hu Jia, Li
Boguang, Li Guotao, Li Guozhu, Li Jinping, Liang
Yuling, Liu Xiaobo, Qi Zhiyong, Shen Yongmei, Wang
Qiaojuan, Wang Tingjin, Xu Zhengqing, Yan Zhengxue,
Yang Weiming, Yang Zheng, Yu Jie, Zhang Zuhua, Zhao
Yan, Zheng Peipei, Zheng Yichun.
<bullet> Imprisoned: Huang Jinqiu (aka Qing Shuijun),
Kong Youping, Ning Xianhua, Nurmemet Yasin, Shi Tao,
Zhang Lin, Zhang Ruquan, Zhang Zhengyao, Zheng Yichun.
Additional information on these cases and others is
available on the Commission's Political Prisoner Database [see
Section IV--Political Prisoner Database].
In addition to detaining and imprisoning those who speak
out against them, Chinese authorities continue to monitor
activists and order them not to speak to the press.\105\ An
illustrative case is the government's treatment of Dr. Jiang
Yanyong. Authorities detained Jiang in June 2004, and although
they released him the following month, for several months
afterward officials prohibited him from speaking with
reporters, traveling overseas, and attending activities at the
invitation of foreign groups or individuals.\106\ During the
visit of United Nations High Commissioner for Human Rights and
the eighth European Union-China Summit in late August and early
September 2005, Chinese authorities placed human rights
activists Liu Xiaobo, Zhang Zuhua, Liu Di, and Hu Jia under 24-
hour police surveillance\107\ and raided the offices of Chinese
Rights Defenders, an informal grouping of activists and
dissidents.\108\
III(f) Status of Women
FINDINGS
<bullet> The Chinese Constitution and laws provide for
the equal rights of women, and a network of women's
groups advocate to protect women's rights. Such groups
focus on providing education, protection, and legal
assistance to women.
<bullet> Chinese women have fewer employment
opportunities than men, and their educational levels
fall below those of men, but the government has
acknowledged these gender discrepancies and is taking
steps to promote women's interests. Chinese women face
increasing risks from HIV/AIDS as the disease moves
from high-risk groups dominated by men into the general
population.
<bullet> Trafficking of women and children in China
remains pervasive despite government efforts to build a
body of domestic law to address the problem. China's
population control policies exacerbate the trafficking
problem. China's poorest families, who often cannot
afford to pay the coercive fines that the government
assesses when it discovers an extra child, often sell
or give infants, particularly female infants, to
traffickers.
Laws and Institutions
The Chinese Constitution and laws provide for the equal
rights of women. Article 48 of the Constitution declares that
women are equal to men, and names women as a ``vulnerable
social group'' requiring special protection. As a result, the
government has passed a substantial body of protective
legislation, particularly in the area of labor law and
regulation. A U.S. scholar of women's issues in China argues
that protective regulations can work against women's interests,
however, since they may make employing women more expensive for
employers and give managers an incentive to lay off women
first.\1\ The Labor Insurance Regulations provide for the
retirement of women at a younger age than men. Some women in
China have urged that the retirement ages of men and women
should be made the same because the regulations put women at a
disadvantage by reducing women's effective working lives for
the purposes of wages and seniority.\2\
The National People's Congress (NPC) enacted the Law on the
Protection of Women's Rights and Interests (LPWRI) in 1992 to
``protect women's lawful rights and interests, and promote
equality between men and women.'' \3\ The 1992 law provided for
government action to protect women but did not permit women to
assert their own rights.\4\ In August 2005, the NPC Standing
Committee passed amendments to the LPWRI, including stronger
provisions requiring government entities at all levels to take
action against abuse of women's rights and giving women
assistance to assert their rights in court.\5\ The amended law,
to take effect in December 2005, also outlaws sexual
harassment, giving the victim the right to complain to her
employer, seek punishment by the police under administrative
punishment regulations, and bring a civil suit for damages.\6\
Passage of the amendments capped a month of high-level
attention to women, including the release of a white paper on
gender equality,\7\ an exhibition on women's progress,\8\ and a
conference commemorating the 1995 Fourth World Conference on
Women.\9\
Central government institutions that focus on women and
children, such as the State Council Working Committee on Women
and Children\10\ and the All-China Women's Federation
(ACWF),\11\ have been advocates for legal reform in the areas
of domestic violence, sexual harassment, and women's
education.\12\ The Working Committee recently developed the
State Council's Ten-Year Program for the Development of Chinese
Women (2001-2010), which focuses government attention on eight
areas, including women's education, health, and participation
in political and economic life.\13\ As a Party organization,
however, the ACWF is not able to effectively promote women's
interests when countervailing Party interests intervene. For
example, the ACWF has been silent about the abuses of Chinese
government population control policies and remains complicit in
coercive enforcement of birth limits.\14\
A number of independent women's NGOs have existed since the
early 1990s and a new women's movement seems to be growing.
Several Chinese women's organizations were founded in
conjunction with the 1995 World Conference on Women in Beijing,
including the Center for Women's Law Studies and Legal Services
at Beijing University, and the Maple Women's Psychological
Consulting Center. In April 2005, several Chinese women leaders
jointly founded the advocacy project Women's Watch--China.\15\
Trafficking of Women and Girls
Trafficking of women and children in China remains
pervasive. Traffickers are often linked to organized crime and
specialize in abducting infants and young children for adoption
and household service. They also abduct girls and women both
for the bridal market in China's poorest areas and for sale as
prostitutes. This is caused, in part, by the skewed sex ratios
growing out of China's population control policy [see Section
III(i)--Population Planning]. One Chinese scholar noted that
China's gender imbalance has created a flow of women from
ethnic areas into Han areas to meet the demand for women.\16\
Other aspects of China's population control policies
exacerbate the trafficking problem. China's poorest families,
who often cannot afford to pay the coercive ``social
compensation'' fine that the government assesses when it
discovers an extra child, often sell or give infants,
particularly female infants, to traffickers.\17\ When police
rescue them, many families do not come forward to claim their
children because they are afraid of both the police and local
family and population planning officials.\18\ Authorities place
some of these children in foster care, but many are eventually
assigned to government-run orphanages. In 2004, police
searching a bus found 28 newborn female infants who had been
acquired by hospital staff in Guangxi province and then taken
by middlemen to be sold in Henan and Anhui provinces.\19\
China has supported some international initiatives against
trafficking and built up a framework of domestic law to address
the problem.\20\ Chinese experts and officials have cooperated
with the Mekong Sub-Regional Project to Combat Trafficking in
Children and Women, founded by the International Labor
Organization, to reinforce the anti-trafficking provisions of
the ILO Worst Forms of Forced Labor Convention.\21\ In domestic
law, the 1997 revision of the Criminal Law abolished an older
provision on ``Trafficking in People'' and inserted one on
``Trafficking in Women and Children.'' \22\
Despite these government efforts, some 250,000 victims were
sold in China during 2003, according to UNICEF.\23\ Statistics
reported from the Fourth National Meeting on Women's and
Children's Work, held in August 2005, reveal that over 50,000
women and children were rescued by police in four years.
Together, these figures suggest that only about 5 percent of
victims are rescued by the police.\24\ Zhu Yantao, a Ministry
of Public Security official,
recently noted that ``with its huge population, China is likely
to
become the center of international human trafficking.'' \25\
Zhu explained that the prevalence of the crime in China is the
result of economic disparities between men and women that force
young rural women looking for work to move to the cities, where
they fall into the hands of traffickers.\26\
Gender Disparities
Chinese women have fewer employment opportunities than
men.\27\ Although women have a generally high rate of
participation in the work force, fewer women than men seek
opportunity and advancement in China's growing private
sector.\28\ To change this dynamic, the State Council's Women's
Development Program has proposed that women without jobs be
encouraged to work by offering them access to loans, land,
skills training, information, and equality of access to village
land contracts.\29\
The educational levels of Chinese women fall well below
those of men, according to a statistics cited by the State
Council.\30\ Although 99 percent of girls attend elementary
school and 95 percent enter lower middle school, according to
thise statistics, only 75 percent go on to higher middle
school. The UN Common Country Assessment for China 2004 reports
figures of 89.0, 88.3, and 80.2 for the ratio of girls to every
100 boys in primary, secondary, and tertiary education.\31\
Women comprise 70 percent of China's 85 million illiterates.
Improving equal access to education is one of the goals laid
out in the Ten-Year Program for the Development of Chinese
Women.\32\
Chinese women face increasing risks from HIV/AIDS. As HIV/
AIDS moves from high-risk groups dominated by men into the
general population, a larger percentage of those infected are
women. A U.S. study published in December 2004 predicted that
the proportion of HIV positive women in China would rise,\33\ a
prediction that official Chinese government news media
confirmed in 2005.\34\ Women's lack of access to education,
vulnerability to violence (especially in trafficking for the
sex trade), increasing participation in the migrant work force,
and increasing intravenous drug use all exacerbate this
trend.\35\
III(g) The Environment
FINDINGS
<bullet> The Chinese government promotes conservation,
recycling, and the use of renewable energy sources to
address environmental degradation and the depletion of
natural resources. Weak environmental laws, poor
enforcement, and small government budgets for
environmental protection hamper these efforts.
<bullet> The Chinese government promotes international
cooperation on environmental matters, and is receiving
foreign technical assistance for environmental projects
in China.
State of the Chinese Environment
Rapid development without effective environmental
safeguards has resulted in severe environmental degradation.
Poor soil and water conservation practices and government
inattention to polluting industries exacerbates these problems.
Many Chinese citizens suffer from respiratory diseases caused
by air pollution.\1\ Acid rain affects about one-third of the
country.\2\ Deforestation and erosion leading to loss of arable
land, landslides, and sedimentation of waterways are
widespread.\3\ Water pollution and poor conservation practices
have led to water shortages in many areas, leaving millions in
urban areas and one-third of the rural population without
access to clean drinking water.\4\
Government Response to Environmental Degradation
The Chinese government is pursuing sustainable development
domestically by encouraging recycling, conservation, and the
use of renewable energy resources.\5\ Externally, Chinese
officials favor international technology transfers and seek
cooperation with international environmental protection
agencies and groups.\6\ These are positive measures, but
Chinese authorities continue to overlook environmental
protection provisions already present in national development
plans,\7\ compounding problems with China's weak and poorly
enforced environmental laws.\8\ In June 2005, the State
Environmental Protection Administration (SEPA) identified a
number of continuing barriers to environmental protection in
China, including gaps in environmental legislation, the absence
of time limits for compliance, delays in issuing laws and
regulations governing administrative permits and environmental
inspections; a lack of provisions governing legal
responsibility for environmental violations, a single category
of administrative punishment for polluters specifying a
relatively small fine, and a lack of enforcement authority
among environmental protection departments.\9\
Despite these problems, SEPA has demonstrated an
inclination to enforce laws that may pit the agency against the
central government and Party leadership. In January 2005, SEPA
officials halted 30 construction projects for violating the
Environmental Impact Assessment (EIA) Law and ordered 46
polluting power plants to install desulphurization
equipment.\10\ Three of the 30 projects are managed by the
Three Gorges Development Corporation and are part of national
development plans promoted by the central leadership. The
projects were only halted for a short time, but SEPA's efforts
to enforce the EIA Law have continued.\11\
SEPA has taken other steps to improve China's environmental
legislation and environmental policymaking. SEPA has called for
revisions to China's environmental laws, including some
provisions that would increase the accountability of polluters
and government officials for environmental degradation\12\ and
would establish an environmental public interest prosecution
system.\13\ Some of these efforts have generated support within
the National People's Congress.\14\ In February 2005, SEPA
called for an environmental protection fund in the national
budget, citing insufficient investment as a hindrance to its
work.\15\ SEPA also announced that the
Chinese government will encourage foreign investment in
environmental protection.\16\ Finally, SEPA suggested
incorporating environmental issues into the evaluation of local
officials, and began a trial ``Green GDP'' program to include
the cost of environmental degradation in the calculation of
local GDP.\17\
Public Participation in Environmental Protection
SEPA has sought public support in environmental protection
work and has encouraged and supported environmental NGO
activism.\18\ In 2005, SEPA held a public hearing to encourage
citizen interest and NGO activism.\19\ Although the hearing
participants were pre-selected and pre-screened,\20\ the
promotion of citizen
involvement in government decisionmaking is an uncommon
phenomenon in China.\21\ The National People's Congress has
taken steps to consider expert opinion in drafting
environmental legislation.\22\ NGOs have provided expert
opinions on the drafting and revision of laws such as the
Renewable Resources Law.\23\
Chinese environmental NGOs are broadening their focus
beyond initial efforts at public education and awareness.\24\
In recent years, Chinese environmental groups have assisted
pollution
victims in pursuing redress through the legal system, lobbied
businesses to adopt energy efficiency codes, and mobilized
public participation in and support for environmental
protection.\25\
Official efforts during 2005 to impose greater control over
environmental NGOs is threatening to stifle environmental
activism. In May 2005, the Chinese government created the All-
China Environment Federation, a national federation of Chinese
environmental NGOs,\26\ asserting that the new organization
would ensure better cooperation on environmental matters
between government agencies. But the government compelling SEPA
and domestic NGOs to operate within a larger, state-controlled
organization may limit their ability to challenge central
government environmental or development policies [see Section
V(a)--The Development of Civil Society, for a discussion of the
role of mass organizations in Chinese society].
III(h) Public Health
FINDINGS
<bullet> The two greatest public health challenges
facing China today are infectious diseases and rural
poverty. The central government is taking steps to
improve the public health infrastructure in rural
areas, but China's poorest citizens lack preventive
healthcare, and weak implementation of laws that
provide for free vaccinations leave many adults and
children unprotected.
<bullet> Central government efforts to address China's
HIV/AIDS epidemic continue to expand and deepen, but
local governments often harass Chinese activists who
work on HIV/AIDS issues.
<bullet> Government controls inhibit the flow of
health-related information to the public, potentially
affecting public health in China as well as
international disease monitoring and response efforts.
Rural Poverty and Public Health
The central government is taking steps to address public
health issues associated with a crumbling rural health
infrastructure and rural poverty. During the 1980s, the
government abolished its previous rural healthcare system,
which was based on village clinics staffed by ``barefoot
doctors'' and financed by cooperative insurance. Central
government authorities, however, did not establish a substitute
system to replace the old healthcare regime. As a result, most
Chinese farmers could not afford the high cost of treatment.\1\
By 2002, the central government was encouraging the
formation of rural healthcare cooperatives,\2\ which receive
local government subsidies and cover the medical expenses of
any farmer who can pay a modest annual premium.\3\ The central
government established 12 rural medical cooperatives in
Liaoning province in early 2005,\4\ and provincial governments
announced similar programs at the same time in other areas of
China,\5\ including pilot programs in five cities and counties
in Sichuan province. By April, about 1.04 million farmers in
Sichuan had received reimbursement for medical expenses.\6\ The
success of this program has stimulated local government efforts
to build township medical centers that would provide a higher
level of healthcare after citizens exhaust the resources
available from local medical cooperatives.\7\
While these efforts at reconstructing the rural healthcare
system are promising, senior Chinese officials have
acknowledged that serious challenges remain. Critical
evaluations of China's healthcare system began to cascade into
the public view beginning in late July 2005, when Ge Yanfeng, a
senior State Council researcher, questioned the fairness and
efficiency of the medical and health system.\8\ The poorest
residents in rural areas frequently do not
enroll in the cooperatives because they cannot afford the
required fee. For participants, the cooperative plan covers
only between 30 and 40 percent of hospitalization costs,\9\
leaving many farming families in debt after serious illness. As
many as 50 percent of farmers who fall ill do not seek
healthcare for economic reasons, according to a number of
reports,\10\ and half of all children who die in rural areas
have not received medical treatment.\11\ Malnourishment among
rural children also remains a serious problem. As many as 29.3
percent of children in China's poorest areas may be
malnourished, according to one news account.\12\
Infectious Disease and Public Health
Among the results of underinvestment in healthcare has been
the persistence of diseases that require a coordinated and
long-term investment of funds and organization to control. One
such disease, tuberculosis (TB), is one of China's worst health
problems, with 4.5 million patients with active TB, 1.45
million newly diagnosed cases, and 130,000 deaths each
year.\13\ Some provinces have registered sharply rising rates
of TB, with the incidence in Zhejiang province, for example,
rising 30 percent in 2004 compared to 2003.\14\ A few provinces
have responded by instituting ``directly observed treatment
methods'' to fight the development of drug-
resistant disease when patients fail to pursue a full course of
treatment.\15\
Naturally occurring infectious diseases are a serious
threat in China, according to senior Chinese healthcare
experts.\16\ Despite strong reported immunization statistics
and the 2005 regulation on state-funded immunizations,\17\ the
child vaccination program as implemented has not been
effective, since several outbreaks of preventable diseases
occurred in 2005.\18\ The Ministry of Health (MOH) reported a
sharp rise in both cases and deaths from measles in the first
quarter of 2005.\19\ The Ministry concluded that the outbreak
resulted from the government's failure to address the health
problems of the migrant population and failure to vaccinate
with effective vaccines.\20\ Anhui statistics for the first
quarter of 2005 showed that one of the top five diseases
causing death was infant tetanus; routine postnatal and
pediatric vaccination can prevent this disease.\21\
China continues to have a high rate of Hepatitis B
infection, with one-third of the world's total reported 385
million chronic Hepatitis B carriers. Notwithstanding these
figures, only 70 percent of the population has been vaccinated
for the disease, according to a Chinese expert.\22\ At the same
time, the Chinese government has made progress since 2004 on
eliminating discrimination against Hepatitis B carriers in
government employment.\23\ The new Law on the Prevention and
Control of Infectious Diseases also prohibits discrimination
against carriers of infectious diseases.\24\
HIV/AIDS
The central government has become more active on HIV/AIDS
issues during the past year.\25\ In June 2005, Premier Wen
Jiabao chaired a State Council meeting on anti-AIDS work that
reinforced earlier decisions promising free antivirals to HIV
carriers, free anonymous testing, free medicine for pregnant
women, free schooling for the orphans of AIDS victims, and help
for families afflicted with AIDS.\26\ Premier Wen also
reiterated the need to ``protect the legitimate rights and
interests of HIV carriers and oppose discrimination against
them,'' as well as to educate them about their responsibility
to prevent further spread of the disease.\27\ Since late 2003,
the Central Party School in Beijing, which provides leadership
training for senior Communist Party cadres, has offered a
course on responding to HIV/AIDS. In September 2004, the State
Council HIV/AIDS Prevention Work Committee issued guidelines
making AIDS education mandatory for secondary and university
students in 2005.\28\
Several provinces and localities undertook new programs in
2005 to address HIV/AIDS-related public health problems. Hubei
province began a program in May 2005 to prevent accidental
occupational exposure to HIV.\29\ Programs to educate mid-
career officials about HIV/AIDS are growing after the Central
Party School held similar seminars for future Party
leaders.\30\ Yunnan province joined with two prestigious
universities to train senior provincial officials about drug
control and AIDS prevention,\31\ and Jiangxi province launched
an education campaign in May 2005 on AIDS and venereal disease
prevention.\32\ The Guangzhou city education department
released a regulation in January 2005 that promised free
education for all children affected by HIV, and guaranteed such
children confidentiality and protection against
discrimination.\33\ The central government has also taken steps
to support these local and provincial efforts. The MOH, for
example, began a program to disseminate AIDS prevention
information to high-risk groups such as intravenous drug users,
homosexuals, and prostitutes.\34\ In addition, in August 2004
the MOH and the National Development and Reform Commission
invested 230 million yuan in 1,004 mobile hospitals to reach
victims of HIV and other diseases in remote parts of China.\35\
Some local anti-AIDS initiatives, however, still show an
official tendency to address the problem by using coercive
measures.\36\ In Yunnan province, new rules require mandatory
annual HIV tests for people working in the entertainment
industry.\37\ The head of the provincial health department said
that such testing in 2004 had led to the detection of 13,000
HIV positive individuals, but the China coordinator for the UN
anti-AIDS program warned that mandatory testing can lead to
discrimination against those infected.\38\
Local government harassment of Chinese NGOs dealing with
HIV/AIDS has undermined efforts to combat the disease. A U.S.
NGO report described the violent closure of a privately-run
orphanage for children with AIDS in Henan province, and also
reported other incidents in which Henan officials and police
detained, beat, or otherwise obstructed Chinese activists
working on HIV issues.\39\ Another U.S. group reports that
local authorities in Henan province have organized militias to
prevent journalists and NGO observers from visiting AIDS
victims.\40\ Li Xiang, the Director of the Mangrove Support
Group, notes that cumbersome government regulations complicate
the work of Chinese NGOs working on AIDS.\41\
State Control of Information Relating to Health
The State Secrets Law and related regulations\42\ hinder
the free flow of information on public health matters both
within China and to the outside world. Some government agencies
have worked to improve the internal flow of information from
local governments to the center. In Jiangxi province, for
example, authorities built a system for county, town, and
township medical entities to make direct online reports to
higher authorities about health issues.\43\ Delayed and
inaccurate reporting by provincial authorities continues,
however, reflecting an official tendency to cover up health
problems and the outbreak of disease. Many local officials fear
that such news will discourage investment and affect local
economic growth, which remains the most important factor in the
annual performance evaluations of officials.\44\
Government control over the flow of information has
hampered an international effort to combat the spread of a new
strain of avian flu virus. In May, the Ministry of Agriculture
confirmed the first evidence of deaths of migratory birds in
Qinghai province, apparently from an avian flu virus, more than
two weeks after the initial deaths. In June, a U.S. newspaper
reported that Chinese officials were encouraging farmers to
protect their flocks by using amantadine, an antiviral drug
meant only for use in humans.\45\ Foreign scientists criticized
the Chinese government, saying that such use of antivirals
leads to resistant strains of the disease.\46\ A spokesman for
the Ministry of Agriculture denied encouraging the misuse of
amantadine,\47\ but he also announced that the Ministry would
send out inspection teams to check on the possibility that it
had been misused.\48\ The most recent assessments of dead birds
in Qinghai and Xinjiang reveal that the strains that killed the
birds are not yet resistant to the amantadine.\49\
In July 2005, the WHO and other international health
organizations complained that Chinese authorities had not
shared key
details about three outbreaks of avian flu in western China.
The information sought by these international bodies included
virus samples, genetic analysis, and information about the
extent of the outbreaks and Chinese government efforts to
contain them.\50\
III(i) Population Planning
FINDINGS
<bullet> The Chinese government continues its
population control policy, which is scheduled to
continue through the mid-21st century. Coercive fines
are the main enforcement mechanism, although reports of
local officials using physical coercion to ensure
compliance continue, even though this practice violates
Chinese law.
<bullet> The severe gender imbalance resulting from the
population control policy has grown worse over the past
two decades. The Chinese government has established a
commission to draft legislation to criminalize sex-
selective abortion.
The Chinese government continues to maintain a coercive
population control policy that violates internationally
recognized human rights standards in three ways. First, the
Population and Family Planning Law limits the number of
children that women may bear.\1\ Second, this law coerces
compliance by penalizing women who illegally bear a child with
a ``social compensation fee,'' a fine that often exceeds an
average family's annual income.\2\ Third,
although physical coercion to ensure compliance with population
control requirements is illegal in China, reports persist of
local officials using physical coercion to ensure compliance,
and in one case Chinese officials attempted to physically
coerce a visiting Hong Kong woman to have an abortion.\3\ In
December 2004, the International Relations Committee of the
U.S. House of Representatives heard credible testimony that
compliance with the Chinese government's population control
policy continues to be enforced through coercive fines and loss
of employment, as well as physical coercion including forced
abortion, forced sterilization, forced implants of
contraceptive devices, and other violent abuses against
pregnant women or their families.\4\ These abuses create an
atmosphere of fear in which most women feel they have little
choice but to comply.\5\
Local officials who fail to meet provincial and central
government birth rate targets face loss of bonuses and denial
of promotions. These practices implicate China's central and
provincial government in the abuse that occurs at the local
level. Physical coercion against women by local officials
seeking to meet population planning goals has continued over
the past year, according to credible reports.\6\ For example,
credible sources reported in August and September that
population planning officials in Linyi city, Shandong province,
administered forced abortions, sterilizations, prison
sentences, and beatings during the spring of 2005. A September
19 statement from a National Population and Family Planning
Commission official acknowledged that a preliminary
investigation had disclosed that ``some persons did commit
practices that violated law and infringed upon legitimate
rights and interests of citizens while conducting family
planning work. Currently the responsible persons have been
removed from their posts.\7\
Chinese citizens who publicly oppose the Chinese
government's population control policies also face possible
detention and abuse. Linyi officials abducted Chen Guangcheng,
who brought news media attention to the abuses there, in
Beijing and returned him forcibly to Linyi, where he allegedly
has been beaten and remains under house arrest.\8\ Mao
Hengfeng, who opposed the government's population control
policy and protested against it, was sentenced to 18 months of
re-education through labor in April 2004. Mao has been
protesting on her own behalf as well as for others since she
was dismissed from her job in Shanghai in 1988 for becoming
pregnant in contravention of the population control policy. She
reportedly was tortured in October and November 2004, and her
sentence was increased by three months in December 2004.\9\
Changes to Population Control Policy
Since its inception in the early 1980s, China's population
control policy has been adjusted periodically, as population
planners fine-tune local rules and quotas.\10\ Couples living
in cities have almost always been limited to one child, but
provincial officials have permitted exceptions in various
circumstances, such as for rural couples whose first child is
female.\11\ In the past year, the population control policy has
been under discussion again. Although some officials have
recommended moving toward a ``two-child policy,'' this proposal
seems unlikely to be adopted soon. Chinese officials have
emphasized that the government will continue to decide how many
children its citizens may have and when they may have them.\12\
At the same time, the government's population control
policy is already changing, chiefly as a result of impending
social crises caused by the policy itself. Since the early
1990s, ultrasound testing has been widely available in China,
and many parents determined to have sons have used it to
establish the sex of the fetus and to abort female fetuses. As
a result of this sex selection, the ratio of male to female
newborns is about 120:100 in China, and in many rural areas of
China the ratio is 130:100 or even 140:100.\13\ Experts
consider a ratio of about 105:100 to be normal. In addition,
since the introduction of the one child policy, the rate of
female infanticide and death of female infants due to neglect
appears to have risen sharply.\14\ The government has belatedly
attempted to address these problems in various ways. The 2002
Law on Population and Family Planning forbids prenatal sex
identification and sex-selective abortion, but imposes no
criminal penalties on parents or doctors and is widely
ignored.\15\ In January 2005 the government established a
commission to draft changes to the criminal law that will make
selective abortion a criminal offense.\16\ In a legislative
experiment intended to prevent sex-selective abortion, the city
of Guiyang banned all abortions after the 14th week of
pregnancy--before the point when ultrasound technology can
detect the sex of a fetus.
Second, the Chinese government has begun to move toward a
population control system that will financially reward
compliance, while continuing to punish non-compliance.\17\ In
2004, the government launched a pilot project granting a small
sum of money to rural couples over 60 years old who have only
one son or two daughters.\18\ Introduced in five provinces in
2004, the project is expected to be extended to 23 provinces by
the end of 2005 and to the entire country in 2006. Similarly,
in an ethnic Hui region of Ningxia province, the government
began a program to persuade Hui couples to have contraceptive
surgery after the birth of their first child, in exchange for a
financial reward.\19\ These changes
respond to the rapid aging of the Chinese population, another
consequence of the one-child policy. The Chinese government
estimates that the number of people 60 years and older in China
will grow from 7 percent of the population in 2005 to 11.8
percent in 2020, and that by the mid-21st century China will
have over 400 million people 65 years and older and more than
100 million people 80 years and older.\20\ Many of China's
elderly do not have a family member that can care for them and
few of them have pensions. The government has assured elderly
people that they will be cared for, but does not currently have
a system of social security and public services adequate to
this task and has not undertaken financial commitments on a
national level.\21\
Third, provinces and cities have been given the authority
to
authorize more second children, and many have used this
authority.\22\ Reacting to birthrates below the replacement
level, Shanghai and some other cities with particularly low
birth rates have permitted new categories of couples to have
second children and ended mandatory waiting periods between
children.\23\ Other cities, including Beijing, have maintained
the one-child policy.\24\ The Ministry of Education has lifted
the ban on marriage and childbearing for university
students.\25\
III(j) Freedom of Residence and Travel
FINDINGS
<bullet> National and local authorities are gradually
reforming China's household registration (hukou)
system. In 2005, central authorities took some steps
towards removing work restrictions on migrants in urban
areas, but hukou discrimination in public services
remains prevalent.
<bullet> Hukou reforms are enhancing the ability of
wealthy and educated citizens to choose their place of
permanent residence, but strict economic criteria often
exclude poor rural migrants living in urban areas,
preventing some of China's most vulnerable citizens
from receiving public services.
Hukou Reforms and Continuing Barriers to Migrants
Since the late 1990s, Chinese authorities have deepened and
expanded prior reforms to the hukou system, which since the
1950s has limited ordinary Chinese citizens' ability to change
their
permanent place of residence.\1\ These efforts have occurred
sporadically, most recently in 2001 and 2003-2004, and have
been followed by central directives to slow the pace of
change.\2\ Recent
reforms include relaxing previous limits on migration to small
towns and cities and streamlining hukou registration in some
provinces and large cities. Since late 2004, central
authorities have also taken steps to eliminate discriminatory
local regulations that limit urban employment prospects for
migrants.\3\
Reforms generally provide preferential hukou treatment for
the wealthy and educated, while maintaining significant
barriers against poor migrant workers. State Council directives
issued in 1997 and 2001 allow rural migrants to obtain local
hukou in small towns and cities, but require them to have a
``stable job or source of income'' and a ``fixed place of
residence.'' \4\ Provincial and municipal regulations enacted
since 2001 also contain these requirements.\5\ The definitions
of these terms often exclude low-income rural migrants. For
instance, Nanjing municipal regulations define ``stable place
of residence'' as private ownership of a house or residence.\6\
Hebei provincial regulations bar migrants who live in rented
apartments from receiving local hukou.\7\ Many local
regulations exclude poor workers with incomes under set
limits.\8\
Many provincial and municipal regulations grant local hukou
in urban areas based on educational or financial criteria.
Zhejiang province directs large and medium-size towns to grant
local hukou to individuals able to purchase homes of a certain
size or price. Those with higher educational levels enjoy
similar benefits.\9\ Chongqing municipality grants local hukou
to persons with a two-year college degree (dazhuan) or higher
who purchase a house or apartment that measures 30 square
meters or more.\10\ One city in Zhejiang province grants local
hukou to unskilled laborers only after five years of residence,
in addition to requiring a fixed residence and a stable source
of income, but applies no time limits to skilled and educated
individuals.\11\
Migrants who do not qualify for local hukou usually cannot
obtain public services on an equal basis with other
residents.\12\ In May 2005, the UN Committee on Economic,
Social and Cultural Rights registered:
deep concern [with] the de facto discrimination
against internal migrants in the fields of employment,
social security, health service, housing and education
that indirectly result[s], inter alia, from the
restrictive national household registration system
(hukou) which continues to be in place despite official
announcements regarding reforms.\13\
Such discrimination severely restricts migrant children's
access to education. The State Council has required local
governments to take responsibility for educating migrant
children.\14\ But some local governments require children who
hold non-local hukou to be educated in their place of hukou
registration rather than their place of actual residence, even
if this requires them to be separated from their parents.\15\
Both national and local regulations permit schools to charge
additional educational fees to migrant children lacking local
hukou.\16\ Government schedules often set these fees at several
hundred yuan per semester, which is a large part of the average
migrant's annual earnings.\17\ Many public schools levy
additional unauthorized charges that can total several thousand
yuan per year.\18\ Some Chinese officials have made laudable
efforts to curb such practices.\19\ Efforts by migrants to
establish private schools to educate their children continue to
face local opposition in many cities.\20\
Practical Impact of Reform
Income and home ownership criteria limit the practical
impact of recent hukou reforms. In the city of Ningbo in
Zhejiang province, officials expect only 30,000 people out of a
total migrant population of 2 million to meet the stable income
and permanent residence requirements set in 2001 for obtaining
a local urban hukou.\21\ After similar reforms in Shijiazhuang
city in Hebei province, only 11,000 applicants out of a total
migrant population of 300,000 migrant workers filed
applications.\22\ Municipal plans to grant local hukou on the
basis of investment criteria are even more limited in impact.
More than two months after implementation began of Beijing's
2001 reforms granting local hukou to wealthy investors, only
one person applied who could meet the requirements.\23\
Local government officials often portray reforms as
eliminating hukou discrimination because they have ended
distinctions between different hukou types.\24\ For example,
Jiangsu province announced in March 2003 that it planned to end
the labeling of hukous as agricultural and non-agricultural,
thereby ``breaking'' urban-rural divisions.\25\ Similar reforms
have been announced in other provinces.\26\ These changes do
not abolish hukou identification entirely, however. They leave
intact the remaining element of hukou identification:
registration by permanent residence. Migrants must still
satisfy the criteria set by local authorities to obtain a local
hukou in a given urban area.
Government Measures To Address Abuse of Migrants
Chinese authorities have adopted a variety of measures to
address abuse of migrants. Some measures reflect public concern
with police abuses.\27\ In 2003, after the death of a young
migrant in police custody sparked a national outcry, the State
Council abolished the coercive custody and repatriation system
often used to detain unregistered migrants.\28\ In Hangzhou
city in Zhejiang province, the public security bureau announced
an end to mass dragnet sweeps conducted to round up
undocumented migrants.\29\ In Shenyang, police announced the
elimination of the temporary residence permit system and all
associated fees (reducing the ability of police to extort
additional payments from migrants) in favor of an automatic
``sign-in'' registration system for migrants arriving in the
city.\30\ Chinese authorities have also taken steps to
eliminate work restrictions that discriminate against migrants.
In December 2004, the State Council issued a directive to
eliminate discriminatory measures that limit employment
prospects for migrants in urban areas.\31\ In early 2005, the
Beijing municipal government followed suit, abolishing long-
standing regulations that prohibited renting apartments and
office space to migrants and excluded them from certain
occupations.\32\ Although scholars and citizens have called for
more comprehensive legislation to protect the rights of
migrants, Chinese officials have so far taken no concrete steps
to
respond to these demands.\33\
IV. Political Prisoner Database
The CECC Political Prisoner Database (PPD) is a unique and
powerful resource that became globally accessible via the
Internet in November 2004. The PPD is designed to serve as a
tool for individuals, educational institutions, NGOs, and
governments that wish to research political and religious
imprisonment in China or advocate on behalf of prisoners.
During the PPD's first eight months of operation, about one-
third of the requests for prisoner information originated from
government Internet domains (.gov).
The PPD is designed to allow anyone with Internet access to
query the database and download prisoner data without providing
personal information. Users have the option to create a user
account, which allows them to save, edit, or reuse queries. A
user-specified ID and password is the only information required
to set up a user account. The PPD does not download or install
any software or Web cookies to a user's computer.
The PPD allows users to conduct queries on 19 types of
prisoner information. Users may search for prisoners by name,
using either the Roman alphabet or Chinese characters. Users
may construct queries to include personal information (ethnic
group, sex, age,
occupation, religion), or information about imprisonment
(current status of detention, place of detention, prison name,
length of sentence, legal process).
Each prisoner's record describes the type of human rights
abuse by Chinese authorities that led to his or her detention.
These abuses include violations of freedom of speech, religion,
and association, for example, as well as issues related to
democracy, labor rights, and ethnicity. Each record includes a
short summary of the case. Users may download information about
prisoners from the PPD as Adobe Acrobat files or Microsoft
Excel spreadsheets.
As of September 2005, the PPD contained more than 3,600
records of political and religious imprisonment in China. The
Dui Hua Foundation, based in San Francisco, and the Tibet
Information Network, based in London, shared their extensive
experience and data on political and religious prisoners in
China with the Commission to help establish the database. The
Commission also relies on its own staff research for prisoner
information, as well as on information provided by other NGOs
and groups that specialize in promoting human rights and
opposing political imprisonment.
Commission staff regularly updates the information in the
PPD. The Commission staff also works to upgrade the PPD
software periodically, to improve performance, and to provide
PPD users with access to more data.
The PPD is accessible on the Internet at http://
ppd.cecc.gov. The Commission Web site contains instructions on
how to use the PPD.
V. Development of the Rule of Law and the Institutions of Democratic
Governance
V(a) The Development of Civil Society
FINDINGS
<bullet> Chinese non-profit associations and
organizations are growing in number and engaging in
valuable educational work and issue advocacy. While
some ministries and local governments support these
groups, some high-level leaders consider the emergence
of an independent civil society a threat to government
and party control.
<bullet> Central authorities use regulations to limit
and control the development of civil society in China,
forcing many groups to remain unregistered or operate
underground. In 2005, Chinese authorities moved to
curtail the activities of international and domestic
civil society organizations, particularly environmental
groups that challenged government policies.
Civil Society Activism and Government Controls
Chinese civil society organizations are growing in number
and engaging in valuable educational work, social welfare
service provision, and issue advocacy.\1\ These groups include
national mass organizations that Party authorities created and
fund, smaller citizen associations registered under national
regulations, and loose networks of unregistered grassroots
organizations.\2\ Civil society organizations have been
particularly active in environmental protection and HIV/AIDS
work, issues on which the Chinese government has been more
tolerant of nongovernmental activity in recent years.\3\ For
example, civil society groups operate orphanages for the
children of AIDS victims, run Web sites disseminating
information on AIDS to at-risk groups, and advocate on behalf
of HIV-positive
individuals.\4\
A restrictive regulatory environment continues to hamper
the development of Chinese civil society. National regulations
require that non-governmental organizations have a government-
approved ``sponsor organization'' to register.\5\ Official
Chinese sources indicate that only designated Party and
government bureaus and mass organizations may sponsor non-
governmental organizations.\6\ Chinese scholars and prominent
Chinese civil society organizations have criticized this
requirement.\7\ As the director of the Qinghua University NGO
research institute noted, ``China has 3 million social
organizations, but only 280,000 are registered. Why? Because
the sponsor requirement is too strict, most social
organizations can't find sponsors.'' \8\ As a result, many
citizen groups ignore the registration requirements. According
to one academic survey, only 22 percent of organizations to
which rural residents belong are formally registered.\9\ In
practice, unregistered groups generally experience little or no
government interference as long as they avoid
financial misdeeds or overt political challenges.\10\ Chinese
citizens, however, cite difficulties in registering as a
significant obstacle to establishing even relatively
nonpolitical, civic-minded organizations, such as those
directed at helping Beijing prepare for the 2008 Olympics.\11\
Central authorities have long tried to keep civil society
organizations under tight official control, but some Chinese
officials support reducing restrictions and allowing them to
play a more active social and political role. Both the Ministry
of Civil Affairs (MOCA) and the State Environmental Protection
Agency have been particularly supportive of civil society
organizations.\12\ MOCA officials have suggested publicly that
the sponsorship requirement should be eliminated and have
submitted multiple draft civil society regulations to the State
Council that would remove it. The State Council, however, has
rejected these proposals.\13\ Chinese news reports suggest that
upcoming revisions to the 1998 regulations on social
organizations will liberalize current rules somewhat, but will
not change the sponsor organization requirement.\14\
National and local authorities also sometimes disagree on
how to manage civil society organizations. In 2004, Zhejiang
provincial
authorities passed a relatively liberal set of rules governing
the operation of farmers' cooperatives. These rules do not
require cooperatives to have a sponsor organization to
register.\15\ The Zhejiang rules appear to conflict with
national guidelines that require local government bureaus to
sponsor farmers' cooperatives and call for a greater degree of
official supervision over the cooperatives.\16\ Whether local
experiments such as Zhejiang province's will be successful when
they conflict with national policies is unclear, as other local
efforts to liberalize registration requirements for farmers'
cooperatives have run into problems with banks and tax bureaus
because of their ambiguous status.\17\
Individual civil society organizations and activists risk
official retaliation when they directly challenge government
decisions. In March, Chinese authorities ordered the Beijing
AIDS Institute of Health Education, a registered non-
governmental organization, to eliminate the terms ``Health
Education'' and ``AIDS'' from its name or be closed. Institute
sources voiced concern that this order would affect the group's
financial operations and limit its AIDS prevention efforts.
Although officials asserted that the terms violated NGO naming
rules, they issued the order a week after the Institute
released a report alleging that government plans for using
international AIDS funds lacked adequate public participation
and representative patient sampling.\18\ Similarly, local
authorities in Henan province detained and arrested AIDS
activists who criticized local government actions and attempted
to contact higher-level government authorities.\19\
Structural problems also affect Chinese civil society
groups. Many remain dependent on foreign funding, which can
amount to over 90 percent of the budget of some
organizations.\20\ China's civil society organizations are tax-
exempt in theory, but the absence of implementing regulations
hinders their ability to raise funds.\21\ Local government
agencies also seeking to raise money sometimes compete with
revenue-generating civil society organizations for the same
sources of funding.\22\ Chinese civil society groups generally
have a weak capacity for self-governance.\23\
2005: Central Government Effort to Curtail Civil Society
In early 2005, senior Chinese leaders mounted a wide effort
to curtail activist civil society organizations. Articles in
academic journals linked to the State Council pressed officials
to prevent ``Western countries from carrying out infiltration
and sabotage of China through political NGOs.'' \24\
International NGOs with U.S. ties have experienced more
government interference in recent months.\25\ Editorials in the
state-sponsored press stressed the need for civil society
organizations to carry out Party policies and ideology.\26\
Central authorities ordered certain social science research
groups that had attempted to operate outside of regular
controls by registering as for-profit companies to reregister
with MOCA or be closed.\27\
In April 2005, top Chinese leaders established the All-
China Environment Federation (ACEF), a state-run alliance of
civil society organizations controlled by current and former
government officials. Official reports indicate that the ACEF
is aimed at ensuring better cooperation between ministries on
environmental issues and offering regular channels for Chinese
civil society organizations to provide policy input.\28\
Nevertheless, the ACEF resembles traditional mass
organizations, such as the All-China Women's Federation or the
All-China Federation of Trade Unions, that Chinese leaders use
to co-opt and regulate social groups that might challenge Party
control. Chinese environmental activists state that the
government has pressured them to join the ACEF and pay
mandatory dues. They also state that many regard the move as an
attempt to restrict the growing activism of environmental
organizations.\29\
V(b) Legal Restraints on State Power
FINDINGS
<bullet> The Chinese government has affirmed the right
of citizens to petition the National People's Congress
Standing Committee for review of regulations that
violate the Constitution or national law. The effect of
this right remains limited, however, since Chinese
citizens have no right to compel such review or to
challenge the constitutionality of government actions.
<bullet> Constitutional enforcement remains a
politically sensitive topic in China, and the near-term
prospects for the establishment of a more robust
constitutional enforcement mechanism are remote. The
Chinese government has ruled out establishing a
constitutional court or giving people's courts the
power to review the constitutionality of laws and
regulations.
<bullet> The Chinese government has enacted laws to
curb administrative abuses, but Chinese officials
retain significant administrative discretion. Existing
legal mechanisms provide only
limited checks on arbitrary or unlawful government
actions.
Constitutional Enforcement
Over the past year, Chinese leaders continued to emphasize
the importance of the Constitution, but focused primarily on
constitutional study and government-supervised implementation
measures. In his annual report in March 2005, for example, Wu
Bangguo, Chairman of the National People's Congress Standing
Committee (NPCSC), stressed the importance of implementing and
studying the Constitution.\1\ In December 2004, authorities
made constitutional consciousness the subject of a national
legal awareness day.\2\ Government statements stressed the
significance of March 2004 constitutional amendments, which
included a new provision stating explicitly that ``the State
respects and safeguards human rights.'' Official statements
also highlighted legislation and rectification campaigns
designed to implement these amendments.\3\
The Chinese government has affirmed the right of citizens
to petition the NPCSC for review of regulations that conflict
with the Constitution and national law. Under the Constitution,
the power of constitutional enforcement rests with the
NPCSC.\4\ Chinese experts have long criticized the NPCSC for
failing to exercise this function.\5\ In 2004, the NPCSC
announced the formation of a new office to assist it in
reviewing regulations that conflict with the Constitution and
national law.\6\ An NPC official publicly confirmed in December
2004 that citizens have the right to petition the office for
review of regulations.\7\ Official news media published
accounts of at least one such petition and encouraged citizens
to submit petitions in other cases.\8\
To date, however, the practical impact of the right to
petition for NPCSC review remains limited. As one Chinese legal
expert notes, the office is only empowered to make
recommendations to the NPCSC;\9\ it is not required to act on
citizen petitions, and citizens have no power to request review
of ``unconstitutional acts'' by officials or laws passed by the
NPC.\10\ Whether the office has a set of review procedures in
place or has yet taken any formal action to invalidate a
regulation is unclear. One Commission source suggests that in
several cases, the NPCSC has worked behind the scenes to have
inconsistent local regulations repealed, perhaps to avoid
publicly embarrassing local authorities with a formal
decision.\11\
Chinese courts do not have the power either to apply
constitutional provisions in the absence of concrete
implementing legislation or to strike down laws or regulations
that are inconsistent with the Constitution.\12\ In recent
years, however, lawyers have worked to establish case
precedents for judicial application of constitutional
principles by incorporating constitutional arguments into legal
cases.\13\ At a Commission hearing in 2005, a respected
American expert on Chinese law suggested that even if the NPCSC
is unwilling to permit Chinese courts to review the validity of
laws or regulations, courts could be given the power to apply
constitutional provisions in settling disputes related to
administrative or private actions.\14\
Reform-minded scholars and lawyers continued to raise
constitutional issues in Chinese courts over the past year. In
November 2004, the All-China Lawyer's Association announced the
formation of a Constitutional and Human Rights Committee to
research constitutional implementation, train lawyers, and
``use individual cases to help promote China's constitutional
litigation.'' \15\ One such case arose in April 2005, when two
Henan lawyers cited constitutional protections in a lawsuit
they filed against the Shenzhen public security bureau. The
bureau had posted a banner encouraging Shenzhen residents to
report on ``Henan'' criminals, an act the plaintiffs argued was
discriminatory.\16\ Constitutional arguments were raised in
other cases as well.\17\ Although efforts to encourage courts
to apply constitutional principles in specific cases have been
largely unsuccessful, lawyers also promoted efforts to
incorporate constitutional protections into national laws,
which courts are permitted to apply in their decisions.\18\
Prospects appear remote for the establishment of a more
robust constitutional enforcement mechanism in the near term.
Constitutional enforcement remains a sensitive topic, and
senior Party leaders have warned officials to guard against
efforts to promote Western-style constitutional reform.\19\ In
December 2004, the government ruled out establishing a
constitutional court or some other mechanism for judicial
review of the constitutionality of laws and official acts and
stated that the Constitution is not a basis for litigation.\20\
Although scholars continued to study constitutional enforcement
and held several conferences on the issue, authorities forced
the cancellation of an international conference on
constitutionalism and human rights in May 2005.\21\ In April
2005, authorities also shut down a Beijing consultancy that
planned to assist citizens in enforcing their human rights.\22\
Chinese scholars suggest that if the government introduces any
new constitutional enforcement mechanism in the near-term, it
is most likely to be a special constitutional enforcement
commission under the National People's
Congress.\23\
Administrative Litigation and State Compensation
China's 1989 Administrative Litigation Law (ALL) and 1994
State Compensation Law (SCL) provide citizens with limited
checks on arbitrary government action, but growth in the number
of cases brought under the two laws appears to be leveling off.
The ALL gives Chinese citizens the right to file lawsuits to
challenge ``concrete'' administrative acts that violate their
lawful rights and interests.\24\ The SCL provides citizens with
the right to obtain compensation in a limited number of
situations in which administrative or criminal justice agencies
engage in illegal conduct.\25\ After reaching a peak of 98,759
cases in 1999, the number of administrative lawsuits handled in
Chinese courts has fluctuated and declined slightly since 2000,
with courts handling 92,192 cases in 2004.\26\ The number of
SCL cases handled by people's courts has remained low and
leveled off at about 3,000 cases per year.\27\ Over the same
period, the number of citizen petitions and social protests has
grown considerably.\28\ In comparison to the more than 11
million citizen petitions filed in 2003 [see Section V(e)--
Access to Justice], the number of ALL and SCL claims is
relatively small.
The limited scope of the ALL and SCL and official
resistance to both laws have limited their practical utility.
The ALL only applies to ``concrete'' administrative decisions,
not government-issued directives or rules, while compensation
standards under the SCL remain rigid and the amounts awarded
are small.\29\ Chinese sources also cite complicated
procedures, legal loopholes that facilitate official resistance
to claims, the failure of administrative defendants to attend
trials, administrative interference with the courts, and
citizen fears of official retribution as problems that
undermine the effectiveness of both laws.\30\ In a November
2004 article, China Youth Online noted that citizen plaintiffs
won about 21 percent of the administrative cases filed in the
first nine months of 2004, but suggested that success rates
should be higher because most citizens are cautious about suing
officials.\31\ In the case of the SCL, plaintiffs have
reportedly won compensation in about one-third of the state
compensation cases that people's courts have adjudicated since
1995.\32\ Several Chinese reports demonstrate that government
departments often refuse to honor compensation awards, however,
with one commentator concluding that the SCL ``sounds good but
is of no use.'' \33\ The Chinese government is considering
amendments to both laws that may address some of these
concerns.\34\
Additional Administrative Law Developments
China's Administrative Licensing Law (Licensing Law) has
created new legal limits on administrative discretion. The
Licensing Law, which came into effect in July 2004, is intended
to improve administrative efficiency and curb corruption by
controlling the number of administrative agencies with
licensing power. The law also limits the matters subject to
licensing requirements, clarifies and enhances the transparency
of licensing procedures, and provides time limits within which
authorities must act on licenses.\35\ Official news media have
argued that the Licensing Law is a significant step toward the
rule of law, declaring that it ``prompted the government to
start a revolution with respect to limiting its authority and
protecting private rights.'' \36\ In March 2005, the People's
Daily reported that the State Council had canceled or rectified
more than 1,795 administrative licenses since the Licensing Law
became effective.\37\ Although the law is potentially a
significant development in limiting bureaucratic discretion,
most of its enforcement provisions emphasize government
supervision and inspection, rather than citizen enforcement
through the courts.\38\
The Chinese government continues to work on a comprehensive
Administrative Procedure Act (APA), but the law appears to be
mired in drafting debates.\39\ The APA would be the first
comprehensive national law on administrative procedure and is
expected to fill gaps in China's existing administrative law
framework. Drafts of the law have been under consideration for
several years.\40\ The law was not included in the 2005
legislative plan for the NPC, however, and sources with
knowledge of the drafting process suggest that it could be
several years before it is enacted.\41\
Implications of Developing Legal Constraints on State Power
The Chinese government has placed heavy rhetorical emphasis
on respect for the Constitution and ``administration according
to law,'' \42\ and some of the laws and policies described
above are positive steps toward these goals. Government
officials retain enormous discretion, however, and existing
legal mechanisms neither permit Chinese citizens to enforce
their constitutional rights nor provide a consistent and
reliable check on arbitrary administrative acts. Given such
problems and the limited independence of Chinese courts [see
Section V(c)--China's Judicial System], prospects are limited
for the development of true legal restraints on state power.
V(c) China's Judicial System
FINDINGS
<bullet> Chinese judicial officials announced ambitious
reform goals in 2005 that would address structural
problems affecting the Chinese judiciary. These include
changes to court adjudication committees, the system of
people's assessors, and judicial review of death
penalty cases.
<bullet> Communist Party authorities and local
governments continue to limit the independence of
China's courts. Internal
administrative practices of Chinese courts also
compromise judicial efficacy and independence.
<bullet> The Chinese judiciary has improved the
educational level of Chinese judges and the quality of
their judicial opinions. Rural courts, however, are
rapidly losing judges to urban areas.
Plans for Ongoing Reform
Judicial reform plans that Chinese authorities currently
are considering appear to be aimed at addressing a range of
structural problems in the Chinese judiciary. Recent efforts by
senior Chinese leaders to tighten social and political control
raise questions about whether these plans will actually be
implemented.\1\ An important test of official intent to reform
the judiciary in a meaningful way will be whether the Supreme
People's Court (SPC) Five-Year Plan for court reform, which has
yet to be released, includes details on how to implement the
reforms discussed below.
In 2005, Chinese court authorities set out a framework for
continuing judicial reform.\2\ According to both the SPC work
report and media reports on the contents of the draft SPC Five-
Year Plan (2005-10), reform goals include:
<bullet> Changes to judicial review of death penalty
cases. Chinese officials and domestic sources indicate
that the government has already decided to return the
power of reviewing all death penalty decisions to the
SPC [see Section III(b)--Rights of Criminal Suspects
and Defendants].
<bullet> Revisions to the court adjudication committee
system. Judicial authorities are considering structural
reforms to the system of court adjudication committees.
These committees of court presidents and other
administrative personnel are the highest authority in
Chinese courts, but their practices challenge
principles of judicial independence. They often are the
vehicle for outside pressure to reverse decisions in
individual cases, for court officials to overrule the
decisions of trial judges, or for trial judges to seek
internal advisory review of cases before them.
Officials and scholars currently are divided over
different plans for reforming these committees.\3\
<bullet> Changes to rehearing procedures. Rehearing
procedures permit courts and adjudication committees to
reopen and review final decisions with few practical
limits.\4\ Extensive use of rehearing procedures
undermines the finality of court decisions.\5\ Proposed
reforms may limit the number of times a case may be
reviewed, but may also make it easier for parties to
request a rehearing.\6\
<bullet> Strengthening the people's assessor system. In
May, an SPC directive entered into force regularizing
the practice of using ordinary citizens selected by
court personnel to participate in court hearings. The
directive clarifies that these laypersons enjoy the
same powers as judges, including determining the facts
and interpreting the law. Chinese authorities promote
this practice as an anti-corruption device allowing
popular supervision of the judiciary.\7\
<bullet> Regularizing the use of forensic
determinations and expert testimony. A National
People's Congress decision issued in February 2005 bars
courts and justice bureaus from establishing for-profit
forensics centers to provide expert testimony.\8\ This
practice has raised substantial ethical and legal
questions concerning the fairness of trials.\9\ Many
Chinese courts, however, commonly depend on the revenue
generated by these centers to support their
operations.\10\
Party interests continue to influence judicial reforms. For
example, Ministry of Justice efforts to strengthen the role of
local judicial bureaus in resolving local disputes are directly
linked to the Party's ``harmonious society'' campaign aimed at
reducing social unrest.\11\ In December 2004, two well-known
legal scholars gave unusually candid public interviews about
judicial reform proposals they had prepared at the SPC's
request. The scholars noted the expansive nature of their
proposals, which included guaranteeing independence for Chinese
judges in deciding cases and forbidding court officials and
adjudication committees to interfere in trial judge
deliberation.\12\ Despite having commissioned the proposals,
the SPC publicly distanced itself from the authors and
criticized them.\13\ The People's Daily noted that the
``Supreme People's Court has ruled out the scenario of radical
judicial reform in the short term.'' \14\ These responses
suggest that judicial authorities remain wary of creating
perceptions that they are trying to ``Westernize'' China and
are being careful to curtail excessively independent
reform efforts.\15\
Growing Professionalism, But Continuing Structural Problems
The Chinese judiciary continues to improve the educational
levels of judges and the quality of their judicial opinions.
According to SPC statistics, about 40 percent of Chinese judges
had earned a 4-year university degree in 2003, a 21 percent
increase since 1998.\16\ Pursuant to SPC directives, local
courts continue to experiment with publishing their decisions
online and providing statements of legal reasoning supporting
their decisions.\17\ Central
government efforts to compel rural courts to meet national
standards for judicial qualifications and a wide gap in
judicial salaries between rich urban areas and poor rural ones
have weakened rural courts. Rural courts are losing talented
judges to urban areas and facing difficulties hiring new ones,
leading to the aging and thinning of the ranks of the rural
judiciary.\18\
Chinese judges are subject to external interference that
limits their independence. Local governments influence courts
through their control over judicial funding and appointments,
and frequently use this influence to protect local
interests.\19\ Party authorities often intervene in politically
sensitive cases and routinely screen court personnel
decisions.\20\ Since the early 1990s, local
people's congresses have exercised increasing influence over
court decisions.\21\ Public opinion is an increasing source of
pressure on Chinese courts, through sensationalistic media
reporting on cases.\22\
Internal administrative practices commonly used in Chinese
courts also reduce judicial effectiveness and independence.
Chinese courts frequently evaluate judicial efficiency and
assign bonuses or sanctions by using ``case closure ratios''--
the ratio of closed to filed cases during a given year.\23\ To
generate high ratios, Chinese courts often resort to
unscrupulous means, including pressuring parties to agree to
mediated outcomes and refusing to accept cases filed late in
the year. Court responsibility systems discipline judges for a
range of errors, including appellate reversals for legal error.
Punishments include criticism, fines, limited career prospects,
and criminal sanctions.\24\ These systems encourage judges to
rely on internal advisory requests (qingshi) to ask for advance
guidance from higher court authorities about how to decide
cases in order to avoid punishment.\25\ As both Chinese
officials and scholars have noted, this practice harms judicial
fairness by separating actual court decisions from trials, and
by making subsequent appeals (to the same entity that responded
to the request for review) a formality.\26\
V(d) Democratic Governance and Legislative Reform
FINDINGS
<bullet> China has an authoritarian political system
controlled by the Communist Party. Party organizations
formulate all major state policies before the
government implements them. The Party dominates Chinese
legislative bodies such as the National People's
Congress and fills important government positions at
all levels by an internal selection process. China
lacks meaningful elections for significant political
positions.
<bullet> Chinese authorities have introduced limited
elements of political participation at the lowest
levels of government to enhance their ability to
govern. These elements include direct elections for
village and residents committees, local people's
congress elections, and some popular input into the
selection of low-level government and Party officials.
The Party controls these selection and electoral
processes by screening, and often selecting, the
candidates.
<bullet> Chinese citizens are attempting to use the
limited political space created by official reforms to
protect their rights and interests, but Party officials
and local governments often suppress these efforts,
leading to social unrest.
Introduction
Since the 1980s, Chinese leaders have introduced and
pursued limited policies to encourage popular participation in
local political institutions. These include village and
residents' committees (VCs, RCs), local people's congresses
(LPCs), and various systems allowing some popular input into
the selection of lower-level government and Party officials.
Chinese leaders introduced these reforms to enhance the Party's
ability to govern, limit the power of individual cadres, and
improve China's international image, among other policy
goals.\1\ Such reforms partially check the behavior of local
officials, since they must consider public opinion in addition
to the demands of their superiors.\2\
The Party has refused, however, to compromise the principle
of Party control over all key political institutions and
policies. Central authorities also suppress local reforms that
cross boundaries that they have set, such as direct popular
elections for township government leaders.\39\ Party officials
channel political participation into outlets that the Party can
monitor and control.\4\ Without free and open public
participation, implementation of certain reforms remains
piecemeal and pro forma.\5\
The Party has initiated these political reforms to
strengthen Party rule by co-opting popular political
participation, rather than pursuing it as an independent good.
The official communique of the Communist Party's 4th Plenum in
September 2004 emphasized this goal, stating that the Party
should:
continue to enforce and improve the existing
practices of democratic recommendation and democratic
evaluation of officials, multi-candidate competitive
selections for official posts, opinion solicitation
prior to appointment of new officials, and voting by
all members of a Party committee (rather than arbitrary
decisionmaking by committee heads).\6\
The focus on recommendation rather than nomination,
selection rather than election, and decisionmaking by all
members of a Party committee, rather than by representative
vote, indicates the Party's intent to use popular participation
as a utilitarian tool of governance, rather than as a stepping
stone to representative democracy.\7\
The impact of political reforms at the local level has been
limited. In some cases, reforms have produced competitive
elections for local office and have exposed citizens to
electoral processes.\8\ Reforms have also created limited
public forums for local residents to challenge some local
government actions\9\ and created popular expectations for
changes in other areas, such as cadre recruitment.\10\ Limited
public participation and continued tight Party control,
however, generate problems and conflict in the Chinese
political system.\11\ Organizations having some popular
legitimacy, such as directly elected village committees,
frequently clash with Party officials and higher-level
governments.\12\ In September 2005, township authorities
suppressed a popularly elected recall committee in Taishi
village, Guangdong province, that was part of a citizen effort
to use national election laws to remove the village committee
head.\13\ Without independent political organizations or open
campaigning, some candidates rely on clan ties to win
elections.\14\ The refusal of central officials to allow
meaningful citizen political participation above the lowest
levels of the political system blocks the expansion of
political freedom while generating internal tensions.
Village/Residents' Committee Elections
The Chinese government has attempted to reinvigorate local
governance by supporting the direct election of VCs since the
1980s and urban RCs since the 1990s.\15\ After local
experiments with VC elections in the early 1980s, the central
government formally approved them in a 1987 experimental
law.\16\ With support from the Ministry of Civil Affairs (MOCA)
officials and grassroots efforts by rural residents, direct VC
elections spread nationally during the 1990s.\17\ Since 1998,
national law has required direct elections to select VC
members, although this requirement has not been implemented
everywhere.\18\ Urban RC elections only developed recently,
despite prior 1989 legislation permitting local experiments in
direct RC elections. In 1999, MOCA organized a pilot project
for holding direct RC elections in 12 selected cities.\19\ The
reform has been extended and major urban centers such as
Beijing and Shanghai have held direct RC elections.\20\ Guangxi
province adopted a province-wide requirement for direct RC
elections in 2002.\21\
VC and RC elections remain subject to Party and government
controls. Party authorities and township governments control
electoral procedures by using county election leadership groups
and village election commissions to supervise election
proceedings, certify lists of candidates, and approve the
results.\22\ Election committee members often are designated by
existing village committee heads or appointed by township
governments. Heads of village election committees generally
must be Party members.\23\ According to one study of local
elections in Jilin province, 66 percent of officials surveyed
said that the village Party secretary himself headed their
local election committee.\24\ As one Chinese scholar noted,
this ``Party-controlled system not only facilitates the
intervention of the village Party secretary in the electoral
process, but it also suppresses the inclination of villagers to
actively participate in the elections.'' \25\
Structural problems continue to limit both the fairness of
VC and RC elections and the independence of these institutions.
Migrants often remain excluded from local elections,
particularly where the allocation of local land rights is at
stake.\26\ Regulations limit the ability of candidates to
conduct many campaign activities.\27\
Despite MOCA efforts to limit their use, proxy voting and
floating ballot boxes call into question the fairness of many
VC and RC elections.\28\ As MOCA officials acknowledge, current
law does little to protect the electoral rights of Chinese
citizens.\29\ Many local governments delegate administrative
tasks to VCs and RCs and control them by fiat.\30\
Central authorities have not permitted direct elections
beyond local levels in order to prevent any challenge to Party
control. In 2000, central government officials suppressed
efforts in Sichuan province to organize direct elections for a
township government, which is one level above the village
level.\31\ Unlike the 1990s, when they actively supported VC
elections, MOCA officials
currently appear less inclined to support expansion of urban RC
elections. MOCA officials say that only 10 percent of all RCs
nationwide are currently chosen through direct elections, and
expanding that percentage will depend on the interest of local
authorities.\32\ Some local governments have made RC elections
a long-term priority. According to the five-year development
plan issued by the Shenzhen government in February 2005, at
least 70 percent of municipal RCs are to be chosen through
direct election by 2010.\33\
Despite these limitations, some Chinese officials are
working to ensure a degree of transparency and openness in VC
and RC elections. One study conducted in Fujian province found
that village representative assemblies controlled selection of
the electoral commission in 75.6 percent of the villages
surveyed.\34\ Nationally, MOCA officials are seeking revisions
to existing laws governing RCs and VCs and have hosted hearings
calling for greater RC and VC independence. MOCA officials also
advocate greater flexibility for candidates to campaign for
office.\35\
Local People's Congresses
The authority of local people's congresses (LPCs), the
legislative branch of local government, has grown since the
early 1990s, in part as a result of Party decisions to enlarge
their role. LPCs have also expanded their power by exercising
their right to supervise and review the actions of local
governments and courts.\36\ LPCs appraise and criticize local
officials, require government agencies to respond to requests
for information, and form special commissions to investigate
issues of public concern.\37\ LPCs also increasingly use public
hearings (codified under the 2000 Legislation Law) as a means
to solicit public views on pending legislation.\38\
Although relatively more powerful than in the past, LPCs
remain handicapped by infrequent meetings, biases against rural
and migrant populations, a lack of resources, and continuing
Party control over important decisions.\39\ County and township
LPC delegates serve five-year terms but meet in annual plenary
sessions lasting only a few days.\40\ Real LPC authority
resides in two leadership groups, the standing committee and
the presidium.\41\ Membership in both of these groups is
tightly controlled. For example, previous LPC leaders generally
select LPC presidium members in advance and vet their choices
with local Party authorities.\42\ LPC membership discriminates
against migrants and rural residents. Under
national law, rural LPC deputies represent four times as many
constituents as their urban counterparts.\43\ Voter
registration requirements often inhibit migrants from voting in
their places of actual residence, although some localities have
undertaken initiatives to reduce these barriers.\44\
The government and Party have ensured that LPCs do not
develop into fully representative legislative bodies. Township
LPCs have been directly elected since 1953, and county LPCs
since 1979, but these elections remain subject to regulatory
controls and direct Party interference. Party leaders see
electoral reform as a threat to their control. For example,
during a brief flirtation with political reform in 1979-80,
authorities relaxed LPC election rules to allow a degree of
competition and campaigning.\45\ In the ensuing 1980 elections,
student and democracy activists used this leeway to debate
political issues and challenge government authority. Chinese
authorities responded with a general crackdown on elections and
adopted restrictive amendments to relevant laws that removed
the competitive, democratic elements from LPC elections.\46\
Officials employ a variety of techniques to limit the
democratic nature of LPC elections. Election laws allow the
Party and the mass organizations that it controls to submit
lists of approved cadres for LPC positions.\47\ While election
laws permit groups of 10 or more voters to nominate LPC
candidates, nomination procedures often raise obstacles to
independent candidates, thus ensuring that only Party-nominated
candidates survive the nomination process and reach the
election.\48\ Election regulations impose very short deadlines
for holding elections. Official candidate lists need only be
released five days before the election,\49\ limiting a
candidate's opportunity to campaign for voter support.
Practices commonly associated with election fraud, such as the
use of floating ballot boxes and proxy voting, plague many LPC
elections.\50\
Party officials use local election committees to maintain
direct control over LPC elections. Formalized in a 1983 NPC
directive, but never incorporated into national election laws,
election committees determine voter eligibility, issue
candidate lists, conduct elections, and report the results.\51\
Party-led county election leadership groups direct local
election committees\52\ and are headed by township Party
secretaries. Election committee members are often themselves
candidates for LPC seats.\53\ Thus, election committees often
have an interest in limiting competition and in assuring that
LPCs remain relatively passive. Rules granting election
committees nearly unlimited discretion in how to select final
candidates facilitate this result.\54\ Election committees
often resort to screening processes that are neither
transparent nor democratic to narrow the candidate field to an
acceptable few.\55\ As the NPC Legal
Affairs Office has noted, these procedures ``easily lead in
practice to behind-the-scenes manipulation of elections.'' \56\
Chinese scholars have criticized such practices, noting that
``[c]ontrols and limitations on LPC candidate nominations
ensure that individuals nominated by LPC presidiums win, and
that candidates nominated by the Party win. Organizational
tactics and outright illegal conduct in handling LPC candidate
nominations have in practice meant that many township LPC
elections lack any democratic
nature. . . .'' \57\
The practices used to elect LPC members discriminate
against individuals who run as independent candidates. During
the 2003 Beijing district LPC elections, for example, 23
independent candidates attempted to run under the independent
nomination procedure.\58\ These candidates included scholars
and activists who had gained notoriety for their challenges to
government policies.\59\ Only two were actually elected.\60\
Government restrictions prevented candidates from independently
making public speeches and meeting the voters.\61\ Local
electoral commissions used designated groups of voters to
screen potential candidates, preventing many independent
candidates from appearing on the ballot.\62\
In October 2004, the NPC amended the LPC election law,
introducing several minor reforms.\63\ The amended law
expressly allows electoral commissions to use primary elections
to narrow the candidate list.\64\ The amended law also permits
the electoral commission itself to organize public events to
allow the candidates to respond to questions from the
public.\65\ These reforms create a vaguely defined zone of
authorized political participation in LPC elections that future
reformers might use to press for greater accountability. Both
reforms resulted from pressure by local activists in the 2003
LPC elections.\66\
Despite these positive changes, the 2004 amendments
represent only a small step towards making China's LPC
elections more competitive and democratic. The reforms merely
reintroduce electoral processes, such as limited campaign
events and open primaries, that Chinese authorities had
abolished after the 1980 elections discussed above. Moreover,
many provincial regulations already permitted these electoral
processes.\67\ The reforms do not address the deeper structural
problems of continued Party domination of LPC electoral
systems, such as Party control of nomination procedures and
electoral commission discretion over candidate lists.\68\
Selection of Local Party and Government Officials
Party organizations use internal elections to fill
leadership positions. Local Party committees must submit
proposed lists of
candidates to higher authorities for clearance before holding
such elections. Candidates must undergo background checks for
political reliability. Party authorities frequently convene
small groups of Party members in advance to elicit their views
about candidates, using this information to narrow the
candidate list. This process ensures that the election is
merely a ratification of the Party leadership's choices.\69\
Since the early 1990s, many Chinese localities have
experimented with more open forms of Party elections.\70\ One
system in wide use for selecting village Party secretaries is
an open primary system in which both Party and non-Party
members are allowed to nominate candidates. Voting in the Party
election, however, is limited to Party members alone.\71\ A
2004 experiment in Sichuan province relied on a weighted
election to generate two final
candidates for village Party secretary. The votes of local
Party members counted for 50 percent of the total, local
officials for 25 percent, and other citizens in the village for
the remaining 25 percent. Village Party members then selected
the ultimate winner.\72\
In recent years, other localities have adopted similar
techniques for the selection of low-level government
officials.\73\ Despite official claims to the contrary, their
actual democratic nature remains limited. Officials retain the
power to decide the final outcome. For example, in 2004,
Jiangsu province chose 295 officials, ranging from county
government heads to the deputy chief of the provincial
development commission, through a ``public nomination/public
selection'' procedure. Actual public participation included
only passive observation of candidate speeches and minimal
input by chosen
officials and citizens into the selection process.\74\
These reforms are an effort to improve the Party's
governance of society by permitting limited public
participation and do not indicate an underlying commitment to
democracy. As one Chinese commentator noted, ``these reforms
are an improvement, but remain but a transitional mechanism.
[They] are not actually a reform of the political system, but
merely an internal, technical adjustment of the system of cadre
management.'' \75\
V(e) Access to Justice
FINDINGS
<bullet> Chinese citizens resort to thousands of
``letters and visits'' (xinfang) offices for redress of
their grievances because of deficiencies in the legal
system and the absence of alternative channels for
political participation.
<bullet> More citizens are petitioning xinfang offices,
although only a small fraction of grievances are
resolved. Citizen frustration is finding an outlet in
collective petitions that take the form of mass
demonstrations or strikes. Because Chinese authorities
punish local officials more severely for large
protests, citizens think that collective petitioning is
more likely to gain results.
<bullet> The Chinese government passed new regulations
in 2005 designed to make the xinfang system more
responsive to citizen complaints, but these regulations
also expand the role of xinfang offices and the
incentives for citizens to resort to collective
petitioning.
Citizen Reliance on Petitioning
Since the 1950s, ``letters and visits'' (xinfang) offices
have been a channel for citizen requests for assistance in
resolving grievances and appeals of government decisions
outside the judicial system.\1\ Xinfang offices are found
throughout the Chinese bureaucracy, including offices of the
Communist Party, police, government, procuracy, courts, and
people's congresses. Xinfang offices help central leaders
administer the country, serving as a channel for them to obtain
information on grassroots conditions and allowing them to use
public input to monitor the actions of lower-level
officials.\2\ Individual petitioning may be as simple as one
dissatisfied individual visiting multiple government xinfang
offices.\3\ Collective petitioning may involve organized
demonstrations, speeches, and marches of hundreds or thousands
of people seeking to present their grievances to officials.\4\
Citizen petitioning of xinfang offices reflects a number of
structural problems in the Chinese political and legal systems.
Particularly in rural China, a single Party secretary often
holds virtually unchallenged political power. Ordinary citizens
have no ability under current law to organize independent
organizations to protect their rights,\5\ and have only limited
means to participate in the selection of local officials.\6\
Moreover, judicial institutions are subject to extensive local
Party and government interference and
provide limited protection for citizen rights.\7\ Without
effective political or legal channels of redress, citizens
often have little choice but to petition higher authorities
repeatedly to seek help in resolving their grievances.
Despite the gradual development of the formal Chinese legal
system, Chinese citizens continue to rely heavily on
petitioning to resolve their grievances. According to estimates
by national xinfang officials, petitions to Party and
government xinfang bureaus at the county level and higher total
about 11.5 million per year.\8\ In contrast, the entire Chinese
judiciary handled 6 million legal cases in 2004, of which only
91,192 were administrative cases.\9\ Even within formal legal
institutions, citizens commonly resort to petitioning to
resolve their grievances; petitioners presented 4.2 million
xinfang petitions to Chinese courts in 2004.\10\
Petitioning practices and institutions challenge the
development of the rule of law in China. Petitioners often
contact any official or bureau that they think may be able to
intervene and assist them, regardless of whether or not the
official or bureau has formal authority over the issue.
Similarly, official resolution of petitions often depends on
the willingness of high officials to intervene rather than on
the legal merits of the case.\11\ Many petitions are appeals of
court decisions outside of formal legal channels.\12\ As one
Chinese observer has noted, ``Xinfang--a mechanism originally
established to resolve political problems, has gradually
evolved into a system of assistance serving as a replacement
for the judicial system.'' \13\ Despite heavy citizen reliance
on xinfang offices, individual petitioning rarely resolves
underlying grievances. According to a 2004 survey of the
xinfang system conducted by the Chinese Academy of Social
Sciences, government bureaus address only 0.2 percent of
petitions filed. Over half of petitioners surveyed experienced
beatings or other reprisals by government officials as a result
of their petitioning.\14\ Xinfang offices lack authority to
resolve petitions, frequently refer petitioner cases from
bureau to bureau without resolution, handle petitions under
opaque and secretive procedures, and are the source of a wide
range of human rights abuses.\15\ Lacking other channels for
redress of grievances, petitioners sometimes spend years or
decades living in poverty in Beijing slums as they pursue their
petitions.\16\
Although individual petitioners rarely succeed under the
xinfang system, collective petitioning efforts occasionally
compel officials to act on citizen grievances.\17\ This result
occurs in part because local officials who experience
collective petitions face punishment under official xinfang
responsibility systems.\18\ These systems apply progressively
harsher disciplinary sanctions to government officials
depending on the scale of the mass petitions and the
bureaucratic level to which they are directed, rather than
linking punishment solely to the legal merit of the
complaints.\19\ For example, Anhui provincial regulations
impose formal criticism on local officials who face mass
petitions (over 50 petitioners at the provincial capital or
over 20 at the national level) that remain for more than 48
hours at government agencies.'' \20\ Mass petition movements of
over 100 people to the provincial capital (or over 30 to
Beijing) result in suspension of the responsible official.\21\
Xinfang responsibility systems create an incentive system
that encourages petitioners to organize larger petition
movements
directed at increasingly higher levels of government. Because
the systems apply harsher disciplinary sanctions to officials
who experience larger and more frequent mass petitions,
petitioners have an incentive to take their grievances to the
streets to force officials to act. Local officials have an
interest in suppressing collective petition movements and
preventing petitioners from approaching higher authorities.
Foreign NGOs have documented the efforts by local and national
officials to suppress mass petition movements violently.\22\
This cat-and-mouse struggle between petitioners and local
authorities appears to be producing a group of experienced
petition leaders who are capable of operating in secrecy and
mobilizing large groups of petitioners.\23\
The incentive structure described above appears to be
causing a rapid increase in the number of citizen petitions.
Officials at the national xinfang bureau report that the total
number of petitions has increased every year since 1993.\24\
Petitions to the Supreme People's Court increased by 23.6
percent in 2004.\25\ Petitioners are focusing on higher levels
of government. In 2003, the national xinfang bureau registered
a 14 percent increase over 2002 in the total number of
petitions, but provincial and local bureaus only registered
minimal increases. Similarly, national-level government
agencies received 46 percent more petitions in 2003 than in
2002, while provincial and local agencies had only minor
increases.\26\ Collective petitions are increasing as a
percentage of total petitioning activity. While the total
numbers of letters and in-person visits by individual
petitioners in one surveyed set of villages remained relatively
stable between 1995 and 2000,\27\ the numbers of collective
petitions nearly tripled during the same period.\28\
2005 Amendments to Xinfang Regulations
In January 2005, the State Council responded to criticism
of the xinfang system by amending the national xinfang
regulations.\29\ The amended regulations clarify that officials
must resolve petitions in accordance with laws and
regulations.\30\ Petitioners must raise violations of their
legal rights with the courts or other legally mandated
entities.\31\ The amendments remove language suggesting that
the xinfang system can be an alternative to legal remedies
provided in the Administrative Litigation and Administrative
Reconsideration Laws. The amendments strengthen the finality of
decisions and permit hearings to be held to resolve
petitions.\32\ The amended regulations also encourage local
officials to allow legal aid groups to assist in resolving
petitions under the guidance of xinfang bureaus.\33\
Despite the positive aspects of the 2005 amendments,
however, they also reinforce the xinfang institutions and
responsibility systems that are at the root of existing
problems. The national xinfang bureau is charged with creating
a nationwide system to track petitions.\34\ All local
governments must now adopt xinfang responsibility systems and
make the success of officials in handling
petitions an element of official performance reviews.\35\ The
new regulations also require that all county and township
governments and their subordinate administrative bureaus
establish a system of ``xinfang leadership reception days'' for
petitioners to approach responsible officials of various
government bureaus directly.\36\ Finally, the regulations grant
xinfang officials a degree of ``soft power'' to affect the
disposition of particular cases\37\ and require regular
reporting of petition statistics to higher government
authorities.\38\
V(f) Commercial Rule of Law and the Impact of the WTO
FINDINGS
<bullet> The Chinese government has made progress in
bringing its laws and regulations into compliance with
its WTO commitments. Though significant flaws remain,
the new body of commercial laws has improved the
business climate for foreign companies in China. With
new, more transparent rules, the Chinese trade
bureaucracy has reduced regulatory and licensing
delays.
<bullet> The Chinese government tolerates intellectual
property infringement rates that are among the highest
in the world. Steps taken by Chinese agencies in the
past 12 months to improve the protection of foreign
intellectual property have not produced any significant
decrease in infringement activity. The Chinese
government has not introduced criminal penalties
sufficient to deter intellectual property infringement.
<bullet> The Chinese government has not fully
implemented the key WTO principles of national
treatment, non-discrimination, and transparency in such
areas as distribution and agriculture. To address these
problems, the Chinese government must continue economic
reforms, establish a more transparent and consistent
regulatory and licensing system, implement and enforce
distribution rights for foreign companies, and
strengthen
enforcement of intellectual property laws.
Developments in Commercial Rule of Law
The Chinese government has made progress in bringing its
laws and regulations into compliance with its WTO commitments.
Since joining the WTO in 2001, central, provincial, and local
governments have reviewed more than 2,500 trade-related
measures\1\ and the Supreme People's Court (SPC) has reviewed
all of its approximately 2,600 interpretations and related
documents,\2\ to ensure that they comply with WTO requirements.
Despite these positive steps, the rule of law remains weak in
China and this, among other factors, has hampered the timely
and efficient implementation of China's WTO commitments.
Though significant flaws remain, the new body of commercial
laws has improved the business climate for foreign companies in
China.\3\ With new, more transparent rules, the Chinese trade
bureaucracy has made some progress in reducing regulatory and
licensing delays.\4\ The new laws and regulations have reduced
uncertainty about contractual rights and obligations.\5\
Foreign companies are increasingly using Chinese courts to
resolve business disputes, and the overall professional quality
of judges has improved [see Section V(c)--China's Judicial
System]. Improvements in the legal regime are the primary
reason that more U.S. companies in China planned to expand
their operations in 2005.\6\
The WTO principles of non-discrimination and transparency,
introduced to government officials at all levels by the new
commercial laws, are having a positive effect on some aspects
of non-commercial public policy as well. A former Chinese trade
negotiator noted that WTO transparency requirements have put
pressure on officials to curb the use of internal, non-public
rules to regulate corporate and citizen behavior.\7\ Chinese
citizens, private companies, and government agencies have also
used WTO terminology regarding national treatment when
criticizing regulatory discrimination.\8\ For example, Chinese
scholars have criticized the lack of ``urban resident
treatment,'' a term derived from the WTO term for non-
discriminatory treatment, for rural residents in regulations
that favor urban residents [see Section III(j)--Freedom of
Residence and Travel].\9\ In their discussions of such
discrimination, both the central government and local
governments have also used WTO-derived terms, promising
expanded ``urban resident treatment'' to all citizens.\10\
Nonetheless, the Chinese government still maintains
measures that undermine implementation of its WTO commitments.
For
example, although the Chinese government implemented WTO-
mandated tariff reductions in a timely manner, Chinese customs
officials continue to impose arbitrary tariff classifications
on imports at different ports of entry.\11\ Likewise, a new,
draft Telecommunications Law could clarify the nature of market
regulations and the procedures for foreign firms to gain the
market access guaranteed in China's WTO commitments, but has
yet to be published for public comment.\12\
The Chinese government has also proposed and implemented
new measures that appear to protect and promote domestic
industry and disadvantage foreign business, sometimes in
contravention of its WTO commitments. A senior official at the
Ministry of Commerce (MOFCOM) affiliated Beijing WTO Affairs
Research and Consulting Center called on the Chinese government
in late 2004 to focus on the ``threats of imports and increased
competition from foreign goods, services, and enterprises.''
\13\ Two measures, although now resolved, illuminate policy
efforts to protect domestic industry. In 2004, the government
sought to implement a new commercially onerous wireless
networking standard that mandated technology transfers from
foreign to domestic high-technology companies, despite a WTO
commitment to use international standards except when
ineffective or inappropriate.\14\ For over two years following
WTO accession, the Chinese government maintained an
export tax rebate for domestically produced integrated circuits
designed to compel foreign firms to relocate their design and
fabrication facilities to China.\15\ The U.S. government
asserted that the policy violated a WTO prohibition against tax
policies favoring domestic production.
The government has adopted a steel industry development
policy that will raise barriers to entry for foreign companies
by imposing high capital requirements and limitations on joint
venture partners.\16\ Although this policy may be consistent
with WTO requirements, it exploits broad WTO rules to protect
or develop Chinese industries at the expense of foreign firms.
The United States and China's other WTO partners will need to
remain vigilant to ensure that the government's implementation
of WTO obligations helps create a robust commercial legal
system, rather than creating incentives to implement
development policies consistent with WTO requirements, but
acting as subtle barriers to trade.
Infringement of Foreign Intellectual Property
In the past year, the Chinese government continued to
tolerate intellectual property (IP) infringement rates that
were among the highest in the world.\17\ Copyright piracy rates
in China currently exceed 90 percent in some industries,\18\
including rates of 95 percent for motion pictures and 90
percent for software.\19\ In 2004, U.S. Customs seized more
Chinese products for trademark violations than from any other
country.\20\ In early 2004, Vice Premier Wu Yi committed her
government to reducing the level of IP infringement in China
immediately, and reiterated and expanded this commitment to
senior U.S. officials at the U.S.-China Joint Commission on
Commerce and Trade (JCCT) session in July 2005.\21\ As of the
publication date of this Annual Report, the Chinese central
government has intensified its efforts to combat infringement
activities, but has not yet met this goal.
The Chinese government reported that the number of raids
conducted and the quantity of pirated products destroyed have
increased,\22\ but U.S. industry sources say that infringement
of foreign intellectual property in China has grown worse since
2003.\23\ High infringement rates continue, in part because
Chinese authorities have not increased penalties against
producers of pirated goods.\24\ Infringement rates in South
Korea and Taiwan that approached or exceeded 90 percent in the
1980s and 1990s were brought under control after the central
government instituted new deterrent penalties and specific
legal measures.\25\ A specific licensing requirement for
optical disc production, for example, helped the Hong Kong
government curb piracy at its source.\26\
The Chinese government has not introduced criminal
penalties sufficient to deter IP infringement. The WTO
Agreement on Trade-Related Aspects of Intellectual Property
Rights requires WTO Members to maintain criminal IP penalties,
including monetary fines ``sufficient to provide a deterrent.''
\27\ Current provisions in China's Criminal Law are inadequate
to deter infringement\28\ and serious IP cases remain in the
administrative enforcement system, which has proven ineffective
at deterring violators.\29\ In 2004, the Supreme People's Court
(SPC) and Supreme People's Procuratorate (SPP) issued an
interpretation on transferring IP infringement cases from
administrative to criminal enforcement without sharing a draft
of its decision with WTO members for comment, despite promising
to do so.\30\ The U.S. government subsequently determined that
the revisions ``did not go far enough to be an effective
deterrent.'' \31\
Steps taken by Chinese agencies in 2004 to improve the
protection of foreign IP have not produced a significant
decrease in infringement activities. The SPC and SPP
interpretation described above reduced the threshold for
criminal IP infringement by 40 percent in some cases but still
calls for calculating infringement using the retail value of
the illegal goods, rather than the value of genuine
products.\32\ Consequently, the new lower threshold will be
limited in its effectiveness. In July 2004, China's Patent
Reexamination Board invalidated a U.S. company's pharmaceutical
patent after determining that the company did not submit
sufficiently detailed laboratory data during the examination
process, though the data was not required under Chinese
regulations in effect when the examination took place.\33\ In
addition, government authorities had designated the U.S. drug a
``controlled substance'' in its marketing authorization despite
the wide availability of counterfeit substitutes.\34\ Chinese
pharmaceutical makers are free to manufacture the U.S.
company's drug without fear of government sanctions.
The Chinese government has ample enforcement resources, but
appears to lack the will to prevent infringement of IP from
thriving in China. One U.S. expert told a Commission Roundtable
that local police generally resist efforts to shut down
commercial infringers because large-scale pirating efforts
support the local economy and have the financial support of key
local officials.\35\ The Chinese leadership's repression of
Falun Gong demonstrates that police can stop the production of
``illegal publications'' when Party and government leaders
believe it is in their best interest to do so.\36\ Before the
state banned Falun Gong in 1999, the spiritual group's
materials were found throughout China.\37\ Since the crackdown,
the only publicly available materials in China that discuss
Falun Gong are anti-Falun Gong materials published by the
government.
Market Access for Agricultural Products
In the past year, the Chinese government took a number of
actions that resolved significant bilateral concerns about
agricultural trade. These actions included reopening China's
market to U.S. poultry exports,\38\ granting market approval
for U.S. agricultural biotechnology products,\39\ and
increasing formal coordination efforts between inspection and
quarantine officials in both countries.\40\ In addition, the
Chinese government's implementation of WTO agricultural
commitments has generated greater institutional capacity among
agricultural trade officials and made the administration of
trade-related agricultural measures less cumbersome for foreign
business. These changes helped China become the fourth largest
export market for U.S. agricultural products in 2004, a market
that was largely closed to the U.S. before China joined the
WTO.\41\
Despite these positive steps, a number of serious problems
still exist in the Chinese government's administration of
agricultural trade. The government's inspection and quarantine
system continues to implement discriminatory sanitary and
phytosanitary measures with a questionable scientific basis.
Officials with the General Administration of Quality
Supervision, Inspection, and Quarantine (AQSIQ) have maintained
a ban on U.S. beef imports,\42\ even though the U.S. cattle
surveillance system meets international standards.\43\ The
Chinese government maintained bans on Florida citrus and U.S.
cherries entering the Chinese market through late 2004 despite
the lack of a scientific basis for the decision.\44\ AQSIQ has
also set a limit for selenium in U.S. wheat that is lower than
the international standard. The requirement, if enforced, could
result in a significant decrease in exports of U.S. wheat to
China.\45\
The Chinese government sets preferential shipping rates and
provides an export tax rebate on corn exports.\46\ Both
represent potential export subsidies that could run counter to
WTO rules.\47\ When it acceded to the WTO, China promised not
to maintain any agricultural export subsidies and agreed to
abide by WTO rules proscribing the introduction of such
policies.\48\ Since then, China has made additional
declarations to the WTO Committee on Agriculture certifying
that it does not maintain any export subsidies for agricultural
products.\49\ In the last year, the Chinese government also
began to support the rural economy with direct payments to
agricultural producers.\50\ Although these payments appear to
be WTO-consistent, this is the first time since WTO accession
that the Chinese government has provided direct support to its
agricultural producers and reverses the historical practice of
using income generated by agricultural areas to support the
urban population.
Legal reform that should liberalize market access for
agricultural products is often ineffective because of local
differences in implementation and unannounced rule changes that
delay agricultural shipments. The Chinese government committed
in several WTO agreements to apply its laws in a uniform
manner, but central government agencies charged with addressing
cases of conflicting application of national and provincial
laws have not always been
effective.\51\ U.S. exporters express concern that inconsistent
application of China's inspection and quarantine regime is tied
to whether or not the government believes that agricultural
imports are necessary to compensate for shortfalls in domestic
production.\52\ U.S. exporters say that they must pay Value
Added Tax (VAT) on corn imports when their products enter
China, but domestic producers allegedly ``have no VAT directly
applied.'' \53\
Lack of Transparency in Regulatory and Administrative Processes
The Chinese government does not consistently publish drafts
of trade-related measures,\54\ and some government agencies do
not circulate drafts of commercial laws and regulations to
outside groups or individuals, domestic or foreign.\55\ Some
government agencies will circulate drafts on the condition that
the outside party does not share the draft more widely.\56\ The
government's tendency toward secrecy runs counter to a WTO
commitment to provide a meaningful opportunity for appropriate
Chinese government authorities to receive comments from outside
parties before laws and regulations are implemented.\57\ To
date, neither the State Council nor the Ministry of Commerce
has published a draft of the Anti-Monopoly Law for comment.\58\
The SPC and SPP did not release a public draft of their
December 2004 ``Interpretation Concerning Certain Questions of
Using the Criminal Law to Handle Violations of Intellectual
Property Rights,'' despite a central government commitment to
do so.\59\ Complaints later voiced by the U.S. business
community regarding the Interpretation could have been avoided
if the Chinese government had solicited comments in
advance.\60\
Despite these problems, the Chinese government has taken
steps to increase official transparency. The 2004 USTR Report
to Congress on China's WTO Compliance noted that the Ministry
of Commerce has begun following administrative transparency
rules set forth in 2003, and that these rules may serve as a
model for other ministries and agencies.\61\ The same report
found that China's ministries and agencies have a ``much better
record'' in making new or revised laws and regulations
available to the public soon after issuance, an improvement
over pre-WTO accession practices.\62\ In March 2005, the Party
and the State Council issued an opinion directing all levels of
government to increase transparency by releasing more
information on all their activities.\63\ The document did not
require decisions to be published, but suggested that
disclosure should be the rule, not the exception.\64\
Substantive legal changes related to transparency, such as
amendments to the Administrative Litigation Law and
consideration of the Administrative Procedure Law, have moved
slowly [see Section V(b)--Legal Restraints on State Power].
China committed to mandate judicial review of trade-related
administrative decisions when it joined the WTO in 2001.\65\
The SPC took steps to fulfill this commitment in 2002, but
split the court assignment process so that only intermediate or
high people's courts may handle WTO-related cases and review
anti-dumping decisions.\66\ This reassignment and related
personnel changes have produced a generally more professional
judiciary, but the changes are not always sufficient to ensure
independent judicial review in trade-related cases.\67\
Barriers to Entry in Distribution for Foreign Companies
In 2004, the Chinese government adopted legal measures to
comply with its WTO commitment to grant distribution rights to
foreign companies, but the procedures and requirements for a
distribution license constitute a barrier to market entry.\68\
A foreign-invested enterprise (FIE) must form a new company
with its own registered capital and legal personality before it
can be licensed to distribute products in China.\69\ Creating a
new company requires both Ministry of Commerce and provincial
government approval, and FIEs have found the licensing process
slow and non-transparent.\70\ In addition, FIEs with
distribution licenses sometimes encounter local officials who
oppose opening markets that could harm enterprises in their
jurisdiction.\71\ During the July 2005 JCCT meeting, following
significant efforts by the U.S. government and industry, China
claimed to have cleared a significant backlog of applications
for distribution licenses.\72\
The Chinese government was late in issuing regulations to
permit FIEs to sell directly away from a store or other fixed
location. Under China's WTO General Agreement on Trade in
Services (GATS) commitments, U.S. direct sales companies should
have received permission to apply for licenses by the end of
2004. At the July 2005 JCCT meetings, the Chinese government
said the State Council would enact a regulation permitting
direct selling as soon as it finished its review and approved
the measure.\73\ In August 2005, the State Council issued both
the Regulation on the Administration of Direct Selling and the
Regulation Prohibiting Pyramid Selling, the measures governing
direct selling.\74\ They will come into effect in November and
December 2005.
China's Large Procurement Market and Decreasing Foreign Supplier Access
The Chinese government has not begun the process of
acceding to the WTO Agreement on Government Procurement (GPA),
as it promised to do when it joined the WTO. Among other
things, the GPA would prevent the Chinese government from
discriminating against foreign suppliers in the procurement
process. A Government Procurement Law enacted after China's WTO
accession requires government agencies to give preference to
domestic goods and services.\75\ At the July 2005 JCCT meeting,
China agreed to accelerate efforts to make an initial offer and
to initiate technical consultations with other GPA members.\76\
At the July 2005 JCCT meeting, China also agreed to
withdraw a draft regulation that would limit government
purchases of software products and services to domestic
manufactures.\77\ The regulation has caused concern among
foreign suppliers of software products and services because it
defines domestic software products and services narrowly and
does not take into account the investment and work done by
foreign software companies in China.\78\ It has also raised
concerns that the government will use it to limit market access
for foreign software companies and that it will lead to
increased technology transfer.\79\ In contrast to drafts of
many other trade-related laws and regulations, the government
released the draft government software procurement regulation
for public comment, and foreign software producers reviewed the
regulation and consulted with the drafters about ways to
improve it.
Auto Industry Development
The development of China's automobile industry in the past
year has followed the industrial plan put forward by the
Chinese government in 2004.\80\ The Auto Industry Development
Policy calls for consolidating China's auto industry from the
current level of over 100 manufacturers to a smaller number of
globally competitive companies.\81\ The policy specifically
makes the creation of an export auto industry a priority and
requires the protection of relevant intellectual property.\82\
The implementation of this policy has included the
reclassification of imports of complete ``knock-down kits''
(kits of unassembled auto components requiring only assembly in
China) as new automobiles, resulting in a substantially
increased duty rate for those imports.\83\
Although the Auto Industry Development Policy proscribes
misuse of foreign intellectual property,\84\ at least one
Chinese automaker has benefited both from the government's
policy to promote China's auto industry and from its tolerance
of intellectual property violations. In December 2004, GM
Daewoo, a subsidiary of General Motors, filed an unfair
competition suit in a Shanghai court against Chery
Automotive,\85\ which received millions of dollars in subsidies
from the Ministry of Science and Technology in 2004.\86\ The
suit alleges that Chery misappropriated GM trade secrets and
used them to design its ``QQ'' model.\87\ GM Daewoo also
submitted a request to China's Patent Reexamination Board to
invalidate the design patent Chery filed on the ``QQ''
model.\88\ Chery subsequently filed a trademark application
with the U.S. Patent and Trademark Office seeking to register
the Chery name in connection with automobiles, and attorneys
for GM have pointed out that similarities between ``Chery'' and
the GM trademark ``Chevy'' would likely result in consumer
confusion.\89\
In August, the Ministry of Commerce issued a new Auto Trade
Policy that regulates domestic trade in autos and automotive
products as well as applying to the import and export of those
goods.\90\ The policy confirms that foreign investors may enter
the domestic distribution market for autos, part of China's WTO
accession commitment to open the distribution sector.\91\ It
also prohibits the importation of used cars, used car parts,
and right-side drive autos.\92\ According to an official from
the Ministry of Commerce, this policy seeks to create a
consolidated and competitive auto distribution industry in
China.\93\
VI. Tibet
FINDINGS
<bullet> The Dalai Lama has said that he does not seek
independence and aims for a solution based on Tibetan
autonomy within China. But Chinese leaders do not seem
to recognize the benefits of moving forward in the
dialogue with the Dalai Lama or his envoys. Chinese
laws on regional ethnic autonomy contain provisions
that could benefit Tibetans and their culture, but poor
government implementation of these laws largely negates
their potential value.
<bullet> Chinese government statistics suggest that
Tibetans are not yet prepared to compete in the
economic and ethnic environment created by central
government policies. The Tibetan rate of illiteracy is
five times higher than China's national average. Most
Tibetans do not have access to a bilingual education
system that can impart skills to help them compete for
employment and other economic benefits.
<bullet> Chinese laws and official statements lend
credibility to Tibetan concerns that programs such as
Great Western Development and projects such as the
Qinghai-Tibet railroad will lead to large increases in
Han migration.
<bullet> The rights of Tibetans to their
constitutionally guaranteed freedoms of religion,
speech, and assembly are subject to strict constraint.
Government officials persecute prominent Tibetans,
especially religious leaders, believed to have links to
the Dalai Lama.
Introduction
The impact of Chinese laws and policies in the Tibetan
areas of China shows that the government and Party place
economic development ahead of protecting basic human rights,
such as the freedoms of religion, speech, and assembly. Chinese
officials support their claims of Tibetan progress with
statistics that show some economic achievement, but the data
also show that the main beneficiaries live in urban areas,
where most ethnic Han reside, and not in the rural areas where
87 percent of Tibetans live. Tibetans struggle with poverty,
inadequate education, and competition from a growing Han
population. The Chinese government can strengthen ethnic and
national unity by improving the implementation of the Regional
Ethnic Autonomy Law (REAL), and by ensuring that Tibetans can
manage their affairs, protect their culture, and become equal
competitors with their neighbors.
The Status of Discussion Between China and the Dalai Lama
U.S. government policy on Tibet recognizes the Tibet
Autonomous Region (TAR) and Tibetan autonomous prefectures and
counties\1\ in other provinces to be a part of China.\2\ The
State Department's third annual Report on Tibet Negotiations\3\
detailed the U.S. government's steps to encourage Chinese
officials to ``enter into a dialogue with the Dalai Lama or his
representatives leading to a negotiated agreement on Tibet.''
\4\ The report expressed encouragement that Chinese officials
invited the Dalai Lama's envoys to visit China for the third
time in September 2004 and described the Dalai Lama as someone
who ``can be a constructive partner as China deals with the
difficult challenges of regional and national stability.'' The
report noted the gravity of the issue, saying, ``The lack of
resolution of these problems leads to greater tensions inside
China and will be a stumbling block to fuller political and
economic engagement with the United States and other nations.''
The Dalai Lama has said that he does not seek independence
and aims for a solution based on Tibetan autonomy within China.
In March 2005, he told an interviewer, ``This is the message I
wish to deliver to China. I am not in favor of separation.''
\5\ The State Department's Report on Tibet Negotiations
acknowledges the Dalai Lama's position, saying that he ``has
expressly disclaimed any intention to seek sovereignty or
independence for Tibet.'' \6\
The Dalai Lama's envoys held meetings with Chinese
officials twice during the past year. The Dalai Lama's Special
Envoy, Lodi Gyari,\7\ and Envoy, Kelsang Gyaltsen, traveled to
China for the third time in September 2004, meeting with senior
Chinese officials and visiting autonomous Tibetan areas of
Sichuan province.\8\ Gyari characterized the discussions as
``the most extensive and serious exchange of views'' so far. He
cautioned that ``major differences'' exist on ``fundamental''
issues, and that ``flexibility, far-sightedness and vision''
will be necessary to bridge the gap.\9\ The envoys met with
Chinese officials for the fourth round of talks in late June
and early July 2005 at the Chinese Embassy in Bern,
Switzerland.\10\ The talks were the first to take place outside
China. Gyari said afterward that ``major differences on a
number of issues, including on some fundamental ones, continue
to remain,'' but that ``both sides had a positive assessment of
the ongoing process.'' \11\ An official of the Tibetan
government-in-exile explained that the main issue for the two
sides to resolve is the definition of Tibet: \12\ ``While China
sees Tibet as the area included under the Tibet Autonomous
Region, Tibetans claim a much larger area where the culture and
language are Tibetan.'' \13\
The Tibetan government-in-exile's remarks following the
envoys' meetings are aligned more closely with the Dalai Lama's
position than previous statements.\14\ The exiled government
explained its assessment in an annual statement saying that the
``basic principle'' to seek ``genuine national regional
autonomy'' within the framework of China's Constitution cannot
be changed.\15\
Samdhong Rinpoche, who heads the exiled Tibetan government,
pointed to pragmatism as the guiding factor: ``We have to
accept ground realities of the new world order. We feel that
the Dalai Lama's middle way approach to seek genuine autonomy
for Tibetans is an achievable objective and are therefore
moving ahead for it.'' \16\ He played down the idea popular
among some Tibetans, but rejected by the Chinese
government,\17\ that all of the current areas of Tibetan
autonomy should be combined into a single unit.\18\
Chinese officials have rejected the Dalai Lama's approach
and maintain that he seeks Tibetan independence and to ``split
China.'' \19\ A Chinese government spokesman responded to the
State Department Report on Tibet Negotiations by reiterating
preconditions: ``So long as Dalai truly gives up his advocacy
of `Tibet independence,' stops the activities of separating the
motherland and publicly declares and recognizes that Tibet and
Taiwan are inalienable parts of China, we can contact him for
consultation.'' \20\ In 1998, then-President Jiang Zemin
demanded that the Dalai Lama make a statement about Taiwan.\21\
An exiled Tibetan government spokesman responded that it is
``entirely for the people of Taiwan to speak their voice.''
\22\
Contacts so far between the Dalai Lama's envoys and Chinese
officials have not produced concrete results. The dialogue has
the potential to lead to strengthened protection of Tibetan
culture and to improved regional stability and prosperity. The
Dalai Lama is in an unrivaled position to promote a mutually
beneficial outcome but, at age 70, his ability to pursue this
opportunity could wane with advancing age.
Autonomy
Although the preamble of the REAL states that China's
government has an obligation to ``. . . [respect] and [protect]
the right of every minority nationality to manage their own
internal affairs,'' \23\ article 7 of that law voids this
commitment to autonomy by allowing local government in
autonomous regions to manage their affairs only in a manner
that puts the interests of the People's Republic of China as a
whole first.\24\
A 2004 Harvard University study of autonomy in Tibetan
areas of China notes that poor implementation negates the value
of autonomy legislation and erodes the rule of law.\25\ The
report found that at least 161 Chinese laws and regulations
that directly address issues of Tibetan autonomy apply at the
national, provincial, prefectural, or county level.\26\ ``Now
more than ever, the Tibetan issue appears ripe for a settlement
that would preserve Tibetan culture and China's territorial
integrity,'' the report concludes,\27\ and advises Chinese
officials and the Dalai Lama's representatives to conduct
jointly ``an examination of existing laws and regulations in
the context of international norms and standards.'' It goes on
to say:
Such an examination should address not only actual
legislation, but also its implementation at the
national, prefectural, and county levels. In some
instances, China has adopted appropriate laws but
neglected to fully implement them. Many of these laws
contain conditions and caveats that impede or undermine
progress toward their implementation. When the
necessary laws and regulations are found to be absent,
steps should be taken to draft and enact appropriate
measures. When laws have already been promulgated but
not effectively implemented, prompt measures should be
taken to enhance their earliest implementation.\28\
A 2004 East-West Center report is less optimistic and does
not predict a breakthrough in the near term. It cautions,
``Unless the Tibet issue should erupt as a violent conflict,
the factors pushing Beijing to negotiate are likely to be
regarded as insufficiently compelling to justify the risks
entailed. On the other hand, if the current talks break off,
Beijing will be going it alone as it manages the chronic threat
of ethnonationalist discontent.'' \29\ But despite citing
negative factors, the report says that prospects for engagement
have improved, even as the ``window of opportunity to negotiate
a lasting solution draws to a close.'' \30\
Culture, Development, and Demography
Existing government policy initiatives, especially the
Great Western Development (GWD) program implemented in 2000,
exert pressure on Tibetan culture and heritage. Tibetans say
privately that they believe the programs are attracting a
steady flow of ethnic Han migrants into Tibetan areas. The
Qinghai-Tibet railway, which will begin trial operations soon,
and the construction of passenger terminals in Lhasa contribute
to Tibetan concerns. The rights of autonomous Tibetan
governments to manage their local affairs are weak in practice,
leaving Tibetans with few administrative, legislative, and
judicial resources to cope with the changes that confront them.
Long-term prospects for Tibetan culture and self-identity
depend on preserving and developing the role of Tibetan
language in Tibetan life, and on building a solid educational
foundation for a modern and prosperous Tibetan society. This
objective requires an education system that will train Tibetans
in both Tibetan and Mandarin Chinese languages and teach skills
that will enable Tibetans to compete for good jobs and other
economic opportunities. The central, provincial, and autonomous
Tibetan governments operate schools and universities with
bilingual programs designed for Tibetans. Commission staff
delegations visited Tibetan educational institutions in
Qinghai, Gansu, and Sichuan provinces, the TAR, and Beijing and
observed that students, faculty, and administrators seemed
committed to their tasks.\31\
Government statistics on educational achievement show that
most Tibetans are not prepared to compete for employment and
business opportunities in the Han-dominated economic
environment developing around them. Chinese government policies
did not require Tibetans to live with large numbers of Han
until Deng Xiaoping's policy of reform and opening up began to
take effect in the late 1970s and early 1980s. Tibetans
currently have the highest rate of illiteracy of any ethnic
group in China having a population greater than 500,000.\32\
The rate of illiteracy of Tibetans (47.55 percent) is more than
five times higher than China's national average (9.08 percent),
according to 2000 census data.\33\ The TAR rate of illiteracy
(47.25 percent) is the highest in China and is nearly twice as
high as second-ranked Qinghai province (25.44 percent).\34\
Primary school is the only level of educational attainment for
which data show Tibetans nearly on par with the national
average.\35\ In the job market, Tibetans compete with Han
migrants who graduate from universities at more than triple the
rate of Tibetans, and from senior middle school at five times
the Tibetan rate.\36\
The disparity between the level of educational attainment
by urban and rural Tibetans adds to the social and economic
challenges facing Tibetans. Census data for 2000 show that
Tibetans living in TAR cities were 19 times more likely to
reach senior middle school than Tibetans living in rural areas.
Tibetans living in TAR townships were 7.6 times more likely to
do so.\37\ Nearly 85 percent of Tibetans living in the TAR,\38\
and 87 percent of all the Tibetans in China,\39\ live in rural
areas. Rural Tibetans are the largest and least prepared
category of Tibetans facing competition for the new
opportunities created by government economic development
programs.
Officials in Tibetan areas stress the upward trend of
economic indicators, and downplay other issues that concern
Tibetans. Jampa Phuntsog (Xiangba Pingcuo), chairman of the TAR
government, said in May 2005, ``If you have to say there are
some `Tibet issues,' [they] shall be ones related to the
development of Tibet. . . . [W]hat Tibet does need now is only
development, no other issues can prevail.'' \40\ Claiming
success for development policies, he cited 2004 statistics for
the TAR that show steady gains in GDP and personal income.\41\
But the data also show a wide gap between the 1,861 yuan per
capita income of the rural majority of Tibetans and the 8,200
yuan ``disposable income'' of those living in the TAR's urban
areas. Development programs that reach farmers and herders will
benefit the most needy group of Tibetans.
Central government subsidies for infrastructure projects
and government staff salaries, rather than local agricultural
production, manufacturing, and services, provide most of the
TAR economy.\42\ TAR government sector employees earn salaries
that are the third highest in China, behind Beijing and
Shanghai, according to the Tibet Information Network (TIN).\43\
Although urban wages fueled by government subsidies are on the
rise, the Tibetan share is declining, according to TIN.\44\
Central government subsidy of the public sector, driven in part
by the GWD program, has been a principal source of economic
growth in the TAR. Government spending on local administration
and public services has benefited some Tibetans, but now
Tibetan employment in the public sector, the fastest-growing
and highest-paying part of the economy, is falling.\45\
The Golmud-Lhasa section of the Qinghai-Tibet railroad is
scheduled to begin trial operations in July 2006.\46\ The
project is not only the most expensive infrastructure project
in any Tibetan area of China, but also has the greatest
potential to affect Tibetans. When Premier Wen Jiabao visited
Golmud in May 2005, he hailed the railroad as ``a hallmark
project of the large-scale development of the western region''
and praised ``the builders fighting on the frontline of the
Qinghai-Tibet Railway.'' \47\ As work moved into its final
stages, Lhasa area authorities reportedly refused to compensate
at the promised rate some Tibetans whose land was expropriated
for the railroad project.\48\
Chinese laws and official statements lend credibility to
Tibetan concerns that programs such as GWD and projects such as
the Qinghai-Tibet railroad will lead to large increases in Han
migration. State Ethnic Affairs Commission Minister Li Dezhu
wrote in 2000 that a westward flow of ethnic Han would be ``in
keeping with the execution of large-scale western development''
and referred to the potential population shift as ``the peacock
flying west.'' \49\ Implementation regulations for the REAL
issued in May 2005 call for ``professionals of all levels and
types'' to move to autonomous areas, and for local governments
to provide special treatment for newly arriving Han.\50\ So
far, Tibetan officials maintain that there has not been any
significant change in the population mix.\51\
Official Chinese census data for 1990 and 2000 depicts the
Han population in most Tibetan areas as decreasing during the
1990s, a finding at odds with observations by Tibetans and
foreign experts.\52\ Han population decreased in 10 of the 13
Tibetan autonomous areas, according to census data.\53\ The
five largest declines in Han population, ranging from 16 to 25
percent, are recorded for Qinghai province. Even in Haixi
prefecture, which includes the booming city of Golmud and its
rail link to Xining and Beijing, the Han population supposedly
dropped 9 percent. The data show increases in Han population in
only three Tibetan areas.\54\ According to this census data,
Han population in Tibetan autonomous areas fell by 3.3 percent
during a decade when development policy and economic conditions
encouraged Han to work and conduct business in Tibetan
areas.\55\ The method for conducting the 2000 census called for
local enumeration to include temporary residents, recent
arrivals, and persons without a household registration.\56\ The
decline in Han population portrayed by census data contradicts
the visible changes evident in many Tibetan towns and cities,
and raises questions about its completeness and
reliability.\57\
Tibetan Culture and Human Rights
The Chinese government did not begin major new political
campaigns across Tibetan areas during the past year. CECC
Annual Reports for 2002 through 2004 discussed how government
policies that promote a national identity defined in Beijing,
and that favor atheism, discourage Tibetan aspirations to
foster their distinctive culture and religion. As a result of
these policies, Tibetan rights to their constitutionally
guaranteed freedoms of religion, speech, and assembly are
subject to strict constraint. Expressions and non-
violent actions that officials suspect could undermine Party
supremacy are sometimes punished as threats to state security.
The downward trend in the number of known Tibetan political
prisoners suggests that Tibetans are avoiding the risks of
direct criticism or protest against Chinese policies and are
turning to education, arts, and religion for ways to express
and protect their culture and heritage.\58\
As reported incidents of Tibetan political protest decline,
Chinese censors and police watch for other signs of Tibetan
resentment or nationalism. Writing, publishing, or sharing
literature that laments cultural loss, or that advocates ethnic
ambitions not sanctioned by the Party, is sometimes repressed
or punished. Penalties range from loss of employment or housing
to imprisonment. For example, authorities stripped Tibetan
writer Oezer (Weise) of her job, residence, insurance and
retirement benefits, and barred her from applying for a
passport after a collection of her essays was published in
Guangzhou, and then banned, in 2003.\59\ The volume presented
thoughts ``relating to Tibet's history, personalities, and way
of life.'' Authorities ruled that positive references to the
Dalai Lama were ``political errors.'' \60\ The Tibetan Cultural
Association in Lhasa, Oezer's employer, assembled a group to
conduct ``thought correction'' with her. She left Lhasa to
avoid pressure to recant her views and abandon Buddhism.\61\
In Qinghai province, five monks were imprisoned in January
2005 for publishing a poem in a monastery newsletter. Security
officials considered the poem to be politically sensitive and
ordered the monks to serve terms of two to three years of re-
education through labor.\62\ The poem allegedly expressed
admiration for two monks from the same monastery who were
sentenced in 2002 to three years imprisonment for advocating
Tibetan independence.
Prominent Tibetans, especially religious leaders, whom
officials believe have links to the Dalai Lama, risk
persecution or punishment. In some cases, such as those of
Tenzin Deleg and Bangri Tsamtrul, prosecutors accuse a Tibetan
leader of supporting a violent act allegedly committed by
another Tibetan. In these cases, authorities refuse to disclose
the details of evidence directly linking the prominent Tibetan
and the alleged criminal act.
Three Tibetan political prisoners are serving life
sentences for crimes that include ``endangering state
security.'' Two cases involve contact with the Dalai Lama; the
third is based on printing pro-independence leaflets.
<bullet> Tenzin Deleg (A'an Zhaxi), recognized by the
Dalai Lama as a reincarnate lama, was convicted in a
closed court in Sichuan province in November 2002 of
conspiring to cause explosions and inciting
splittism.\63\ Chinese authorities claim that his case
involves state secrets and refuse to disclose the
details of evidence that shows a direct link between
him and the alleged criminal acts. Tenzin Deleg
professed his innocence in a smuggled tape recording.
The provincial high court commuted his reprieved death
sentence to life imprisonment in January 2005.
<bullet> Bangri Tsamtrul (Jigme Tenzin Nyima), a lama
who lived as a householder, was convicted of inciting
splittism and sentenced to life imprisonment in a
closed court in Lhasa in September 2000.\64\ He and his
wife Nyima Choedron managed a children's home in Lhasa.
His sentencing document lists evidence against him that
includes meeting the Dalai Lama, accepting a donation
for the home from a foundation in India, and a business
relationship with a Tibetan contractor who lowered a
Chinese flag in Lhasa in 1999 and tried to blow himself
up. Jigme Tenzin Nyima acknowledged meeting the Dalai
Lama, accepting the contribution, and knowing the
contractor, but he denied the charges against him and
rejected the court's portrayal of events.\65\
Authorities sentenced Nyima Choedron to 10 years
imprisonment and subsequently reduced her sentence to
seven years and six months.\66\
<bullet> Choeying Khedrub, a monk of Tsanden Monastery
in the TAR, was sentenced in 2000 to life imprisonment
for his role in a group of men who allegedly printed
pro-independence leaflets. According to information
that the Chinese government provided to the United
Nations Working Group on Arbitrary Detention (UNWGAD),
he was found guilty of endangering state security and
``supporting splittist activities of the Dalai
clique.'' \67\ The UNWGAD reports that the Chinese
response ``mentions no evidence in support of the
charges, or if they used violence in their
activities,'' and finds that the government ``appears''
to have misused the charge of endangering state
security.\68\
Ngawang Phuljung and Jigme Gyatso are examples of Tibetans
serving long sentences for the obsolete crime of
counterrevolution handed down under the 1979 Criminal Law. Both
of them visited India and returned to the TAR without official
papers. The UNWGAD issued opinions rejecting the legitimacy of
both convictions.
<bullet> Ngawang Phuljung, a monk of Drepung Monastery,
was sentenced in 1989 to 19 years imprisonment for
crimes that included ``forming a counterrevolutionary
organization'' and ``spreading counterrevolutionary
propaganda.'' \69\ A 1993 UNWGAD decision declared his
imprisonment arbitrary, and called on China's
government to ``remedy the situation.'' Ngawang
Phuljung is currently the longest-serving Tibetan
convicted of counterrevolution.
<bullet> Jigme Gyatso, a former monk who operated a
restaurant, was sentenced in 1996 to 15 years
imprisonment for counterrevolution. Chinese officials
told a UNWGAD delegation in September 2004 that he was
guilty of ``planning to found an illegal organization
and seek to divide the country and damage its unity.''
\70\ Another UNWGAD opinion on the case found that
``there is nothing to indicate that the `illegal
organization' . . . ever advocated violence, war,
national, racial, or religious
hatred.'' Jigme Gyatso was ``merely exercising the
right to freedom of peaceful assembly with others in
order to express opinions.'' \71\
The CECC Political Prisoner Database (PPD) listed
approximately 120 current cases of Tibetan political
imprisonment in June 2005, less than one fifth of the number in
late 1995.\72\ The number of Tibetan political prisoners
continues to decline as Tibetans imprisoned for political
protests during the late 1980s to mid-1990s complete their
sentences and are released. Sentence information is available
for two-thirds of the current prisoners. Their average sentence
is 10 years and six months.\73\ Monks and nuns make up 62
percent of current Tibetan political prisoners, compared to 75
percent in 2002.\74\ Lhasa's TAR Prison (Drapchi) holds 50
known Tibetan political prisoners, though the actual number is
likely to be somewhat higher. They are serving an average
sentence of 12 years and six months. Chinese authorities did
not grant early release from prison to any high-profile Tibetan
political prisoner during the past year.
Nearly 70 Tibetan political prisoners are believed to be
imprisoned in the TAR, nearly 40 in Sichuan province, and fewer
than 15 in Qinghai province, based on PPD data in June 2005.
None are documented in Gansu or Yunnan provinces. In Sichuan
province, the ratio of Tibetan political prisoners to the
provincial Tibetan population is 29.9 prisoners per million
Tibetans. The ratio is 27.6 per million in the TAR, and 12 per
million in Qinghai province. The lower rates of political
detention in Qinghai, Gansu, and Yunnan coincide with a
religious and educational environment that experts privately
say is not as repressive as in Sichuan province or the TAR.
Conversely, government authorities in the areas of the TAR and
Sichuan with the highest rates of political detention are known
to deal with Tibetans and their culture more harshly.\75\
VII. North Korean Refugees in China
FINDINGS
<bullet> The Chinese government forcibly repatriates
North Koreans seeking refuge in China from starvation
and political persecution in North Korea, contravening
its obligations under the 1951 Convention Related to
the Status of Refugees and its 1967 Protocol. A
compelling case exists for recognizing North Koreans in
China as refugees: the Democratic People's Republic of
Korea government regularly denies food to particular
groups for political reasons, and refugees returned to
North Korea face long prison terms, torture, or
execution.
<bullet> The Chinese government classifies all North
Koreans in China ``illegal economic migrants'' and
denies the Office of the United Nations High
Commissioner for Refugees access to this vulnerable
population. Living conditions for North Koreans in
China are harsh, with women and children particularly
vulnerable to trafficking and prostitution.
Conditions within China remain bleak for North Koreans
fleeing starvation and political persecution in their homeland.
Women and children are vulnerable to trafficking and
prostitution. More than 75 percent of North Korean immigrants
are women, and they are often forced into prostitution or other
exploitative relationships by professional brokers.\1\Children
have no access to schools and often survive by begging on the
streets. Some refugees have survived for years living in caves
in the harsh northern climate.\2\ Others move from one hiding
place to another to avoid detection by public security forces
or by Chinese citizens who receive government rewards for
informing police of refugees' locations.\3\ Conditions in
detention centers for those awaiting repatriation are cramped,
and detainees face mistreatment from guards.\4\
Despite the harsh conditions within China, North Koreans
take immense risks to avoid being returned to the DPRK. In
April 2004, 80 North Korean detainees in Tumen Detention Center
rioted to avoid being sent back to the DPRK. In another prison
camp, 110 detainees went on a hunger strike to protest their
impending refoulement.\5\
The Chinese government refuses entry to representatives of
the UN High Commissioner for Refugees (UNHCR) into northeast
China to screen North Koreans seeking protection. This policy
contravenes a 1995 UN-Chinese Agreement stating that ``UNHCR
personnel may at all times have unimpeded access to refugees
and to the sites of UNHCR projects in order to monitor all
phases of their implementation.'' \6\ Chinese security forces
guard the UNHCR office in Beijing,\7\ and a number of foreign
consulates, chiefly to repel North Koreans wishing to present
refugee petitions or seeking asylum. The Chinese government
classifies all North Koreans in China as ``illegal economic
migrants'' and not refugees.\8\ The Chinese government claims
it must return these ``illegal migrants'' to North Korea under
a 1961 agreement with the DPRK.\9\
A number of Western analysts note that the North Korean
government regularly denies food to particular groups or
regions for political reasons, a practice which may make those
fleeing to China in search of food and other ``economic goods''
potential refugees under international law.\10\ As the High
Commissioner for Refugees noted in 2003, ``An analysis of
currently available information recently carried out by our
Department of International Protection concludes that many
North Koreans may well be considered refugees.'' \11\ Moreover,
those who flee to China may have a claim to refugee status
because they are considered ``traitors'' for defecting and face
persecution upon their return to North Korea.\12\ The State
Department estimates that between 10,000-30,000 North Korean
refugees are currently hiding in northeastern China. Several
non-governmental groups estimate the number of refugees to be
between 100,000-300,000.\13\
The Chinese government forcibly repatriates North Koreans
to the DPRK where they face long prison sentences, torture, and
possible execution. The State Department estimates that Chinese
security forces detained and forcibly returned several thousand
North Koreans to the DPRK in 2004.\14\ A South Korean newspaper
has reported that North Korean agents regularly enter Chinese
territory and kidnap, with the tacit support of Chinese public
security officials, South Korean activists assisting North
Korean asylum seekers.\15\ The North Korean Penal Code
criminalizes defection. Article 47 of the Penal Code states
that ``one who escapes to another country or to the enemy is in
betrayal of his motherland and people'' and will receive a
minimum punishment of seven years labor re-education, while
serious violators will be executed.\16\ Video tapes smuggled
out of North Korea in the winter of 2004-2005 show public
executions of repatriated ``human smugglers,'' a crime that one
international NGO notes the DPRK government commonly applies to
those who help North Koreans flee the country.\17\
China's refoulement of North Koreans contravenes its
obligations under the 1951 Convention Relating to the Status of
Refugees and its 1967 Protocol. The Convention and its Protocol
state that ``no Contracting States shall expel or return
(`refouler') a refugee in any manner whatsoever to the
frontiers of territories where his life or freedom would be
threatened on account of his race, religion, nationality,
membership of a particular social group or political opinion.''
\18\
The Chinese government apparently believes that a more
relaxed policy might result in more North Koreans fleeing into
an area of China with high unemployment rates. ``If we grant
political asylum to one refugee today,'' one official
reflected, ``there could be thousands or millions of North
Koreans who might seize the opportunity and pour into China.''
\19\ The Chinese government has
increased its monitoring of North Koreans, in part because some
refugees have turned to crime to survive in China.\20\ The
government apparently intensified surveillance and detentions
of North Korean refugees following high profile asylum
cases,\21\ such as in March 2005 when eight North Koreans
rushed into a Japanese school in Beijing and were escorted to
the Japanese Embassy.\22\ In January, Chinese security forces
disbanded a press conference on the refugee issue called by
four South Korean legislators visiting Beijing.\23\
The Chinese government offers rewards to citizens who turn
in ``illegal migrants'' and imprisons or imposes fines up to
RMB 30,000 (USD $3,600) on those assisting them.\24\ In
December 2003, South Korean Reverend Choi Bong-il was sentenced
to nine years imprisonment for assisting North Koreans transit
to a third country. In May 2003, South Korean citizen Choi
Yong-hun was sentenced to five years in prison for his role in
assisting North Koreans flee through China to South Korea.\25\
Chinese authorities detained American citizen Phillip J. Buck
on May 9, 2005 for assisting North Korean refugees in China. He
is currently detained in the Yanji PSB Detention Center, though
no formal charges have been made public.\26\
VIII. Developments in Hong Kong During 2005
The United States supports a stable, autonomous Hong Kong
under the ``one country, two systems'' formula articulated in
the Sino-U.K. Joint Declaration and the Basic Law.\1\ The Hong
Kong people continue to enjoy an open society in which the
freedoms of religion, speech, and assembly are respected, but
the Commission is troubled by a continuing pattern of central
government interference in Hong Kong local governance through
interpretations of the Basic Law. The Commission emphasizes its
belief in the importance of the central government's obligation
to give Hong Kong the ``high degree of autonomy'' promised in
the Basic Law and strongly supports the provisions of the Basic
Law that provide for the chief executive and the entire
legislature to be elected through universal suffrage.\2\
Central Government Interference in Hong Kong Local Governance
In April 2005, the National People's Congress Standing
Committee (NPCSC) issued a Basic Law interpretation to change
the length of the next chief executive's (CE)\3\ term of office
from five to two years,\4\ continuing a pattern of interference
by the central government in the local governance of Hong
Kong.\5\ Following the resignation of Tung Chee-hwa as CE in
March 2005,\6\ pro-Beijing and pro-democracy Hong Kong
legislators debated whether his successor would serve the full
five-year term prescribed by the Basic Law or only the
remaining two years of Tung's term.\7\ Pro-democracy advocates
launched a legal challenge against the two-year term proposal
in the Hong Kong courts, but the judicial review process was
cut short when the Hong Kong government, under pressure to
ensure that the CE election was held on time, requested that
the NPCSC resolve the controversy by interpreting the relevant
articles in the Basic Law.\8\ As expected, the NPCSC ruled in
favor of a two-year term, effectively closing the issue for
further discussion.\9\
Compared with previous interpretations, however, central
authorities and their Hong Kong supporters showed greater
responsiveness to the viewpoints of pro-democracy advocates. In
addition to previously established consultative practices,
senior Beijing officials met in Shenzhen to discuss the CE term
issue with pro-democracy legislators, some of whom had been
banned from entering the mainland.\10\ Some pro-democracy
leaders saw this meeting as a gesture of goodwill and a sign
that central government leaders wish to mend ties.\11\ The
exclusion of other pro-democracy legislators, however, supports
the criticism that the meeting was a ``public relations
exercise'' rather than an effort to engage in genuine
dialogue.\12\
Independent Judiciary
The Hong Kong judiciary demonstrated its continued
independence when Hong Kong's commitment to rights and law were
tested against Communist Party-led abuses on the mainland. A
May 2005 decision by the Hong Kong Court of Final Appeal (CFA)
overturned the convictions of eight Falun Gong practitioners
and protected citizen rights to demonstrate, despite the
central leadership's ongoing campaign to eliminate the Falun
Gong movement. In 2002, Hong Kong police arrested the
practitioners for obstructing a public thoroughfare during a
peaceful protest outside a government office building.\13\ In
its decision, the CFA reasoned that the public's interest in
the use of public facilities must be balanced against the
constitutionally protected rights of assembly and expression
enshrined in the Basic Law.\14\ The Commission notes that the
May 2005 CFA decision might not have been possible if the Hong
Kong people had not soundly rejected the proposed Article 23
national security legislation in 2003. The Article 23
legislation would have permitted the Hong Kong government to
ban any Hong Kong-based group, such as Falun Gong, whose parent
organization had already been publicly banned by the central
government on national security grounds.
A May 2005 news article reported that Hong Kong police
officials welcomed the ruling because ``they felt the ruling
had cleared previously grey areas and would make it easier for
them to decide whether a protest had caused an unreasonable
obstruction to the public'' and ``hoped that with more clear-
cut guidelines on what kind of protests should be stopped, the
police would not be accused of acting under orders from Beijing
in stopping events that mainland authorities may not like.''
\15\ Mainland news media, however, criticized the CFA's
decision; one editorial found it ``regrettable that CFA has
deviated from the principle that all are equal before the law
and has failed to strike a fair and reasonable balance between
the public interest and the demonstrators' rights.'' \16\ The
editorial suggested Chinese government discomfort with the idea
that the application of public obstruction laws must be
reasonable, and that fundamental constitutional rights must be
given substantial weight in considering reasonableness.\17\
IX. Appendix: Commission Activities in 2004 and 2005
Hearings
November 18, 2004 Religious Freedom in China
Preeta Bansal, Chair,
U.S. Commission on
International Religious
Freedom
Ngawang Sangdrol,
International Campaign
for Tibet
Bob Fu, President,
China Aid Association
Joseph Kung, President,
The Cardinal Kung
Foundation
Pitman Potter,
Director, Institute of
Asian Research and
Professor of Law,
University of British
Columbia
July 26, 2005 Law in Political Transitions: Lessons from
East
Asia and the Road Ahead
for China
Gretchen Birkle,
Principal Deputy
Assistant Secretary,
Bureau of Democracy,
Human Rights, and
Labor, Department of
State
Jerome A. Cohen,
Professor of Law, New
York University School
of Law; Adjunct Senior
Fellow on Asia, Council
on Foreign Relations;
Of Counsel, Paul,
Weiss, Rifkind, Wharton
& Garrison
John Fuh-sheng Hsieh,
Professor, Department
of Government and
International Studies,
University of South
Carolina
John K. Ohnesorge,
Professor of Law,
University of Wisconsin
School of Law;
Professor and Assistant
Director of East Asian
Legal Studies,
University of Wisconsin
Law School
Roundtables
December 10, 2004 Coal Mine Safety in China: Can the Accident
Rate be Reduced?
Dave Feickert,
Consultant, Industrial
Relations, Ergo-
nomics and Energy
Peter McNestry, Member,
Numerous British,
European, and
International Coal Mine
Safety Boards and
Committees
Leo Carey, Executive
Director of Government
Services, National
Safety Council
February 7, 2005 Environmental NGOs in China: Encouraging
Action and Addressing
Public Grievances
Elizabeth Economy, C.V.
Starr Senior Fellow and
Director of Asia
Studies, Council on
Foreign Relations
Patricia Adams,
Executive Director,
Probe International
Jiang Ru, Ph.D. in
Environmental
Management and
Planning, Stanford
University
March 10, 2005 Public Intellectuals in China
Merle Goldman,
Professor Emerita of
Chinese History, Boston
University; Executive
Committee Member, Fair-
bank Center for East
Asia Research, Harvard
University
Hu Ping, Chief Editor,
Beijing Spring
Perry Link, Professor
of Chinese Language and
Literature, Princeton
University
March 14, 2005 China's New Regulation on Religious Affairs:
A
Paradigm Shift?
Carol Lee Hamrin,
Consultant and Research
Professor, George Mason
University
Daniel Bays, Professor
of History and Head of
the Asian Studies
Program, Calvin College
Mickey Spiegel, Senior
Researcher, Human
Rights Watch
April 11, 2005 China's Ethnic Regional Autonomy Law: Does
it Protect Minority
Rights?
David L. Phillips,
Senior Fellow, Council
on Foreign Relations
Gardner Bovingdon,
Assistant Professor,
Department of Central
Eurasian Studies,
Indiana University
Christopher P. Atwood,
Associate Professor,
Department of Central
Eurasian Studies,
Indiana University
May 16, 2005 Intellectual Property Protection as Economic
Policy: Will China Ever
Enforce its IP Laws?
Daniel C.K. Chow,
Robert J. Nordstrom
Designated Professor of
Law, Ohio State
University Michael E.
Mortiz College of Law
Eric H. Smith,
President,
International
Intellectual Property
Alliance
James M. Zimmerman,
Partner and Chief
Representative, Beijing
Office, Squire, Sanders
& Dempsey LLP
May 23, 2005 Unofficial Religions in China: Beyond the
Party's
Rules
Patricia M. Thornton,
Associate Professor of
Political Science,
Trinity College
David Ownby, Director,
Center of East Asian
Studies, University of
Montreal
Robert P. Weller,
Professor of
Anthropology and
Research Associate,
Institute on Culture,
Religion and World
Affairs, Boston
University
June 22, 2005 Forced Labor in China
Harry Wu, Founder and
Executive Director,
Laogai Research
Foundation
Jeff Fiedler,
President, Food and
Allied Service Trades
Department, AFL-CIO
Gregory Xu, Researcher,
Falun Gong Project
September 2, 2005 China's Household Registration (Hukou)
System:
Discrimination and
Reform
Fei-Ling Wang,
Professor, the Sam Nunn
School of International
Affairs, Georgia
Institute of Technology
Chloe Froissart,
Researcher, Center for
International Studies
and Research and Center
for Research on
Contemporary China
Web Resources
The Commission maintains a Web site at http://www.cecc.gov,
which features announcements of upcoming events, topical news
items on issues within the Commission's mandate, transcripts of
hearings and roundtables, and basic source materials on human
rights and the rule of law. In addition, the CECC Virtual
Academy (http://www.cecc.gov/virtual Acad/index.phpd) provides
users with convenient access to a wide array of news, useful
Web links, and information about China prepared by Commission
staff and other experts. Organized by topic area, the Virtual
Academy currently has information on freedom of expression;
commercial rule of law; criminal justice; labor rights; freedom
of religion; and China's Uighur and Tibetan minorities. The
Virtual Academy also provides timely summaries of stories from
English and Chinese-language news media on important
developments in human rights and rule of law, updated
throughout the day. For those interested in learning more about
China, the Virtual Academy includes extensive information on
China's history, culture, and government.
Newsletter
On June 1, 2005, the Commission published the first edition
of the China Human Rights and Rule of Law Update, a monthly
newsletter that includes news and analysis from the Virtual
Academy, as well as announcements of recent and upcoming
Commission events. Current and archived editions of the
newsletter are available on the Commission Web site at http://
www.cecc.gov/pages/virtualAcad/newsletterListing.phpd. Those
wishing to receive the newsletter may join the Commission's e-
mail list by going to http://www.cecc.gov/pages/general/
subscribe.phpd.
X. Endnotes
<dagger> Voted to approve: Senators Hagel, Smith, DeMint, Martinez,
Baucus, Levin, Feinstein, Dorgan; Representatives Leach, Dreier, Wolf,
Pitts, Aderholt, Levin, Kaptur, and Brown; Deputy Secretary Law, and
Under Secretary Dobriansky.
Voted not to approve: Senator Brownback.
Answered ``present'': Representative Honda.
Notes to Section III(a)--Special Focus for 2005: China's Minorities
and Government Implementation of the Regional Autonomy Ethnic Law
\1\ The Chinese government uses a Stalinist formula to determine
which groups constitute unique minzu, variously translated as
``nationalities'' or ``ethnic groups.'' Accordingly, to be considered a
nationality, a group must have a common language, territory, economic
life, and culture. Stalin, J.V. ``Marxism and the National Question,''
in Works (Moscow: Foreign Languages University Publishing House, 1953),
302. More than 400 groups registered as separate nationalities in the
1953 census, with more than 240 requesting recognition in Yunnan
Province alone. The government was only able to winnow the number to 55
after awkwardly gerrymandering ethnic boundaries by sending work teams
of anthropologists and government officials to the countryside to
determine which groups ``objectively'' constituted unique
nationalities. Many groups continue to contest the government's
classification system. For details on the classification process, see
Katherine Palmer Kaup, Creating the Zhuang: Ethnic Politics in China
(Boulder: Lynne Rienner Press, 2000); Katherine Palmer Kaup
``Regionalism and Ethnicnationalism in the People's Republic of
China,'' 172 China Quarterly, 863-884 (2002); and Fei Xiaotong,
Collected Works of Fei Xiaotong [Fei Xiaotong xuanji] (Fuzhou: Haixian
Wenyi Chubanshe, 1996), 285.
\2\ S. Robert Ramsey, The Languages of China (Princeton: Princeton
University Press, 1987), 157-292. Many of the minority languages are
further divided into mutually unintelligible dialects.
\3\ The Uighurs, Kyrgiz, Kazahks, Uzbeks, and Tajiks in Xinjiang,
for example, all have ethnic counterparts in neighboring countries, as
do the Zhuang, Miao, Dai, and Shui in Yunnan and Guangxi.
\4\ The Chinese government and the other five members of the
Shanghai Cooperation Organization (SCO) signed an agreement on June 2,
2005, to take ``specific steps to step up the efficiency of cooperation
in ensuring stability and security, including holding joint
antiterrorist training exercises, training personnel and exchange of
experience in fighting terrorism, separatism, and extremism.''
``Kazakhstan: SCO Officials Express Concern Over Terrorist Levels in
Central Asia,'' Almaty Interfax-Kazakhstan, 2 June 05 (FBIS, 2 June
05).
\5\ Chinese President Hu Jintao noted in May 2005 that the per
capita GDP in minority areas is only 67.4 percent of the national
average and rural per capita income only 71.4 percent of the national
average. Hu Jintao, ``Opening Speech to the Ethnic Affairs Work
National Conference'' [Hu Jintao zai zhongyang minzu gongzuo huiyishang
de jianghua], State Ethnic Affairs Commission Web site, 27 May 05. This
figure, however, does not indicate the severity of economic
discrepancies, as Han Chinese within minority areas typically have
higher incomes than the minorities. The government tightly controls
statistics on Han-minority economic discrepancies, and published
statistics report figures based on regional differences rather than
providing breakdowns by ethnic groups. Kaup, Creating the Zhuang, 149-
53. Numerous factors contribute to minority poverty. Minorities are
concentrated in harsh geographical terrains on China's periphery and
lack the capital needed to extract natural resources in their
territories. Poor infrastructure and low educational levels also
contribute to their poverty. Government policies have exacerbated
discrepancies in wealth between the minorities and Han. See Katherine
Palmer, ``Nationalities and Nationality Areas,'' in China Handbook, ed.
Chris Hudson (Chicago: Fitzroy Dearborn, 1997), 276-85. Several Western
analysts report that central development strategies in Xinjiang since
the launching of the Great Western Development campaign in 2000 have
disproportionately favored Han Chinese. Nicholas Becquelin, ``Xinjiang
in the Nineties,'' 44 The China Journal 65, 82-3, 85 (2000); Gardner
Bovingdon, Autonomy in Xinjiang: Han Nationalist Imperatives and Uyghur
Discontent (Washington: East-West Center Washington, 2004), 39. Uighur
human rights advocate Rebiya Kadeer testified that the Great Western
Development policies have had a deleterious impact on the Uighurs and
resulted in the ``bleakest period in Uighur history.'' Congressional
Human Rights Caucus Members Briefing, The Human Rights Situation of the
Uighurs in the People's Republic of China, 28 April 05.
\6\ Hu Jintao, ``Opening Speech to the Ethnic Affairs Work National
Conference.''
\7\ Tibetans Lose Ground in Public Sector Employment, Tibet
Information Network (Online), 20 January 05; ``China's Influence in
Central Asia (Part 5): Uighurs Count the Cost of China's Quest for
Stability,'' Radio Free Asia (Online), 24 November 04.
\8\ A Ningxia government report notes that only 5 percent of the
minority populations in Ningxia and the Tibetan Autonomous Region were
literate in 1949. By 1998, that figure had risen to 89.5 percent and 48
percent respectively, though these rates remained below the national
average. ``Implementing the Regional Autonomy System'' [Shixing minzu
quyu zizhifa zhidu], Ningxia Government Web site.
\9\ Wen Jun, ``Assessment of the Stability of China's Minority
Economic Policy 1949-2002'' [Zhongguo shaoshu minzu jingji zhengce
wendingxing pinggu], Development Research, No. 3, 2004, 40-45. Han-
minorities discrepancies in per capita income more than tripled in the
first decade of reforms. Yang Zuolin, A General Discussion of Minority
Economics [Minzu diqu jingji fazhan tongsu jianghua] (Kunming: Yunnan
People's Press, 1993), 12. Minorities have had difficulty attracting
foreign capital given their poor infrastructure, poorly trained labor
force, and low levels of trade and private enterprise. 1994 tax
revisions further exacerbated discrepancies in wealth.
\10\ The Tibetan illiteracy rate (47.55 percent), for example, is
five times the national average (9.08 percent). Tabulation drawn from
2000 Population Census of the People's Republic of China (Beijing:
China Statistics Press, August 2002), Table 2-3.
\11\ ``Implementing `China's Minority Education Regulations' Placed
on Agenda,'' [``Zhongguo shaoshu minzu jiaoyu tiaoli'' de zhiding
lierule yishi richeng], State Ethnic Affairs Commission Web site, 16
June 05.
\12\ Regional Ethnic Autonomy Law [hereinafter REAL], enacted 31
May 84, amended 28 February 01.
\13\ The relationship between minority areas and the central
government is reflected in an official news report, ``The Central Party
Puts Forth A Strategy for Xinjiang's Development and Stability''
[Zhonggong zhongyang zuochu Xinjiang fazhan yu wending zhongda zhanlue
bushu], Xinhua (Online), 18 May 04. The report describes a meeting of
the top-ranking government officials in Xinjiang called ``to transmit
the Central Party's Comprehensive Work Plan Regarding Xinjiang's
Economic Development and Social Stability, and to develop plans for
implementing it.'' At the meeting, Wang Lequan, Politburo member and
Party General Secretary of Xinjiang, urged ``all party and government
officials from all levels within the autonomous region to earnestly
study and adopt the spirit of the Center's comprehensive plan. We must
focus all of our thinking on the spirit of the Center's directive, and,
with a strong sense of enthusiasm and duty, quickly develop concrete
implementation measures that blend each localities' and departments'
concrete circumstances in order to rigorously promote all of these
Xinjiang projects.'' Xinjiang's autonomy rests in how best to implement
central directives according to local circumstances. In many cases,
this results in policies more restrictive of individual liberties than
those promoted by the central government. The report cited here, for
example, advocates strengthening the role of the predominately Han,
paramilitary Xinjiang Production and Construction Corps in order to
promote regional stability.
\14\ REAL, art. 7.
\15\ Ibid., arts. 4-7, 19.
\16\ Ibid., arts. 4-7, 20.
\17\ The Chinese government has imposed the fewest controls on
minorities that accept central authority, which in turn have made these
groups more willing to cooperate with Han Chinese. Mutual distrust
between Han authorities and several minority groups has led to tighter
government controls in some areas, however, exacerbating ethnic
tensions according to both Chinese and Western analysts. See, for
example, Ma Mingliang, ``Muslims and Non-Muslims Can Coexist in Harmony
in China, as They Do in Malaysia, If They Understand Each Other's
Culture Better,'' Islam in China, 31 Jul 05 (FBIS, 6 September 05);
Bovingdon, Autonomy in Xinjiang: Han Nationalist Imperatives and Uyghur
Discontent.
\18\ REAL, art. 9. Authorities sentenced four Uighur boys to three
and a half years in prison after a schoolhouse brawl in April 2005, on
the charge of ``undermining the friendship of the nationalities.''
``Uighur Youths, Teacher Detained After School Brawl, Residents Say,''
Radio Free Asia (Online), 21 June 05.
\19\ Minorities in southwestern China live in closer proximity to
Han Chinese than do Tibetans and Uighurs, who are separated from
predominately Han-populated regions in central China by mountain ranges
and deserts. Although many of the minorities in southwestern China live
in single-ethnicity villages, often these villages will be interspersed
in close proximity to those of other minority groups. Southwestern
minorities tend to be segregated by villages rather than by larger
administrative areas, whereas distances between communities of
different ethnic groups tend to be greater in the Northwest. Many of
the southwestern minority groups are also internally divided and have
little interest in mobilizing against Han Chinese authority. For
further detail see Kaup, Creating the Zhuang, 171-81; and Thomas
Heberer, ``Nationalities Conflict and Ethnicity in the People's
Republic of China, With Special Reference to the Yi in the Liangshan Yi
Autonomous Prefecture,'' in Perspectives on the Yi of Southwest China,
ed. Steven Harrel (Berkeley: University of California, 2001), 232-7.
\20\ State Council Regulations on the Implementation of the REAL,
issued 11 May 05, art. 8.
\21\ Ibid., arts. 30 and 34.
\22\ Ibid., arts. 31 and 32.
\23\ Ibid., art. 2.
\24\ ``South-Central Nationalities University Opens Legal Aid
Clinic'' [Zhongnan minzu daxue chengli falu huanzhu zhongxin], Tianshan
Net (Online), 21 March 05; ``Suzhou Wujiang City Establishes New Social
Services System for Migrant Minority Workers'' [Suzhou Wujiang shi
chuang xin wailai liudong shaoshu minzu fuwu tizhi], State Ethnic
Affairs Commission Web site, 18 August 05; ``Jiangsu's Qiansu City
Aggressively Expands New Approaches to Help Minority Migrants''
[Jiangsu Qiansu shi jiji shensu xinshi xia fuwu ``wailai'' yu
``waichu'' shaoshu minzu de youxiao tujin], State Ethnic Affairs
Commission Web site, 18 August 05.
\25\ ``Open Letter from the Darhad Mongols,'' Southern Mongolia
Human Rights Watch (Online), March 2005.
\26\ For example, Articles 15, 17, 18, and 22 of the State Council
Regulations for the Implementation of the REAL require autonomous
regions to give priority to border regions and minorities with small
populations when making investment decisions. Bilingual education must
be promoted, and autonomous governments are required to ``guide and
organize'' local populations to seek jobs outside of their localities.
Although the central government often encroaches on the autonomous
governments' authority to determine their development strategies
independently, the REAL in theory gave the autonomous regions the
authority to control these policy decisions which are now determined by
the central government.
\27\ The Party monitors and imposes strict controls on how minority
cultures are represented in popular, official, and scholarly discourse.
Controls over minority representation have been imposed on all minority
groups, not simply on those who have strained relations with Han
Chinese and the predominately Han government. For example, though
authorities regularly arrest Uighurs who display overt signs of ethnic
pride, government authorities in Guangxi have criticized Zhuang authors
who display too little ethnic pride. Kaup, Creating the Zhuang, 118-9.
\28\ Article 7 of the REAL requires autonomous governments to
``place the interests of the state as a whole above anything else.''
\29\ The Constitution provides for the establishment of provincial-
level autonomous regions, autonomous prefectures, and autonomous
counties. The government began creating autonomous townships and
villages in 1993 with the State Council's passage of the Regulation on
the Administrative Work on Ethnic Villages [Minzu xiang xingzheng
gongzuo tiaoli], issued 29 August 93. By 2003 the government had
established five provincial-level autonomous regions, 30 autonomous
prefectures, 120 autonomous counties, and 1,173 autonomous villages.
The government decided which areas would be granted autonomous status
``through consultation between the government of the next higher level
and the representatives of the minority or minorities concerned.''
General Program for the Implementation of Regional Autonomy for
Minorities [Zhonghua renmin gongheguo minzu quyu zizhi shishi gangyao],
issued 8 August 52, art. 9. Some members of the larger minority groups
express concerns privately that the regional autonomy policy
disproportionately favors smaller groups. Commission Staff Interviews.
Many Uighurs and Zhuang note that within the provincial-level Xinjiang
Uighur Autonomous Region and the Guangxi Zhuang Autonomous Region,
several minority groups have their own autonomous prefectures or
counties. Once established, these smaller autonomous areas are eligible
for special development assistance funds that the central and
provincial governments earmark for county-level autonomous governments.
The Bayinguoleng Mongol Autonomous Prefecture in Xinjiang contains one-
quarter of Xinjiang's total land. Although only 4.46 percent of the
Bayinguoleng population is Mongol and 34.25 percent is Uighur, the
Chinese Constitution and the REAL require that the head of the
prefectural government be Mongol. In another example, a portion of
Guangxi's poverty alleviation funds is earmarked for minority counties,
which means that Bama Yao Autonomous County (17.24 percent Yao and
69.46 percent Zhuang) is eligible for certain development assistance
programs not available to nearby Jingxi County, which does not have
autonomous standing despite the fact that over 99 percent of its
population is ethnically Zhuang. Article 16 of the Election Law also
allows minorities with small populations a greater number of People's
Congress delegates. PRC Election Law for the National People's Congress
and Local People's Congresses, enacted 1 July 79, amended 10 December
82, 2 December 86, 28 February 95, 27 October 04. Some Western experts
believe the government consciously pitted minorities against one
another when establishing regional autonomous areas in order to weaken
their ability to confront the state. Gardner Bovingdon, ``Heteronomy
and Its Discontents `Minzu Regional Autonomy' in Xinjiang,'' in
Governing China's Multiethnic Frontiers, ed. Morris Rossabi (Seattle:
University of Washington, 2004), 117-154; Becquelin, ``Xinjiang in the
Nineties,'' 86. Since 2000, the central government has explicitly
stated that nationality development work will place a priority on the
22 smallest minority populations. Tang Ren, ``Ethnic Minorities Need
Help: Government Pledges Another Round of Poverty Alleviation Reforms
to Save the Country's 22 Small Ethnic Groups,'' Beijing Review
(Online), 26 July 05. The May 2005 REAL Implementing Regulations
require provincial-level governments to give priority to smaller
minorities in their economic development and investment plans.
\30\ Non-autonomous governments may also pass local legislation on
issues not addressed by national law, but the autonomous areas have the
power to pass local legislation expounding upon, or altering, national
laws to suit minority customs.
\31\ PRC Legislation Law, enacted 15 March 00, art. 66.
\32\ Xinjiang has gone through eight drafts of its self-governing
regulation since 1981. The Xinjiang People's Congress announced in
January 2005 that it would restart the drafting process after the
passage of the REAL Implementing Regulations, noting that ``many issues
[in the self-governing regulation] require reaching a compromise
between national and local interests so the process has been slow.''
``Ten Issues Handled'' [Shi jian yianjian jiande dao chuli], Xinjiang
Capital Daily (Online), 20 January 05.
\33\ Article 19 of the REAL states that the self-governing
regulations of autonomous regions must be submitted to the Standing
Committee of the National People's Congress for approval before they go
into effect. Self-governing regulations of autonomous prefectures and
counties must receive the approval of the Standing Committees of the
People's Congresses at the provincial or directly administered
municipal level before becoming effective and then be reported to the
Standing Committee of the National People's Congress.
\34\ Governments in many autonomous areas have been revising their
self-governing regulations over the last few years. Yunnan Province
announced in October 2004 that all 29 of its autonomous counties and 8
autonomous prefectures would revise their self-governing regulations.
``Yunnan Province Comprehensively Pushes Revisions of Autonomous
Prefectures and Counties Self-Governing Regulations,'' State Ethnic
Affairs Commission Web site, 12 April 05.
\35\ These alterations predominately deal with marriage,
inheritance, elections, and grasslands legislation according to the
State Council Information Office White Paper. ``Regional Autonomy for
Ethnic Minorities,'' State Council Information Office Web Site, 28
February 05; Cheng Jian, ``Autonomous Statutes and Thoughts on Their
Legislation in the Inner Mongolia Autonomous Region'' [Lun danxing
tiaoli: Neimonggu zizhiqu danzing tiaolifa xiancun wenti tanqi],
Journal of Inner Mongolia University Humanities and Social Sciences,
Vol. 34, No. 6, November 2002, 49-52; Chao Li, ``Thoughts on Autonomous
Areas' Autonomous Legislative Powers'' [Dui minzu zizhi difang zizhi
jiguan lifa quan de sikao], Journal of Southwest University for
Nationalities, Vol. 23, No. 7, July 2002, 137-141; Ma Linlin,
``Construction of Our Nation's Minority Economics Law'' [Woguo shaoshu
minzu diqu minzu jingji de fazhi jianshe], Academic Forum, No. 7, 2004,
57-9.
\36\ Chen Wenxing, Legislation Must Appropriately Reflect Changing
Circumstances: On the Promotion of Yunnan's Autonomous Areas'
Legislation'' [Lifa gongzuo bixu shishi huiying qingshi bianqian: lun
yunnan minzu sizhidifang lifa de tuijin''], Academic Exploration, No.
12, December 2004, 60-3; Li Baoqi, ``On the Theory and Practice of the
Financial Transfer Payment System in National Autonomous Areas''
[Caizheng zhuanyi zhifu zhidu zai minzu zizhi difang de lilun yu
shixian], Journal of Yanbian University, Vol. 37, No. 1, March 2004,
51.
\37\ Zeng Xianyi, ``The Legislative Base of the Autonomous
Government Regulations'' [Lun zizhi tiaoli de lifa jichu], Journal of
South-Central University for Nationalities--Humanities and Social
Sciences, Vol. 24, No. 4, July 2004, 7. Chinese scholars regularly call
for autonomous governments to exercise their right to formulate
meaningful self-governing regulations, though these discussions do not
appear in the popular press.
\38\ Zhou Li, et al, ``Autonomous Legislation in the Course of
Modernization'' [Xiandaihua jinchengzhong de zizhi lifa], Yunnan
University Journal- Legal Studies Edition, Vol. 17, No. 2, 2004, 88; Li
Zhanrong, ``On the Application of Minority Economic Law'' [Lun minzu
jingjifa shiyong], Journal of the Guangxi Cadre Institute of Politics
and Law, Vol. 20, No. 1, January 2005, 18; Li Chaokai, ``Brief Analysis
of Yunnan's Legal Personnel Training and Law School Reforms'' [Yunnan
falurencaipeiyang yu faxue jiaoyu gaige qianxi], Seeking Truth, Vol. 6,
2003, 58.
\39\ Li Chaokai, ``Brief Analysis of Yunnan's Legal Personnel
Training and Law School Reforms,'' 57; Chen Wenxing, ``Legislation Must
Appropriately Reflect Changing Circumstances,'' 60-3; Li Zhanrong, ``On
the Application of Minority Economic Law,'' 15-20.
\40\ Li Zhanrong, ``On the Application of Minority Economic Law,''
15-20.
\41\ Article 32 of the Inheritance Law mandates that the property
of a deceased person with no survivors reverts to the state. PRC
Inheritance Law, enacted 10 April 85. The customary practice of many
Islamic groups, however, requires that such property be donated to the
local mosque. No alterations or supplements to the National Inheritance
Law have yet been passed. Li Zhanrong, ``On the Application of Minority
Economic Law,'' 19.
\42\ 6.9 percent of government workers are minorities though
minorities account for almost 9 percent of China's total population.
Ling Yun, ``Analysis of Major Issues and Theories in Our Nation's
Minority Nationality Cadre Education'' [Woguo minzu ganbu jiaoyu cunzai
de zhuyao wenti ji lilun fenxi], Journal of South-Central University
for Nationalities, Vol. 24, No. 2, 2004, 17; Wang Xiubo, ``Research and
Thoughts Regarding The Current Situation Of Minority Nationality Cadres
Corps Talent'' [Guanyu shaoshu minzu diqu ganbu rencai duiwu xianzhuang
de diaocha yu sikao], Progressive Forum, March 2004, 24-5; Yang Guocai,
``Building a Minority Nationality Cadres Corps Is the Crux to
Developing Minority Nationality Areas'' [Shaoshu minzu ganbu duiwu
jianshe shi minzu diqu fazhan de guanjian], Yunnan Nationalities
University Journal, Vol. 21, No. 4, July 2004, 84-6. The proportion of
technically trained minorities placed in high- or mid-level positions
is 19 and 45 percentage points below the Han average according to Na
Canhui, ``In- Depth Analysis of Our Nation's Minority Nationality
Cadres' Training'' [Woguo shaoshu minzu ganbu peiyu jizhi shenxi],
South-Central Nationalities University Journal, Vol. 24, April 2004,
183-4. The absolute number of technically trained minorities has
increased substantially. One Chinese scholar reports that the number
rose from 238,000 in 1979 to over 1.7 million in 2002. Zhang Linchun,
``Policy Decisions and Successful Experience Regarding Minority Cadre
Training and Use'' [Woguo shaoshu minzu ganbu peiyang he xuanbo shiyong
de zhengce guiding he chenggong jingyan], Tianshui Government
Administration Academy, Vol. 2, 2002, 18.
\43\ Zhang Linchun, ``Policy Decisions and Successful Experience
Regarding Minority Cadre Training and Use,'' 15-8. In July 2002, the
State Council approved the joint appointment of State Ethnic Affairs
Commission officials to 20 government ministries and bureaus. Though
these officials are not necessarily ethnic minorities, the majority of
SEAC cadres are. The decision also helps assure that minority issues
will be raised in each of these government offices. ``State Ethnic
Affairs Commissioners Joint Appointment to Other Commissions and Their
Responsibilities'' [Guojia minzu shiwu weiyuanhui bingzhi weiyuan
danwei ji zhize], State Ethnic Affairs Commission Web site, 8 February
05.
\44\ Ling Yun, ``Analysis of Major Issues and Theories in Our
Nation's Minority Nationality Cadre Education,'' 171-3. Government
investment in education in Xinjiang in 2000 was only 45.45 percent of
the national average, according to Gu Huayang, ``Research on the
Current Situation and Policy of Xinjiang's Educational Development''
[Xinjiang jiaoyu fazhan de xianzhuang ji duice yanjiu], Seeking Truth,
No. 2, 2004, 74-7. The same article notes that although a higher
percentage of people in Xinjiang have college degrees than the national
average, the percentage of people receiving high school and middle
school degrees is only 58.43 and 38.15 percent of the national average
respectively.
\45\ Wang Xiubo, ``Research and Thoughts Regarding the Current
Situation of Minority Nationality Cadres Corps Talent,'' 24-5. Wang
Xiubo also notes that many autonomous governments are having difficulty
recruiting government employees under the age of 35. The State Council
Implementation Decision calls for ``vigorous training'' of younger
minority cadres to ensure that a corps of minorities is being trained
to assume mid- and upper-level positions in the years ahead.
\46\ In the 10th People's Congress, for example, 13.91 percent of
the deputies were minorities, well above the 8.9 percent they represent
of the total population. State Council White Paper on Regional
Autonomy, issued 28 February 05. The Election Law also allows ethnic
groups not residing in autonomous areas to hold separate elections for
congressional delegates ``based on the local circumstances,'' though
how these should be carried out remains unclear. Article 9 of the
Election Law says that the State Council may allow autonomous people's
congresses 5 percent more seats than they would normally be allowed on
the basis of their population size. PRC Election Law for the National
People's Congress and Local People's Congresses.
\47\ ``Number of CPC Members Reaches 69.6 Million,'' China Daily,
24 May 05 (FBIS, 24 May 05). Because the party represents the interests
of the entire nation without bias, it would be ``unscientific'' to
require specific minority representation within the party ranks,
according to the official party position. Guo Zhengli, The Theory and
Practice of Regional Ethnic Autonomy with Chinese Characteristics
[Zhongguo tese de minzu quyu sishi lilun yu shijian] (Urumqi: Xinjiang
University Press, 1992), 92.
\48\ Nicholas Becquelin, ``Staged Development in Xinjiang,'' 178
China Quarterly 358, 363 (2004).
\49\ In a widely studied speech in May 2005, Hu Jintao stressed the
need to increase party control over nationality work. He highlighted
the need to ``increase the contingent of nationality work cadres''
while avoiding any mention of increasing the number of ethnic minority
Party members. Hu Jintao, ``Opening Speech to the Ethnic Affairs Work
National Conference.''
\50\ Central Personnel Office Notice on the Correct Handling of
Party Members' Believing in Religion [Guanyu tuoshan jiejue gongchan
dangyuan xinyang zongjiao wenti de tongzhi], issued 20 March 93;
Chinese Communist Party Notice on ``Our Nation's Basic Understanding
and Policies Toward Religion in the Current Stage of Socialism''
[Zhonggong zhongyang yinfa ``guanyu woguo shehuizhuyi shiqi he jiben
zhengce de tongzhi''], issued March 1982. Religion is a central marker
of ethnic identity for many in China, including the Tibetans and the
country's ten Muslim minorities.
\51\ The Chinese government distinguishes between those from ``the
interior, advanced regions'' and those from the ``borderland,
autonomous areas.''
\52\ ``Assist Tibet, Xinjiang, and Border Areas Cadre Policy''
[Yuan zang, yuanjiang zhibian ganbu], State Ethnic Affairs Web site.
\53\ Louisa Lim, ``Uighurs Lost Out in Development,'' BBC (Online),
19 December 03.
\54\ The Xinjiang Propaganda Department praised a local technical
college for placing 60 minority graduates in the coastal city of
Shenzhen. The school plans to send another 180 by year's end. ``60
Xinjiang Minority Technical School Graduates Take Jobs in Shenzhen''
[Xinjiang 60 ming shaoshu minzu zhongzhuansheng Shenzhen jiuye],
Tianshan Net (Online), 14 April 05.
\55\ State Council Regulation on the Implementation of the REAL,
art. 18.
\56\ ``Assist Tibet, Xinjiang, and Border Areas Cadre Policy,''
State Ethnic Affairs Web site.
\57\ Wen Jun, ``Assessment of the Stability of China's Minority
Economic Policy 1949-2002'' [Zhongguo shaoshu minzu jingji zhengce
wendingxing pinggu], Development Research, No. 3, 2004, 40-45.
\58\ Calla Weimer, ``The Economy of Xinjiang,'' in Xinjiang:
China's Muslim Borderland, ed. S. Frederick Starr (Washington, DC:
Central Asia-Caucasus Institute, 2004), 163-189; Nicholas Becquelin,
``Staged Development in Xinjiang,'' 362; David Bachman, ``Making
Xinjiang Safe for the Han? Contradictions and Ironies of Chinese
Governance in China's Northwest,'' in Governing China's Multiethnic
Frontiers, ed. Morris Rossabi (Seattle: University of Washington Press,
2004), 165-168.
\59\ Uighurs also regularly report that they are discriminated
against in the broader job market, with offices publicly posting help
wanted signs stipulating ``Uighurs need not apply.'' ``China's
Influence in Central Asia (Part 5),'' Radio Free Asia. Graham E. Fuller
and Jonathan N. Lipman state that ``members of the Han majority appear
to advance more rapidly than similarly qualified Uighurs, while even in
Kashgar many specialized occupations are reserved for the Xinjiang
Production and Construction Corps and other Han-dominated work units.''
Graham E. Fuller and Jonathan N. Lipman, ``Islam in Xinjiang,'' in
Xinjiang: China's Muslim Borderland, ed. S. Frederick Starr
(Washington, DC: Central Asia-Caucasus Institute, 2004), 325. Economist
Calla Weimer demonstrates statistically that Uighurs have less earning
power than Han living in the same area. Calla Weimer, ``The Economy of
Xinjiang,'' 188.
\60\ REAL, art. 20.
\61\ Ibid., arts. 27 and 65; PRC Constitution, art. 9.
\62\ ``Complaint Against the Chinese Government's Forced Eviction
of Ethnic Mongolian Herders,'' Southern Mongolian Human Rights
Information Center (Online); Hong Jiang, Fences, Ecologies, and Changes
in Pastoral Life: Society and Reclamation in Uxin Ju, Inner Mongolia,
China, paper presented at the Association for Asian Studies Annual
Conference in Chicago, IL, 3 April 05; Enhebatu Togochog, Ecological
Immigration and Human Rights in Inner Mongolia, paper presented at the
Association for Asian Studies Annual Conference, Chicago, IL, 3 April
05.
\63\ Stanley Toops, ``The Ecology of Xinjiang: A Focus on Water,''
in Xinjiang: China's Muslim Borderland, ed. S. Frederick Starr
(Washington, DC: Central Asia-Caucasus Institute, 2004), 271;
Becquelin, ``Xinjiang in the Nineties,'' 84.
\64\ State Council Regulation on Implementation of the REAL, arts.
30 and 32. Article 8 requires the central government to compensate
autonomous governments who have suffered financially after implementing
ecological development projects. Many of the central government's
largest ecological protection programs are in minority regions, which
must share the financial burden of implementing the center's plans. The
``three returns'' plan of 2000 (returning farmland to forest, farmland
to grasslands, and pasturelands to fallow) cost each of the affected
banners in Inner Mongolia an average of 200,000 yuan annually, for
example. Zhuang Wanlu, ``Discussion of Minority Areas' Various Types of
Poverty: The Problem of Local Government Financial Resources Poverty''
[Lun minzu diqu de linglei pinkun--difang zhengfu caizheng pinkun
wenti], Journal of Southwest University for Nationalities, Vol. 24 No.
6, June 2003, 23.
\65\ REAL, art. 36. Minority governments have established a number
of special schools to increase literacy among adult minorities. In
these short courses, local education departments within the autonomous
areas tailor textbooks to student needs. Some courses use local
minority scripts to teach farming techniques and personal hygiene, for
example. The government carefully monitors the depiction of minority
history in all fields of publication, however, including textbooks. All
textbooks must reflect official historiography showing ``family ties
and deep affection among the nationalities'' and ``common struggle
towards prosperity of all the minorities within a multinational unitary
state.'' Teachers are not allowed to include course segments on a
particular minority group's distinct history. Commission Staff
Interview.
\66\ ``Education for Ethnic Minorities,'' China's Education and
Research Network Web site.
\67\ Minorities Statistical Yearbook 2000 [Minzu tongji nianjian
2000], Ethnic Publishing House Web site. The percentage of minorities
in the total student population in secondary technical schools rose for
that same period from 0.4 percent to 6.6 percent, in teaching
institutes from 2.1 percent to 10.7 percent, in middle schools from 2.6
percent to 6.8 percent, and primary schools from 2.2 percent to 9
percent.
\68\ More than 10,000 attended similar classes in preparation for
secondary school. ``Education for Ethnic Minoriites II,'' China's
Education and Research Network Web site.
\69\ Wang Lequan, ``Maintain the Dominant Position of Marxism in
Ideological Work and Adhere to the Four Cardinal Principals,'' Seeking
Truth, 16 January 05, No. 2, (FBIS, 1 February 05).
\70\ Commission Staff Interview.
\71\ Steven Harrell and Ma Erzi (Mgebbu Lunze), ``Folk Theories of
Success Where Han Aren't Always Best,'' in China's National Minority
Education: Culture, Schooling, and Development, ed. Gerard A.
Postiglione (New York: Falmer Press, 1999), 220-1.
\72\ These are terms the government uses to deride those it
believes promote the interests of their own ethnic group over the
interests of the state as a whole or who favor the creation of a
separate state for their minority group.
\73\ Chinese Communist Party Notice on ``Our Nation's Basic
Understanding and Policies Toward Religion in the Current Stage of
Socialism.''
\74\ Central Personnel Office Notice on the Correct Handling of
Party Members' Believing in Religion.
\74\ Hu Jintao stressed the importance of ``conducting nationality
solidarity propaganda and education campaigns on an extensive scale''
in his May address to the National Conference on Ethnic Minority Work,
while Xinjiang's Party secretary announced that the region would
``vigorously step up propaganda to reveal that the fallacies spread by
national separatists are outrageous lies.'' Wang Lequan, ``Maintain the
Dominant Position of Marxism in Ideological
\75\ Work and Adhere to the Four Cardinal Principals.'' On June 29,
2005, the central State Ethnic Affairs Commission met with more than 20
media organizations, including the Party's main theoretical journal and
the national People's Daily, to discuss increasing propaganda work.
``State Ethnic Affairs Commission Holds Meeting with Media
Representatives''[Guojia minwei juban xinwen meiti zuotanhui], State
Ethnic Affairs Commission Web site, 28 June 05.
\76\ ``The Teahorse Road'' [Chama gudao], State Ethnic Affairs
Commission Web site, May 2005.
\77\ One scholar argues that the Party in essence ``created''
certain ethnic groups through careful manipulation of ethnic cultural
markers, widespread Party propaganda about the groups' histories and
cultures, and banning of unofficial critiques of minorities' cultures.
Kaup, Creating the Zhuang.
\78\ Michael Dillon, ``Uyghur Language and Culture Under Threat in
Xinjiang,'' Diplomatic Observer (Online), 14 August 02.
\79\ Members of some minority groups report that they are pleased
to highlight their ethnic heritage in these and other state-sponsored
forums. Numerous Zhuang scholars, peasants, and government workers, for
example, participated with enthusiasm in the construction of a ``Zhuang
Village'' display near the capital of Yunnan in 2001. Commission Staff
Interviews.
\80\ The White Paper notes that over 50 million copies of 4,800
separate book titles have been published in minority languages, and
more than 200 magazines and 88 newspapers.
\81\ The Paper notes, for example, that it was the central
authorities who ``organized'' 3,000 experts and scholars to compile a
five-part series of books on each of China's ethnic minorities. The
White Paper also reports that ``the state has set up institutions to
collect, assort, translate and study in an organized and programmed
manner the three major heroic epics of China's ethnic minorities.''
\82\ REAL, art.10.
\83\ Minglang Zhou, Multilingualism in China: The Politics of
Writing Reforms for Minority Languages 1949-2002 (New York: Mouton de
Gruyter, 2003). Not all of the minorities had unified written scripts
when the Communist Party came to power in 1949. Practical challenges,
such as determining which dialect should form the foundation for new
phonetic scripts, limited many minorities' ability to utilize their own
scripts rather than any concerted efforts by the central government to
limit their use.
\84\ Select universities in the TAR, Inner Mongolia, and the
Yanbian Korean Autonomous Prefecture offer coursework in minority
languages, though generally minority language use is limited to primary
and middle schools. In many areas, minority languages are used only in
the lower levels of primary school until students master Chinese and
are able to take all of their classes in Mandarin.
\85\ The REAL Implementing Regulations instruct autonomous areas to
promote ``bilingual teaching.'' Whereas Article 37 of the REAL
previously only stipulated that ``Han language and literature courses''
should be offered in the senior grades of primary school or secondary
school, the new Regulations encourage the use of Mandarin with minority
languages in all courses. Uighur activist Rebiya Kadeer reports that
the Uighur language has been banned in schools throughout Xinjiang.
Commission Staff Interview, 22 August 05.
\86\ Mette Halskov Hansen, ``The Challenge of Sipsong Panna in the
Southwest,'' in Governing China's Multiethnic Frontiers, ed. Morris
Rossabi (Seattle: University of Washington Press, 2004), 69.
\87\ Regulation on Spoken and Written Language Work in the Inner
Mongolian Autonomous Region [Neimenggu zizhiqu menggu yuyan wenzi
gongzuo tiaoli], enacted 26 November 04.
\88\ Ibid. Article 18, for example, increases the number of
translators in each government office and assures that they receive the
same rank and compensation as others in their office. Article 14 states
that offices and businesses should give priority in hiring to students
who received their education in Mongol technical schools.
\89\ Mette Halskov Hansen, ``The Challenge of Sipsong Panna in the
Southwest,'' 62.
\90\ A survey conducted in Xinjiang in 2003 revealed that over 67
percent of those interviewed felt strong Mandarin language skills were
the most important qualification for hiring minorities. Wang Jianjun,
``Develop Social Surveys, Train Qualified Talent'' [Kaizhan shehui
diaocha peiyang shiyingxing hege rencai], Advanced Scientific
Education, No. 6, 2003, 64-7. ``China's Influence in Central Asia (Part
5): Uighurs Count the Cost of China's Quest for Stability,'' Radio Free
Asia.
\91\ Tibetans Lose Ground in Public Sector Employment in the TAR,
Tibet Information Network. For detailed analysis, see Section VI--
Tibet.
\92\ Moreover, these new cadres would not be allowed to serve in
their own hometowns, despite a 1993 central government decision
specifically exempting minorities from a national ban on local
officials being placed in their home locales. ``Xinjiang Will Hold Open
Civil Service Exams for 700 Civil Servants to Enrich Southern
Xinjiang'' [ Xinjiang jiang mianxiang shehui zhaokao 700 ming
gongwuyuan chongshi nanjiang ganbu duiwu], Xinjiang Daily, reprinted on
Tianshan Net (Online), 7 April 05; Temporary Regulations on Public
Officials [Guojia gongwuyuan zhanxing tiaoli], issued 19 August 93;
Wang Lequan, ``Those Who Master Minority Language Will Be Exempted From
Civil Service Examination,'' [Wang Lequan: zhangwo minyu baokao
gongwuyuan ke mianshi], Urumqi Evening News, reprinted on Tianshan Net
(Online), 25 July 05.
\93\ ``To Establish Scientific Development Views: Xinjiang Urgently
Needs to Address the Challenge of Its Talent Loss'' [Luoshi kexue
fazhanguan Xinjiang jidei huajie rencai liushi kunju], Workers' Daily,
reprinted on Tianshan Net, 1 May 05. The government has created some
special programs to encourage minorities with doctoral degrees to
conduct their research in autonomous areas. The government has set
aside a million yuan each year since 2000, for example, to fund
research projects by minority scholars. The applicant pool for these
funds is a group of 516 minority scholars sent for one to two years of
advanced scientific training outside of Xinjiang between 1992 and 2001.
``The Clear Success Over the Last Five Years of The Scientific Research
Program for Those in Xinjiang's Special Training Plan for Minority
Technical Talent'' [Xinjiang shaoshu minzu keji rencai teshu peiyang
jihua keyan xiangmu shishi 5 nianlai chengxiao xianzhu], Hami
Information Outlet Web site, 12 June 05.
\94\ Official press coverage stressed that the flow of new workers
would lead to ``mutual prosperity'' for both Xinjiang and Gansu.
``Jointly Prosper: 4,000 Gansu Households Begin Work in Xinjiang's
Construction and Production Corps,'' Gansu Daily, 21 April 05,
reprinted on Tianshan Net, 22 April 05.
\95\ Xinjiang is home to 8.2 million Uighurs, who are largely Sunni
Muslims of Turkic descent. Several other minorities live in the region,
including Tajiks, Kazahks, Uzbeks, Kyrgz, and Mongols. Xinjiang
supplies over 35 percent of China's oil and gas, and borders eight
countries.
\96\ Human Rights Watch, Devastating Blows: Religious Repression of
Uighurs in Xinjiang, April 2005; Bovingdon, Autonomy in Xinjiang: Han
Nationalist Imperatives and Uighur Discontent.
\97\ He Ruixia, ``Political Thought Work In the Course of
Strengthening and Improving the Struggle Against Nationality
Splittism'' [Jiaqiang he gaijin fandui minzu fenliezhuyi douzhengzhong
de sixiang zhengshi gongzuo], Seeking Truth, No. 2, 2004, 22-4.
\98\ Commission Staff Interview. ``Press Conference on the 50th
Anniversary of the Founding of the Xinjiang Uighur Autonomous Region''
[Zizhiqu chengli 50 zhounian xinwen fabuhui zhaokai], Tianshan Net
(Online), 25 August 05.
\99\ ``In the Midst of Glory and Hope: Key Points in Propaganda for
Xinjiang 50th Anniversary'' [Xinjiang zai huihuan yu xiwang zhong
fengyongqianjin: qingzhu Xinjiang weiwuer zizhiqu chengli 50 nianzhou
xuanchuan jiaoyu yaodian], Xinjiang Daily, reprinted on Tianshan Net
(Online), 19 May 05; ``AFP: Xinjiang Ribao Carries `Editorial' Against
Separatism as Uzbek President To Visit,'' Agence France-Presse, 25 May
05 (FBIS, 25 May 05).
\100\ ``Xinjiang Has Become the Main Battlefield For China's
Antiterrorism Struggle,'' China Youth Daily, 6 September 05 (FBIS, 7
September 05).
\101\ Human Rights Watch, Devastating Blows: Religious Repression
of Uighurs in Xinjiang; Arienne M. Dwyer, The Xinjiang Conflict: Uighur
Identity, Language Policy, and Political Discourse (Washington: East-
West Center Washington, 2005); Bovingdon, Autonomy in Xinjiang: Han
Nationalist Imperatives and Uighur Discontent.
\102\ ``Police Patrolmen in China's Xinjiang Capital Get Sub-
Machine-Guns,'' Urumqi News, 1 March 05 (FBIS, 1 March 05).
\103\ Gardner Bovingdon, ``The Not-so-Silent Majority: Uighur
Resistance to Han Rule in Xinjiang,'' 28 Modern China 39, 39-78 (2002).
For similar findings, see Jay Todd Dautcher, ``Reading Out-of-Print:
Popular Culture and Protest on China's Western Frontier,'' in China
Beyond the Headlines, eds. T.B. Weston and L.M. Jensen (Lanham: Rowman
and Littlefield, 2000), 273-295; Justin Rudelson, Oasis Identities:
Uighur Nationalism Along China's Silk Road (New York: Columbia
University Press, 1997); Joanne Smith, ``Four Generations of Uighurs:
The Shift towards Ethno-Political Ideologies Among Xinjiang's Youth,''
Vol. 2, No. 2 Inner Asia 195, 195-224 (2000).
\104\ Michael Dillon, ``Uighur Language and Culture Under Threat in
Xinjiang.''
\105\ China's Regional Ethnic Autonomy Law: Does It Protect
Minority Rights?, Staff Roundtable of the Congressional-Executive
Commission on China, 11 April 05, Testimony of Gardner Bovingdon,
Assistant Professor, Department of Central Eurasian Studies, Indiana
University, Bloomington, Indiana.
\106\ Wang Lequan, ``Maintain the Dominant Position of Marxism in
Ideological Work and Adhere to the Four Cardinal Principals.''
\107\ He Ruixia, ``Political Thought Work In the Course of
Strengthening and Improving the Struggle Against Nationality
Splittism,'' 23.
\108\ Linguist Arienne Dwyer dates the beginning of a policy of
forced linguistic assimilation to the mid-1980s. Dwyer, The Xinjiang
Conflict: Uighur Identity, Language Policy, and Political Discourse.
\109\ ``China Imposes Chinese Language on Uyghur Schools,'' Radio
Free Asia (Online), 16 March 04. Xinjiang residents previously had the
choice of attending minority schools, in which classes were conducted
in minority languages, or Chinese schools, where Mandarin was used.
Graduates with Mandarin Chinese language skills are more competitive in
the job market, and some Uighurs may welcome the opportunity to study
the language. The government is demanding a rapid transition to
bilingual schools, however, and is placing higher emphasis on Mandarin
language use than on local minority language use. Uighurs in exile
report that the government has banned Uighur language use in schools
and that Uighurs fear ``cultural annihilation'' through the weakening
of their language. Commission Staff Interview with Rebiya Kadeer, 22
August 05.
\110\ Teacher-student ratios in Xinjiang's colleges are 1:333
compared to the national average of 1:144, according to an article in
the party's main theoretical journal. While more than 800 new teachers
are needed to bring Xinjiang's teacher-student ratio in line with the
national average, Xinjiang actually lost more than 530 higher education
teachers between 2001-2004. Gu Huayang, ``Research on the Current
Situation and Policy of Xinjiang's Educational Development'' [Xinjiang
jiaoyu fazhan de xianzhuag ji duice yanjiu], Seeking Truth, No.2, 2004,
74-7.
\111\ Dwyer, The Xinjiang Conflict: Uighur Identity, Language
Policy, and Political Discourse, 40.
\112\ ``Wang Lequan Stresses: Firmly Implement the Principle of
Politicians Managing Education'' [Wang Lequan qiangdiao: jianding lushi
zhengzhijia ban jiaoyu yuanze], Xinjiang Economic News, reprinted on
Xinhua (Online), 26 April 05.
\113\ ``Xinjiang Will Hold Open Civil Service Exams for 700 Civil
Servants to Enrich Southern Xinjiang,'' Xinjiang Daily.
\114\ ``Wang Lequan Stresses: Firmly Implement the Principle of
Politicians Managing Education,'' Xinjiang Economic News.
\115\ ``How to Handle the Issue of Religion Interfering in
Education in Minority Areas with a Majority of Religious Believers''
[Zai yixie duoshuren xinjiao de minzu diqu, rehe chuli zongjiao ganyu
xuexiao jiaoyu wenti], State Minorities Bookstore Web site.
\116\ Wang Lequan, ``Maintain the Dominant Position of Marxism in
Ideological Work and Adhere to the Four Cardinal Principals.''
\117\ Zhang Jian, ``Speech at the All-County 20th Teachers' Day
Award Ceremony'' [Zai quanxian qingzhu di ershi ge jiaoshijie ji
biaozhang dahuishang de jianghua], Buerjin County (Xinjiang) Communist
Party Office Web site, 10 September 04.
\118\ He Ruixia, ``Political Thought Work In the Course of
Strengthening and Improving the Struggle Against Nationality
Splittism,'' 22-4.
\119\ ``Wang Lequan Stresses: Firmly Implement the Principle of
Politicians Managing Education,'' Xinjiang Economic News.
\120\ He Ruixia, ``Political Thought Work In the Course of
Strengthening and Improving the Struggle Against Nationality
Splittism,'' 22-4.
\121\ Ibid.
\122\ Human Rights Watch, Devastating Blows: Religious Repression
of Uighurs in Xinjiang, Appendix III.
\123\ The story tells of a wild pigeon who commits suicide rather
than submit to being caged by humans who feed him well, but deny him
his freedom. ``RFA Publishes First English Translation of Noted Uighur
Story,'' Radio Free Asia (Online), 29 June 05.
\124\ Tohti Tunyaz's doctoral advisor in Japan denies any such
publications exist. Tunyaz was arrested for obtaining state secrets,
which according to the sentencing record were publicly available
library materials he obtained from a state- employed librarian at
Xinjiang University. ``Honorary Members: Tohti Tunyaz,'' Pen American
Center Web site.
\125\ The charges included ``inciting to split China, organizing
meetings, taking oaths, accepting membership and possessing illegal
publications and counterrevolutionary videos for propaganda purposes.''
``Bingtuan Supreme Court Affirms Jail Terms for Uighur Youths,'' Radio
Free Asia (Online), 23 December 03.
\126\ The names of the other defendants have not been disclosed.
Human Rights Watch, Devastating Blows: Religious Repression of Uighurs
in Xinjiang, 49.
\127\ Ibid., 6.
\128\ ``Police Raid Forces Uyghur Dissident's Son Into Hiding,''
Radio Free Asia (Online), 16 May 05.
Notes to Section III(b)--Rights of Criminal Suspects and Defendants
\1\ ``Xiao Yang: People's Courts Must Maintain the Strike-Hard
Principle Over the Long Term,'' [Xiao Yang: Renmin fayuan bixu changqi
jianchi yanda fangzhen], Xinhua (Online), 16 December 04; ``Senior
Party Official: China to Regularize Crackdown Campaign Against
Crimes,'' Xinhua, 6 March 05 (FBIS, 6 March 05).
\2\ Wang Lin, ``The Right Time for Replacing `Yanda' with `Prevent
and Control,' `Policing Revolution' Requires Lasting Effort''
[`Fangkong' tidai `yanda' zhengdangshi, `jingwu geming' xu chijiu
nuli], Southern Weekend (Online), 23 June 05; ``Public Order Can't Rely
Merely on Campaigns'' [Zhi an bu neng guangkao gao yundong], Southern
Metropolitan Daily (Online), 1 February 05; Du Yonghao, ``Strike Hard
Should Embody the Spirit of Rule of Law'' [Yanda geng ying tixian fazhi
jingshen], People's Daily (Online), 25 August 03.
\3\ ``Crime Crackdown Must Observe Justice Principles,'' China
Daily (Online), 18 December 04.
\4\ See, e.g., ``Liaoning Strikes Hard at Six Kinds of Corruption
in the Political-Legal Team'' [Liaoning yanda zhengfa duiwu liu da
fubai], Legal Daily (Online), 12 May 05; ``50,000 Cases Broken in
Guangdong's Hundred Days of Strike Hard'' [Guangdong bairi yanda po
wuwan xingan], Southern Metropolitan Daily (Online), 10 November 04;
``Ministry of Public Security Requires Strike Hard Against Three Types
of Criminal Activity--Criminal Organizations, Etc.'' [Gonganbu yaoqiu
yanda hei e shili deng san lei fanzui huodong], Ministry of Public
Security (Online), 5 November 04; ``China to Launch `People's War' on
Drugs,'' People's Daily (Online), 5 April 05.
\5\ ``Ministry of Public Security Publicizes the Situation of the
Nation's Public Security Organs Striking at Crime and Preserving Social
Order in 2004'' [Gonganbu tongbao 2004 nian quanguo gongan jiguan daji
xingshi fanzui weihu shehui zhian qingkuang], Ministry of Public
Security Web site, 5 February 05; Supreme People's Procuratorate Work
Report [Zuigao renmin jianchayuan gongzuo baogao], 9 March 05.
\6\ Supreme People's Court Work Report [Zuigao renmin fayuan
gongzuo baogao], 8 March 05.
\7\ ``Juvenile Crime Up 19.1 Percent Nationally in 2004, China
Prepares to Establish Juvenile Courts'' [2004 nian quanguo wei
chengnian ren fanzui shangsheng 19.1 percent, wo guo yunniang jianli
shaonian fayuan], Southern Metropolitan Daily (Online), 14 March 05. A
separate article indicates that juvenile crime as a percentage of total
crime increased each year between 2000 and 2003: 2000 (11.8 percent of
all crimes), 2001 (12 percent), 2002 (13.9 percent), and 2003 (18.9
percent). Zhou Kai, ``Prevent Juvenile Crime Without Delay'' [Yufang
weichengnianren fanzui liburonghuan], China Youth (Online), 11 March
05.
\8\ For selected positive statistics, see ``Ministry of Public
Security Publicizes the Situation of the Nation's Public Security
Organs Striking at Crime and Preserving Social Order in 2004'' [Gongan
bu tongbao 2004 nian quanguo gongan jiguan daji xingshi fanzui weihu
shehui zhian qingkuang], Ministry of Public Security Web site;
``Ministry of Public Security Publicizes National Public Order
Situation'' [Gonganbu tongbao quanguo zhian qingkuang], Xinhua
(Online), 27 April 05. For sources suggesting a growing crime problem,
see, e.g., SPP Work Report, 9 March 05; Yuan Zhengbing, Cui Zuojun, Liu
Jinlin, ``To Prevent Unjust Cases, Firmly Grasp the Relationship With
Arresting Personnel--This Paper's Reporter Conducts a Special Interview
with Supreme People's Procuratorate Vice President Zhu Xiaoqing''
[Fangzhi yuan cuoan yao ba buren guan--benbao jizhe zhuanfang zuigao
renmin jianchayuan fu jianchazhang Zhu Xiaoqing], Procuratorate Daily
(Online), 16 May 05; ``Ministry of Public Security Publicizes the
Situation of the Nation's Public Security Organs Striking at Crime and
Preserving Social Order in 2004,'' Ministry of Public Security Web
site; ``National Statistics Bureau: Crime in China Clearly Has the
Largest Effect on Public Sense of Security'' [Guojia tongjiju: wo guo
xingshi fanzui yiran zui yingxiang qunzhong anquangan], China Youth,
reprinted in Xinhua (Online), 7 February 05.
\9\ For two of the many detailed Chinese accounts of the Nie and
She cases, see `` `Nie Shubin Murder Case' Still Unresolved'' [`Nie
Shubin yuan sha an' xuaner weijue], Southern Weekend (Online), 24 March
05; and Gu Yunyong, ``The Unjust Case of She Xianglin Murdering His
Wife: the Price of Efforts to Seek Redress and Innocence on a Common
Chinese Peasant Household'' [She Xianglin sha qi yuanan: yige putong
zhongguo nongmin jiating de shenyuan zhilu yu qingbai daijia], Southern
Metropolitan Daily (Online), 5 April 05. In April 2005, a Hubei court
formally exonerated Mr. She.
\10\ For two of the numerous examples of such stories, see ``14
Years of an Unjust Case of Wife Murder, `Liaoning's She Xianglin' Li
Huawei Obtains State Compensation'' [14 nian sha qi yuanan `Liaoning
She Xianglin' Li Huawei huo guojia peichang], People's Daily (Online),
15 April 05; Lei Dao, ``Why No Compensation After Eight Years of Unjust
Imprisonment'' [Ba nian yuanyu weihe bu peichang], Legal Daily
(Online), 17 April 05.
\11\ Li Na, ``Unjust Case of Wife Murder Causes China's Judicial
Realm to Rethink Protection of Human Rights'' [``Sha qi'' yuanan yinfa
zhongguo sifa lingyu renquan baohu fansi], Xinhua, reprinted in
People's Daily (Online), 6 April 05. For an English-language version of
the article, see ``Return of `Murdered Wife' Calls China's Justice
System Into Question,'' People's Daily (Online), 5 April 05.
\12\ See, e.g., ``The `Nie,' `She' Cases in Lawyers' Eyes:
Rethinking Necessary Before Judicial System Can Be Improved'' [Lushi
yanzhong de ``Nie,'' ``She'' liangan: fansi cai neng dailai sifa tizhi
de gaishan], Criminal Defense Net (Online), 13 April 05; ``Legal
Redemption for Erroneous Death Sentences'' [Sixing wupan de falu
jiushu], Modern Bulletin (Online), 16 March 05; Tang Weibin, Li
Changzheng, ``How Do Unjust Cases Come About? Following the Trail of
Hubei's She Xianglin `Wife Murder' Case'' [Yuanan shi zenme zaocheng
de? Hubei She Xianglin ``sha qi'' an zhuizong], Procuratorate Daily
(Online), 8 April 05; ``Analyzing the Xu Jingxiang Unjust Case'' [Xu
Jingxiang yuanan pouxi], China Youth Online, 10 May 05; ``Don't Allow
the Wings of Justice to Break: Using Unjust Cases to Look at
Confessions Extorted Through Torture, [Bie rang zhengyi zheduan le
chibang: cong mianan kan xingxun bigong], Legal Daily (Online), 22
April 05; ``Return of `Murdered Wife' Calls China's Judicial System in
Question,'' People's Daily (Online); ``Behave Prosecutors to Protect
Innocent,'' China Daily, 28 May 05 (FBIS, 28 May 05); Lin Wei, ``Can
Audio and Videotaping Really Keep Torture Under Control? '' [Luyin
luxiang zhen neng guanzhu xingxun bigong?], Legal Daily (Online), 7
June 05; Ge Lin, ``Why a Not Guilty Verdict Is a Rarity of Rarities''
[Wuzui panjue weihe fengmaolinjiao], Southern Weekend (Online), 16 June
05; Jiang Hong, ``Commentary: Use Vigorous Legal Supervision to Prevent
Unjust Cases'' [Shelun: yong qiang you li de falu jiandu fangzhi
cuoan], Justice Net (Online), 26 April 05; Yuan Zhengbing, Cui Zuojun,
Liu Jinlin, ``To Prevent Unjust Cases, Firmly Grasp the Relation with
Arresting Personnel,'' Procuratorate Daily (Online). For an useful
collection of translations and English-language briefings on some of
the topics addressed in these articles, see Human Rights in China,
China Rights Forum: Law and Justice, No. 2, 2005.
\13\ ``Legal Redemption for Erroneous Death Sentences,'' Modern
Bulletin.
\14\ ``Return of `Murdered Wife' Calls China's Justice System Into
Question,'' People's Daily (Online).
\15\ Shi Ting, ``Police Reforms Put More Officers on the Beat,''
South China Morning Post, 26 March 05 (FBIS, 26 March 05).
\16\ Ibid. See also ``Beijing to Hire 6,500 More Policemen To Save
On-the-Job From Overwork,'' Xinhua, 5 June 05 (FBIS, 5 June 05); Zuo
Guobin, ``Ministry of Public Security to Raise an Army for Police
Substations, 70,000 Police to Be Added at Basic Levels'' [Gonganbu wei
paichusuo zhaobingmaima, jiang chongshi qiwan jingli dao jiceng], CRI
Online, 22 June 05.
\17\ Dwight Daniels, ``Beijing Demands Better Policing,'' China
Daily (Online), 9 May 05.
\18\ For crackdowns on abuses, see, e.g., SPP Work Report, 9 March
05; ``Supreme People's Procuratorate Confirms Emphasis of Investigative
Supervision This Year'' [Zuigaojian queding jinnian zhencha jiandu
zhongdian], Legal Daily (Online), 17 May 05; Cao Desheng, ``Rights
Infringements in Focus,'' China Daily, 27 July 05. For statements on
balancing crime-fighting and human rights protection, see, e.g., Tian
Yu, ``Xiao Yang: Ensure in Practice That The Innocent Are Not
Criminally Prosecuted'' [Xiao Yang: qieshi baozhang wuzui de ren bushou
xingshi zhuijiu], Xinhua (Online), 16 December 04; Yuan Zhengbing, et.
al., ``To Prevent Unjust Cases, Firmly Grasp the Relationship with
Arresting Personnel.''
\19\ UN Working Group on Arbitrary Detention, Report of the Working
Group on Arbitrary Detention, Mission to China, Advance Edited Version,
29 December 04 [hereinafter UNWGAD Report], para. 68(a). UNWGAD
officials interviewed more than 70 detainees according to UNWGAD's
terms of reference.
\20\ The Commission's Political Prisoner Database includes profiles
on more than 500 current and 3,000 past political prisoners. Thousands
of political prisoners are detained in China's re-education through
labor system. See infra, ``Administrative Punishment,'' and
accompanying notes.
\21\ ``China Rebuffs Call for Tiananmen Account,'' Associated
Press, 6 June 05.
\22\ Over the past year, Chinese authorities detained, questioned,
and then released numerous ``public intellectuals'' who had been
critical of the government or working on sensitive issues, including
Liu Xiaobo, Yu Jie, Zhang Zuhua, Jiao Guobiao, Wang Guangze, Li
Boguang, Chen Min, Yang Tianshui, Li Guozhu, Guo Guoting, and others.
For more details, see Section III(d)--Freedom of Expression. For a
detailed discussion of the challenges faced by China's public
intellectuals, see Public Intellectuals in China, Staff Roundtable of
the Congressional-Executive Commission on China, Testimony and Written
Statements submitted by Perry Link, Professor of Chinese Language and
Literature, Princeton University; Merle Goldman, Professor Emerita of
Chinese History, Boston University and Executive Committee Member,
Fairbank Center for East Asia Research, Harvard University; and Hu
Ping, Chief Editor, Beijing Spring.
\23\ ``Petitioner Round-up as NPC Meets,'' Human Rights in China
(Online), 11 March 03; ``China Detains Dissidents Who Mourned Deposed
Leader Zhao: Rights Group,'' Agence France-Presse, 30 January 05 (FBIS,
30 January 05); ``Activists Under Tight Security Ahead of Tiananmen,''
Radio Free Asia (Online), 3 June 05; Chan Siu-sin, ``Rights Activists
Call Confinement `Ridiculous,' '' South China Morning Post, 8 September
05 (FBIS, 8 September 05).
\24\ Law in Political Transitions: Lessons From East Asia and the
Road Ahead for China, Hearing of the Congressional-Executive Commission
on China, 26 July 05, Written Statement submitted by Jerome A. Cohen,
Professor of Law, New York University. Individuals charged with or
convicted of such crimes since October 2004 include Jamal Abdulla,
Nurmemet Yasin, Sonom Phuntsog, Jamphel Gyatso, Jigme Dazang, Lobsang
Dargyal, Tashi Gyaltsen, Tsesum Samten, Tsultrim Phelgyal, Zhang Lin,
Xu Wanping, and Zheng Yichun.
\25\ Human Rights in China Press Release, ``Shanghai Resident Under
Administrative Detention For Petitioning Over Destruction of His
Home,'' 2 February 03; ``Visitors to Memorial Ceremony Re-educated
Through Labor and Arrested One by One'' [Jidian de fangmin fenfen bei
laojiao he jubu], Boxun (Online), 3 February 05; Forced Labor in China,
Roundtable of the Congressional-Executive Commission on China, 22 June
05, Written Statement of Harry Wu, Executive Director, Laogai Research
Foundation.
\26\ UNWGAD Report, para. 73.
\27\ ``Foreign Ministry Spokesperson Zhang Qiyue's Press
Conference,'' Ministry of Foreign Affairs (Online), 7 December 04.
\28\ Chris Buckley, ``U.S. Cautious as China Offers Details on
Political Prisoners,'' New York Times (Online), 9 February 05.
\29\ A Global Review of Human Rights: Examining the State
Department's 2004 Annual Report, Hearing of the Subcommittee on Africa,
Global Human Rights, and International Operations, House Committee on
International Relations, 17 March 05, Oral Statement of Michael Kozak,
Assistant Secretary of State for Democracy, Human Rights, and Labor, US
Department of State.
\30\ The UNWGAD defines a detention as arbitrary (1) when there is
clearly no legal basis for the deprivation of liberty (for example when
individuals are kept in detention after the completion of their prison
sentences or despite an amnesty law applicable to them, or in violation
of domestic law or relevant international instruments); (2) when
individuals are deprived of their liberty because they have exercised
the rights and freedoms guaranteed in certain provisions of the United
Nations Declaration on Human Rights (UNDHR) or the International
Covenant on Civil and Political Rights; and (3) when noncompliance with
the standards for a fair trial set out in the UNDHR and other relevant
international instruments is sufficiently grave as to make a detention
arbitrary. United Nations Commissioner for Human Rights, Fact Sheet
#26, the Working Group on Arbitrary Detention.
\31\ Xue Yongxiu, ``Extended Detention Cases in Courts at Each
Level Have Been Completely Cleared'' [Geji fayuan chaoqi jiya anjian
quanbu qingli wanbi], China Court Net (Online), 9 March 05; State
Council Information Office, ``China's Progress in Human Rights in
2004,'' April 2005 (FBIS, 13 April 05).
\32\ Andrea Worden, ``Legal Theatre in China: The Detention and
Trial of Pro-Democracy Activist Yang Jianli,'' draft manuscript on file
with the Commission.
\33\ Benjamin Kang Lim, ``New York Times Chinese Researcher Accused
of Fraud,'' Reuters (Online), 1 June 05.
\34\ PRC Criminal Procedure Law, enacted 1 Jan 97, art. 128. Under
a variety of legal exceptions and detention extension provisions such
as Articles 69, 124, 126, 127, and 140 of the PRC Criminal Procedure
Law, a suspect's pre-trial detention could be extended for more than
seven months even without evidence of new crimes. Worden, ``Legal
Theatre in China.''
\35\ Worden, ``Legal Theatre in China'' (citing Chinese criminal
law experts). Even SPC officials acknowledge that police and judicial
officials hold suspects for periods much longer than allowed by law.
Liu Yu, ``Reforms for More Rights--Protecting the Rights of the Accused
and Building a More Just Legal System Are the Goals of Change,''
Beijing Review (Online), 25 November 04.
\36\ International Covenant on Civil and Political Rights, arts.
9(3) and 9(4). China has signed, but has not yet ratified, the ICCPR.
However, treaty signatories have an obligation to refrain from acts
that would defeat the purpose of a treaty while ratification is
pending. Vienna Convention on the Law of Treaties, art. 18.
\37\ UNWGAD Report, para. 32.
\38\ ``Ministry of Public Security Publicizes the Situation of the
Nation's Public Security Organs Striking at Crime and Preserving Social
Order in 2004,'' Ministry of Public Security (Online).
\39\ See, e.g., the broad-ranging and vaguely worded lists of
offenses in the State Council Notice on Re-Issuing the Ministry of
Public Security's Trial Methods for Implementation of Re-education
Through Labor [Guowuyuan guanyu zhuanfa gonganbu zhiding de laodong
jiaoyang shixing banfa de tongzhi], issued 21 January 82, art. 9;
Regulations on the Handling of Re-education Through Labor Cases By
Public Security [Gongan jiguan banli laojiao anjian guiding], issued 1
June 02, art. 9; PRC Public Order Administration Punishment Law,
adopted 28 August 05. According to Chinese officials, 80 percent of
RETL detainees are drug addicts. Chiang Hsun, ``NPC To Replace `Re-
education Through Labor System,' Which Has Come Under Mounting
Criticisms, with `Illegal Conduct Correction System' In Order to
Protect Human Rights,'' Asia Weekly, 8 May 05 (FBIS, 4 May 05).
\40\ Wu Yihuo, Hong Jun, ``Too Few Administrative Law Enforcement
Cases Transferred to Judicial Organs--Relevant Anhui Research Reveals
Information: Three Major Factors Influence Effective Links Between
Administrative Law Enforcement and Criminal Law Enforcement''
[Xingzheng zhifa anjian yisong sifa jiguan taishao, anhui youguan
yanjiuban touchu xinxi: san da yinsu yingxiang xingzheng zhifa yu
xingshi zhifa youxiao xianjie], Procuratorate Daily (Online), 31
January 05.
\41\ Various analysts estimate that between 2 percent and 10
percent of RETL subjects are political detainees. Randall Peerenboom,
``Out of the Frying Pan and Into the Fire,'' 98 Northwestern University
Law Review 991, 1000-01 and accompanying notes (2004); Jim Yardley,
``Issue in China: Many in Jails Without Trial,'' New York Times
(Online), 9 May 05.
\42\ State Council Notice on Re-Issuing the Ministry of Public
Security's Trial Methods for Implementation of Re-education Through
Labor, art. 9; Regulations on the Handling of Re-education Through
Labor Cases By Public Security, art. 9; PRC Public Order Administration
Punishment Regulations [Zhonghua renmin gongheguo zhian guanli chufa
tiaoli], issued 5 September 86, amended 12 May 94.
\43\ UNWGAD Report, 29 December 04, paras. 40, 41. Note that in
August 2005, the NPC Standing Committee passed a ``Public Order
Administration Punishment Law'' to replace the ``Public Order
Administration Punishment Regulations'' mentioned in the UNWGAD Report.
The new law is effective as of March 1, 2006, at which time the old
regulations will be canceled. Public Order Administration Punishment
Law, adopted 28 August 05.
\44\ Most sources place the number of RETL camps at around 300 and
the number of detainees between 250,000 and 300,000. See, e.g.,
Peerenboom, ``Out of the Frying Pan and Into the Fire,'' 1000-01 and
accompanying notes (2004); Yardley, ``Issue in China: Many in Jails
Without Trial''; Can Siu-sin, ``Critics Take Shine of Bootcamp
Reforms,'' South China Morning Post, 21 March 05. However, a May 2005
article in Asia Weekly cites Beijing researchers as confirming that
there are at least 1 million people in RETL camps. Chiang Hsun, ``NPC
To Replace Re-education Through Labor System.''
\45\ Regulations on the Handling of Re-education Through Labor
Cases By Public Security, art. 3; Chan Siu-sin, ``Critics Take Shine of
Bootcamp Reforms.'' In its December 2004 report, the UNWGAD found,
``The operation of the laws governing decisionmaking on placement in a
re-education through labour camp is, however, highly problematic. From
reliable sources, including interviews with persons affected, it is
clear that in the overwhelming majority of cases, a decision on
placement in a re-education center is not taken within a formal
procedure provided by law. The commission vested with power to take
this decision in practice never or seldom meets, the person affected
does not appear before it and is not heard, no public and adversarial
procedure is conducted, no formal and reasoned decision on placement is
taken (or issued for the person affected). Thus, the decisionmaking
process completely lacks transparency. In addition, recourse against
decisions are [sic] often considered after the term in a center has
been served.'' UNWGAD Report, para. 58.
\46\ Ibid., para. 56.
\47\ Ibid., para. 75.
\48\ Ibid., para. 51. Under Chinese law, penalties involving
restrictions on personal freedom may only be established by law. PRC
Legislation Law, adopted 15 March 00, art. 8.
\49\ Wu Kun, ``A Powerful Weapon for Public Order Administration''
[Shehui zhian guanli de you li falu wuqi], Legal Daily (Online), 1
September 05.
\50\ PRC Public Order Administration Law, arts. 5, 16. 79. See
also, ``Passage of the Public Order Administration Punishment Law,
Focuses on Citizen Rights'' [Zhian guanli chufafa tongguo, guanzhu
gongmin quanli], Legal Daily, 29 August 05, available on People's Daily
(Online), 29 August 05.
\51\ At the 2004 NPC session, more than 420 deputies reportedly
signed a motion on reform of the RETL system. Chiang Hsun, ``NPC To
Replace Re-education Through Labor System.''
\52\ Wang Yu, ``China's Re-education Through Labor Management Will
Enlarge Reform Efforts in Four Areas'' [Wo guo laojiao guanli jiang zai
si fangmian jiada gaige lidu], Legal Daily (Online), 1 December 04;
Zhang Qingshui, ``National Re-education Through Labor Work Conference
Closes'' [Quanguo laojiao gongzuo zuotanhui bimu], China Legal
Publicity (Online), 2 December 04.
\53\ Chan Siu-sin, ``Critics Take Shine of Bootcamp Reforms''; Liao
Weihua, ``Re-education Through Labor System Faces Reforms, Law on
Correcting Unlawful Acts To Be Formulated'' [Laojiaozhi mianlin gaige
jiang zhiding weifa xingwei jiaozhifa], Beijing News, reprinted in
Defense Lawyer Net, 2 March 05.
\54\ Liao Weihua, ``Re-education Through Labor System Faces
Reforms.''
\55\ Chan Siu-sin, ``Critics Take Shine of Bootcamp Reforms'';
Yardley, ``Issue in China: Many in Jails Without Trial''; Chiang Hsun,
``NPC To Replace Re-education Through Labor System''; Tim Luard,
``China's `Reforming' Work Programme,'' BBC News (Online), 13 May 05.
\56\ Robin Munro, A Question of Criminal Madness: Judicial
Psychiatry and Political Dissent in the People's Republic of China,
September 2004 (doctoral thesis on file with the Commission).
\57\ Ibid., 13, 322-343; Commission Staff Interview.
\58\ UNWGAD Report, paras. 64, 66.
\59\ or a description of sometimes arbitrary and brutal treatement
in these institutions, see Robin Munro, A Question of Criminal Madness.
\60\ Forced Drug Detoxification Measures [Qiangzhi jiedu banfa],
issued 1 January 95, art. 5.
\61\ Regulations on the Handling of Re-education Through Labor
Cases By Public Security, art. 9.
\62\ ``Treatment Requires Psychological Support,'' China Daily, 25
June 05 (FBIS, 25 June 05).
\63\ Jiang Zhuqing , Jiao Xiaoyang, ``Battles Won on Drugs, But War
Rages On,'' China Daily, 27 May 05 (FBIS, 27 May 05). According to a
Chinese source, 580,000 individuals had been ``accepted'' into RETL
drug detention centers through the end of 2004. ``A Total of 580,000
Accepted for Drug Detoxification, China's RETL Drug Detoxification
Model Basically Complete'' [Leiji shourong jieduzhe 58 wan, zhongguo
laojiao jiedu moshi jiben chengxing], China News (Online), 24 June 05.
\64\ Leu Siew Ying, ``Addict Dies in Rehabilitation Center,'' South
China Morning Post, 4 August 05 (FBIS, 4 August 05); Leu Siew Ying,
``Drug Rehabilitation Centre Inmates Sometimes Faced with Deadly
Abuse,'' South China Morning Post (Online), 5 August 05.
\65\ Ibid.
\66\ Ibid. Key footage from a surveillance camera that had been
installed to prevent abuses apparently is missing without explanation.
\67\ CECC, 2004 Annual Report, 5 October 04, 18.
\68\ Ibid.
\69\ Ibid.
\70\ Tu Chaohua, ``For Urban Beautification, 7 Indigents Are
Abandoned in the Wilderness'' [Wei zhengdun shirong, 7 ming liulangren
bei paosong huangye], China Youth Online, 7 June 05. According to the
article, a January sweep of vagrants and mentally ill persons in
Ganzhou city, Jiangxi province, left five people missing and presumed
dead. Local officials have admitted that the roundup, which they
referred to as custody and repatriation, was an ``administrative
mistake,'' but claim that they have disciplined the officials involved
and closed the matter. According to a later report, one of the
individuals was later found. Li Qing, Chen Xiuqi, ``News Comes Out in
the Chongyi Vagrant Abandonment, Secret Rule To Send Back and Forth
Between Counties'' [Chongyi paosong liulang qitao renyuan baolu neirong
xian yu xian hu qian jingcheng qianguize], Legal Daily (Online), 15
June 05.
\71\ Ibid. In a subsequent commentary, a China Youth Online writer
expressed concern about whether the aid system has been implemented and
strongly criticized local Jiangxi officials over the incident. Yang
Tao, ``Civil Affairs Ministry Can't Abandon the Weak'' [Minzhengbu bu
neng paoqi ruozhe], China Youth Online, 9 June 05.
\72\ For just a few of the many Western reports on torture in
China, see ``Three Tibetans Jailed for Suspected Separatism,'' Radio
Free Asia (Online), 23 October 04; ``Falun Gong Practitioner Reunites
with Husband After 3 years in China Labor Camp,'' Newsday (Online),
reprinted in Lexis/Nexis, 30 September 04; Kate McGeown, ``China's
Christians Suffer for Their Faith,'' BBC News (Online), 9 November 04;
``Tiananmen Protester Reports on Tortured Mao Portrait Protester,''
Agence France-Presse, 22 November 04 (FBIS, 22 November 04); Human
Rights in China Press Release, ``New Account Sheds Light on Degrading
Conditions at Inner Mongolia's Chifeng Prison,'' 20 December 04; Human
Rights Watch, ``Country Summary--China,'' January 2005; and Nora
Boustany, ``Rebiya Kadeer: After Horrors of Prison, Constant Kisses and
Hugs,'' Washington Post (Online), 30 March 05.
\73\ See, e.g., ``Suggestions for Enhancing the Rights of Lawyers''
[Wei zhengjin lushi quanli jianyan xiance], China Legal Publicity
(Online), November 2004; ``Return of `Murdered Wife' Calls China's
Judicial System in Question,'' People's Daily (Online); Lin Wei, ``Can
Audio and Videotaping Really Keep Torture Under Control? '' Legal Daily
(Online); Guo Hengzhong, ``Coercing Confessions Through Torture
Seriously Violates Human Rights, Perfecting the System Should Be a
Matter of Vital Urgency'' [Xingxun bigong yanzhong qinfan renquan,
wanshan zhidu ying shi dangwuzhiji], Legal Daily (Online), 24 June 05.
\74\ See, e.g., ``Sichuan Investigates and Prosecutes a Case Where
Torture Led to Person's Death'' [Sichuan chachu yiqi xingxun bigong
zhiren siwangan], China Youth Online, 18 November 04; Zhou Wenying, Zou
Shilai, ``Jiangxi Fuzhou: Make Inquiries a Required Procedure in
Examining Arrests'' [Jiangxi Fuzhou: ba xunwen zuowei shencha daibu
bijing chengxu], Procuratorate Daily (Online), 4 January 05; Liu Li,
``Sixty Officials Charged with Dereliction of Duty, Abuse of Power,''
China Daily (Online), 26 January 05; ``Detention Discipline Incites
Detainees to Whip Convict for Six Hours, Leading to His Death''
[Kanshousuo guanjiao zhizhi zai ya renyuan bianda fanren 6 xiaoshi zhi
qi siwang], Boxun (Online), 8 February 05 (citing a Heilongjiang Daily
story on the case); Wan Xingya, ``Civil Servants Violating Human
Rights'' [Gongzhi renyuan qinfan renquan fanzui], China Youth Online,
27 July 05 (noting that between July 2004 and July 2005, procuratorates
prosecuted 1,751 officials for human rights violations, including
illegal detentions, torture, and other violations); `` `Nie Shubin
Murder Case' Still Unresolved,'' Southern Weekend; ``Murdered Wife
Lives, Proves Husband's Innocence,'' China Daily (Online), 4 April 05;
``14 Years of an Unjust Case of Wife Murder, `Liaoning's She Xianglin'
Li Huawei Obtains State Compensation,'' People's Daily; Lei Dao, ``Why
No Compensation After Eight Years of Unjust Imprisonment,'' Legal
Daily; Fei Zhiyong, ``Supreme People's Procuratorate Publishes Three
Criminal Cases of Serious Infringements on Human Rights Involving
Confessions Coerced Through Torture, etc.'' [Zuigaojian gongbu xingxun
bigong deng 3 qi yanzhong qinfan renquan fanzuian], Procuratorate Daily
(Online), 27 July 05.
\75\ See notes for the following paragraph for examples of these
discussions.
\76\ See, e.g., Fu Kuanzhi, ``Three Essential Elements That Must Be
Put Forth to Put a Stop to Torture'' [Dujue xingshi bigong xu jubei
sange yaosu], Procuratorate Daily (Online), 11 August 04; Li Jinlin,
``China Law Society Opens Research Forum on the Torture Problem''
[Zhongguo faxuehui zhaokai xingxun bigong wenti yanjiu zuotanhui],
Procuratorate Daily (Online), 30 January 05; ``Return of `Murdered
Wife' Calls China's Judicial System in Question,'' People's Daily;
Cheng Jishan, ``Radical Policies to Eliminate the Extortion of
Confessions Through Torture'' [Xiaochu xingxun bigong de zhiben zhice],
Legal Daily (Online), 13 April 05; ``Don't Allow the Wings of Justice
to Break: Using Unjust Cases to Look at Confessions Extorted Through
Torture,'' Legal Daily; Guo Hengzhong, ``Coercing Confessions Through
Torture Seriously Violates Human Rights, Perfecting the System Should
Be a Matter of Vital Urgency''; ``The `Nie,' `She' Cases in Lawyers'
Eyes: Rethinking Necessary Before Judicial System Can Be Improved,''
Criminal Defense Net.
\77\ Ibid. Under current Chinese law and judicial interpretations,
judges have the discretion to exclude illegally obtained evidence, and
such evidence may not form the basis for a judgment. However, they are
not required to exclude such evidence. SPC Interpretation on Several
Issues Regarding Implementation of the PRC Criminal Procedure Law
[Zuigao renmin fayuan guanyu zhixing zhonghua renmin gongheguo xingshi
susongfa ruogan wenti de jieshi], issued 29 June 98. One Procuratorate
Daily article argues that illegally obtained evidence should not be
excluded, provided the evidence can be verified. Fu Kuanzhi, ``Three
Essential Elements That Must Be Put Forth to Put a Stop to Torture.''
\78\ For law enforcement emphasis on supervision, see e.g.,
``Return of `Murdered Wife' Calls China's Judicial System in
Question,'' People's Daily; ``China Exclusive: All 3,000 Police Chiefs
to Hold Face-to-Face Meetings With Petitioners,'' Xinhua, 18 May 05
(FBIS, 18 May 05); Jiang Hong, ``Commentary: Use Vigorous Legal
Supervision to Prevent Incorrect Cases''; and SPP rectification
campaigns noted earlier in this section.
\79\ Cao Desheng, ``Rights Infringements in Focus.''
\80\ ``Jiangxi Fuzhou: Make Inquiries a Required Procedure in
Examining Arrests,'' Procuratorate Daily (Online). Prosecutors
typically only review a paper file of cases when approving the formal
arrest of criminal suspects.
\81\ ``Supreme People's Procuratorate Confirms Emphasis of
Investigative Supervision This Year'' [Zuigaojian queding jinnian
zhencha jiandu zhongdian], Legal Daily (Online), 17 May 05.
\82\ ``China Exclusive: All 3,000 Police Chiefs to Hold Face-to-
Face Meetings With Petitioners in 3 Months,'' Xinhua.
\83\ Bradley S. Klapper, ``UN: China Allows First Probe on
Torture,'' Associated Press, 23 August 05, reprinted in Washington Post
(Online), 23 August 05.
\84\ ``Confessions Extracted Through Torture May Not Be Used as
Evidence: On May 1, Sichuan Province Experiments With `Several Opinions
Regarding the Standardization of Criminal Evidence Work' '' [Bichulai
de kougong bu neng zuowei zhengju, Sichuan sheng 5 yue 1 hao qi shixing
``Guanyu xingshi zhengju gongzuo de ruogan yijian''], Procuratorate
Daily (Online), 13 April 05. Several Chinese legal scholars have
expressed concern that the rule does not go far enough, and that
external checks on abuse and better evidentiary standards are
necessary. Qin Ping, ``How Local Criminal Evidence Standards Guarantee
Implementation of the Criminal Procedure Law'' [Difang de xingshi
zhengju guifan ruhe baozhang xingshi susongfa de zhixing], Legal Daily
(Online), 22 April 05. In the first case under the new rules, a Chengdu
court reportedly held a hearing on a defendant's complaint that police
coerced his confession through torture and found that the allegation
was unsubstantiated. Gu Ping, Li Zhen, ``Is It Torture or Not? Police
Go To Court to Present Evidence'' [Shifou xingxun bigong, jingcha
chuting zhizheng], Procuratorate Daily (Online), 6 June 05.
\85\ Scholars from the Procedural Research Center at the Chinese
University of Politics and Law in Beijing designed the project and
chose Haidian district, Beijing; Baiyin district, Gansu; and Jiaozhu
city, Henan, as the three pilot districts. ``When Suspects Are
Interrogated, They May Request Audio or Videotaping'' [Xianyiren
shoushen ke shenqing luyin luxiang], Legal Daily (Online), 8 May 05.
Under the program, suspects are reportedly informed of their rights and
given the choice of having a lawyer present free of charge, having the
interrogation audiotaped or videotaped, or proceeding without any of
the above. ``Beijing Haidian Police Experiment With Having Lawyers
Present During Interrogation, Take Strict Precautions Against Torture''
[Beijing haidian jingfang shixing lushi pangting shenxun zhi, yanfang
xingxun bigong], China East Day (Online), 20 May 05.
\86\ Liao Weihua, ``Many Sides Promote the Ten-year Major Amendment
of the Criminal Procedure Law, Consensus on Guarding Against
Confessions Coerced Through Torture'' [Duofang tuidong xingsufa shinian
daxiu, fangfan xingxun bigong cheng gongshi], Beijing News (Online), 13
July 05.
\87\ Ibid.
\88\ Ibid.
\89\ For a discussion of corresponding amendments to the PRC
Criminal Procedure Law that are under consideration, see Liao Weihua,
``Many Sides Promote the Ten-year Major Amendment of the Criminal
Procedure Law''; ``China's `Criminal Procedure Law' Will Again Undergo
Large-Scale Amendment [Zhongguo ``xingshi susongfa'' jiang zaici
jinxing daguimo xiuding], Procuratorate Daily (Online), 12 October 04;
Li Yu, ``Reforms for More Rights,'' Beijing Review (Online), 25
November 04. Several Chinese sources suggest that the Sichuan evidence
experiment will accelerate the implementation of a similar rule at the
national level. Qin Ping, ``How Local Criminal Evidence Standards
Guarantee Implementation of the Criminal Procedure Law''; ``Lawyers at
Interrogations Can Protect Suspect's Rights and Interests, Represents
Rule of Law Progress'' [``Lushi zai chang'' ke baohu xianyiren quanyi,
biaozhi fazhi jinbu], Beijing Times, available on ACLA Defense Lawyer
Net, 23 May 05.
\90\ See, e.g., ``Suggestions for Enhancing the Rights of
Lawyers,'' China Legal Publicity (Online); Li Yu, ``Reforms for More
Rights''; Cheng Jishan, ``Radical Measures to Policies Eliminate The
Extortion of Confessions Through Torture''; Qin Ping, ``How Local
Criminal Evidence Standards Guarantee Implementation of the Criminal
Procedure Law''; ``China Needs Better Enforcement of Ban on Torture--
Lawyers,'' Wall Street Journal (Online), 14 April 05; Guo Hengzhong,
``Coercing Confessions Through Torture Seriously Violates Human Rights,
Perfecting the System Should Be a Matter of Vital Urgency''; Wang
Changfeng, ``Assistance of Lawyers From the First Moment'' [Di yi
shijian hou de lushi bangzhu], Legal Daily (Online), 2 June 05.
\91\ Liao Weihua, ``Many Sides Promote the Ten-year Major Amendment
of the Criminal Procedure Law.''
\92\ PRC Criminal Procedure Law, arts. 33, 34; Regulations on Legal
Aid, issued 16 July 03, art. 12.
\93\ PRC Criminal Procedure Law, art. 34; Regulations on Legal Aid,
chapter 2.
\94\ State Council Information Office, ``China's Human Rights
Progress in 2004,'' April 2005 (FBIS, 13 April 05).
\95\ Chinese sources generally cite a figure of 30 percent for
defense representation. See, e.g., ``Don't Allow the Wings of Justice
to Break: Using Unjust Cases to Look at Confessions Extorted Through
Torture,'' Legal Daily; Guo Xiaoyu, ``Lawyers Appeal: Abolish `The
Crime of Lawyer Evidence Fabrication' '' [Lushi huyu: quxiao ``lushi
weizhengzui''], Legal Daily (Online), 1 June 05; Wang Changfeng,
``Assistance of Lawyers From the First Moment''; Wang Yu, Yu Nayang,
``Lawyers: We Are Fighting For Our Own Rights'' [Lushi: Women bu shi
zai wei ziji zheng quanli], Legal Daily (Online), 16 June 05. However,
one source cites figures as low as a 20 percent. Liao Weihua, ``Lawyers
Right to Be Present Should Be Guaranteed in Amendments'' [Lushi
zaichangquan ying xiufa quebao], Beijing News (Online), 17 May 05.
According to one Western researcher, Chinese counterparts privately
suggest that the official 30 percent figure for defense representation
is too high. Commission Staff Interview.
\96\ Ibid.
\97\ PRC Criminal Procedure Law, art. 96.
\98\ Commission Staff Interview; UNWGAD Report, para. 36; ``Lawyers
Law Prepared for Changes'' [Lushifa yunniang bianlian], Beijing News
(Online), 16 May 05; Wang Changfeng, ``Assistance of Lawyers From the
First Moment''; Hu Cong, ``Tighter Rein on Law Enforcement Demanded.''
\99\ Commission Staff Interview. The public security authorities
reportedly argued that such meetings were ``inappropriate'' or
``inconsistent with Chinese law.''
\100\ Tan Weiping, ``Beijing: More Than 80 percent of Criminal
Defendants Don't See a Lawyer Within 48 Hours'' [Beijing: guo 8 cheng
xianfan 48 xiaoshi nei jianbudao lushi], Beijing Youth Daily, reprinted
in ACLA Defense Lawyer Web site, 31 May 05. Another survey reportedly
revealed that only 4.6 percent of suspects were able to meet with their
lawyers within the first three days of detention. Wang Changfeng,
``Assistance of Lawyers From the First Moment.''
\101\ Tan Weiping, ``Beijing: More Than 80 percent of Criminal
Defendants Don't See a Lawyer Within 48 Hours.''
\102\ Commission Staff Interview.
\103\ Law in Political Transitions, Written Statement submitted by
Jerome A. Cohen. Under Article 36 of the CPL, the defense may not
examine and duplicate official materials related to the case until
after the case is transferred to the procuratorate for prosecution.
\104\ Commission Staff Interview. See also, e.g., UNWGAD Report,
para. 35; ``Lawyers Law Prepared for Changes,'' Beijing News;
``Suggestions for Enhancing the Rights of Lawyers,'' China Legal
Publicity; Wu Nanlan, ``Groups Call for Lawyers' Right to
Investigate,'' China.org, 23 May 05 (FBIS, 24 May 05).
\105\ PRC Criminal Procedure Law, art. 37.
\106\ Li Weihua, ``Deep Analysis of `Today's Court Hearings Have No
Witnesses' '' [``Jinri tingshen wu zhengren'' de shenceng pouxi],
Democracy and Law, No. 4 (2005), reprinted in Guangming Net (Online), 3
April 05; Qin Ping, ``How Local Criminal Evidence Standards Guarantee
Implementation of the Criminal Procedure Law''; Ji Xiangde,
``Commentary: Let Witnesses Come to Court and Testify, Most Needed Are
Systemic Guarantees,'' Procuratorate Daily (Online), 7 December 04
(noting that only 5 percent of witnesses appear at criminal trials, and
citing the shocking example of Nanning, Guangxi province, where the
rates of witness attendance at criminal trials were 0.33 percent, 0.7
percent, and 1.27 percent for the years 2000, 2001, and 2002,
respectively).
\107\ According to the report, police have even tortured witnesses
in some cases. Li Weihua, ``Deep Analysis of `Today's Court Hearings
Have No Witnesses.' ''
\108\ Under the CPL, ``the testimony of a witness may be used as
the basis in deciding a case only after the witness has been questioned
and cross-examined in the courtroom by both sides.'' PRC Criminal
Procedure Law, art. 47.
\109\ Wan Xingya, ``Requirement That Witnesses Appear in Court to
Testify Will Be Written into the New Criminal Procedure Law'' [Zhengren
yao chuting zuozheng jiang xiejin xin xingshi susongfa], China Youth
Daily, reprinted in Defense Lawyer Net, 8 August 05.
\110\ Guo had represented journalists, Falun Gong practitioners,
and imprisoned attorney Zheng Enchong. The Shanghai Justice Bureau
reportedly accused Guo of ``on several occasions adopting positions and
making statements contrary to the law and the Constitution'' and
``defiling and slandering'' the Communist Party and government.
Reporters Without Borders Press Release, ``Lawyer for Several
Journalists and Cyberdissidents Banned From Practising for One Year,''
4 March 05; Bill Savadove, `` `Accidental Activist' Under House
Arrest,'' South China Morning Post, 16 March 05 (FBIS, 16 March 05).
\111\ Jian Fa, ``Independence Called for Lawyers,'' Beijing Review,
October 2004; UNWGAD Report, para. 37; Guo Xiaoyu, ``Lawyers Appeal:
Abolish `The Crime of Lawyer Evidence Fabrication.' ''
\112\ Wang Ying, ``The Irregular Publication of a Criminal Defense
Lawyer Work Environment Survey Report'' [Xingbian lushi zhiye
zhuangkuang diaocha baogao de fei zhengchang gongbu], 21st Century
Business Herald (Online), 11 August 04. According to the Legal Daily,
of 23 cases of lawyer evidence fabrication that have actually gone to
trial, the lawyer was found innocent or the case was withdrawn in 11
cases; the lawyer was found guilty in 6 cases; the lawyer avoided
criminal punishment in 1 case; and 5 cases have not yet been concluded.
Guo Xiaoyu, ``Lawyers Appeal: Abolish `The Crime of Lawyer Evidence
Fabrication.' ''
\113\ Jian Fa, ``Independence Called for Lawyers.''
\114\ Although there was domestic discussion of removing Article
306 from the Criminal Code last year, there has been no news of further
steps to repeal the controversial provision. During a recent NPCSC
inquiry, lawyers renewed their calls for repeal of Article 306. Guo
Xiaoyu, ``Lawyers Appeal: Abolish `The Crime of Lawyer Evidence
Fabrication.' '' For a compilation of more than 27 cases involving
lawyer detentions, see Stacy Mosher, ``In Custody, Lawyers in
Detention,'' China Rights Forum, No. 2, 2005, 100-5.
\115\ Wang Ying, ``The Irregular Publication of a Criminal Defense
Lawyers Work Environment Survey Report.'' According to the article, the
initial results are said to have ``shocked people,'' with one observer
noting that the problems were worse than they thought possible. In
response, the Beijing Justice Bureau reportedly blocked publication of
the initial survey results and refused applications to continue the
research program in 2003 and 2004.
\116\ ``Lawyers Law Prepared for Changes,'' Beijing News; `` `Nie
Shubin Murder Case' Still Unresolved,'' Southern Weekend; ``What It
Means to Be a Lawyer: A Special Interview With Zhang Sizhi'' [Zuo yige
lushi gai zuo de shiqing: zhuanfang Zhang Sizhi], Southern Window,
reprinted in Sina.com, 15 October 04.
\117\ Yan Yongwei, ``Liaoning Establishes Provisions Requiring Case
Handling Organs to Guarantee Arrangements for Lawyer Meetings Within 48
Hours'' [Liaoning chutai guiding yaoqiu banan jiguan baozhang lushi
huijian 48 xiaoshi nei anpai], Legal Daily (Online) 16 November 04;
``When Suspects Are Interrogated, They May Request Audio or
Videotaping,'' Legal Daily.
\118\ Prosecutors approved the arrest of 811,102 suspects and
refused to approve the arrest of 67,904 suspects in 2004. Suspects thus
had a 7.7 percent chance that prosecutors would reject public security
applications for a formal arrest in 2004. Prosecutors decided to indict
867,186 suspects and refused to indict 21,554 suspects in 2004. Once
prosecutors approved an arrest, therefore, suspects had only a 2.4
percent chance that prosecutors would decide not to proceed to trial.
SPP Work Report, 9 March 05. By contrast, criminal courts of first
instance convicted defendants in 99 percent of cases. See infra,
Fairness of Criminal Trials and Appeals.
\119\ ``Suggestions for Enhancing the Rights of Lawyers'' China
Legal Publicity. See also Wang Yu, Yu Nayang, ``Lawyers: We Are
Fighting For Our Own Rights''; Guo Xiaoyu, ``Lawyers Appeal: Abolish
`The Crime of Lawyer Evidence Fabrication.' ''
\120\ ``Lawyers Law Prepared for Changes,'' Beijing News; ``China's
`Criminal Procedure Law' Will Again Undergo Large-Scale Amendment,''
Procuratorate Daily.
\121\ Criminal courts of first instance completed the trials of
770,947 defendants in 2004 and found only 2,996 defendants (0.4
percent) not guilty. An additional 12,345, or 1.6 percent, of
defendants ``avoided criminal punishment.'' SPC Work Report, 8 March
05. Some Chinese commentators questioned whether high convictions rates
should be viewed as a sign of law enforcement effectiveness. Wang
Songmiao, ``Commentary: Looking at 100 percent Conviction Rates
Discriminately'' [Pinglun: bianzheng kandai 100 percent de youzui
juelu], Procuratorate Daily (Online), 25 May 05.
\122\ Criminal courts heard 644,248 first instance criminal cases
in 2004 and completed appeals in 96,204 criminal cases. SPC Work
Report, 8 March 05. ``2004 Situation of the Adjudication of Second
Instance Cases in the Nation's Courts'' [2004 quanguo shenli gelei
ershen anjian qingkuang], China Court Web site, 4 October 05.
\123\ Appeals courts changed the original judgment in 12,730, or
13.2 percent, of all cases heard on appeal. In addition, courts changed
judgments in 1,371 criminal cases that were given an additional
rehearing under court adjudication supervision procedures. In total,
appeals courts canceled 2.1 percent of the first instance verdicts in
the 644,248 total criminal cases adjudicated in 2004. SPC Work Report,
8 March 05. In China, prosecutors may appeal a ``not guilty'' verdict,
but given the conviction rate of more than 99 percent in first instance
cases, it is assumed that almost all of the 96,204 cases heard on
appeal involved guilty verdicts at the trial level. In addition to
changing the verdict in 12,730 cases, appeals courts sent 6,198 cases
back to trial courts for retrial.
\124\ In at least one prior year in which a similar number of cases
were ``changed'' or sent back for retrial, court statistics indicate
that the total conviction rate in all cases, including appeals and
rehearings, was over 99 percent. 2002 China Law Yearbook [2002 Zhongguo
falu nianjian], (Beijing: Legal Press, 2003), 144, 1240. This suggests
that few verdicts are ``changed'' to not guilty and that few defendants
are exonerated after retrials. As discussed later in this section,
recent Chinese media accounts also suggest that trial courts commonly
reconvict defendants on retrial.
\125\ PRC Criminal Procedure Law, arts. 182, 203-7.
\126\ Under Chinese law, procuratorates may be required to pay
criminal compensation for wrongful arrest and prosecution if defendants
are found not guilty. PRC State Compensation Law, enacted 12 May 1994,
art. 15.
\127\ PRC Criminal Procedure Law, arts. 203-4. A court has the
discretion to decide whether an adjudication supervision petition from
a defendant meets the legal requirements for a retrial. In contrast,
Article 205 requires a retrial when a people's procuratorate requests
adjudication supervision.
\128\ Ge Lin, ``Why a Not Guilty Verdict is a Rarity of Rarities.''
\129\ See, e.g., Liu Binglu, ``Misuse of Retrials Is a Major Reason
for Unjust Cases'' [Lanyong fahui chongshen shi zhi yuanan zhuyin],
Beijng News (Online), 4 April 05; Che Hao, ``Looking at `Repeat
Prosecutions' in the Criminal Process as `Judicial Marathons' '' [Cong
`sifa malasong' kan xingsuzhong de `chongfu zhuisu'], 21st Century
Business Herald (Online), 6 December 04; ``The `Nie,' `She' Cases in
Lawyers' Eyes: Rethinking Necessary Before Judicial System Can Be
Improved,'' Criminal Defense Net; Ge Lin, ``Why a Not Guilty Verdict is
a Rarity of Rarities.''
\130\ Liu Binglu, ``Misuse of Retrials Is a Major Reason for Unjust
Cases''; ``Don't Allow the Wings of Justice To Break: Using Unjust
Cases to Look at Confessions Extorted Through Torture,'' Legal Daily;
Veron Mei-Ying Hung, ``Judicial Reform in China: Lessons from
Shanghai,'' Carnegie Endowment for International Peace, No. 58 (April
2005), 17.
\131\ For examples of such cases, see Tang Weibin, ``Hebei She
Xianglin `Wife Murder' Case: One Unjust Case, Three Points to Rethink''
[Hebei She Xianglin ``shaqi'' an: yi qi yuanan, san dian fansi],
People's Daily (Online), 8 April 05. For other examples, see ``Don't
Allow the Wings of Justice to Break: Using Unjust Cases to Look at
Confessions Extorted Through Torture'' Legal Daily; ``Why Aren't Eight
Years of Unjust Imprisonment Being Compensated? '' Legal Daily; Wang
Ying, ``The Irregular Publication of a Criminal Defense Lawyer Work
Environment Survey Report''; ``The `Nie,' `She' Cases in Lawyers' Eyes:
Rethinking Necessary Before Judicial System Can Be Improved,'' Criminal
Defense Net; ``Analyzing the Xu Jingxiang Unjust Case,'' China Youth
Online.
\132\ See, e.g., Liu Binglu, ``Misuse of Retrials Is a Major Reason
for Unjust Cases''; ``The `Nie,' `She' Cases in Lawyers' Eyes:
Rethinking Necessary Before Judicial System Can Be Improved,'' Criminal
Defense Net.
\133\ Tian Yu, ``Court Reforms in 2005: People's Assessors Begin
Work May 5'' [2005 nian fayuan gaige: renmin peishenyuan `wuyi'
shanggang], People's Court Net (Online), 14 February 05.
\134\ `` `Nie Shubin Murder Case' Still Unresolved,'' Southern
Weekend (quoting the judge in the original case as stating, ``Now, I
can't say whether this case was correct or not. It's determined by what
the leaders say. Whatever the leaders say is what I decide.'');
Commission Staff Interview.
\135\ Tang Weibin, Li Changzheng, ``How Do Unjust Cases Come About?
Following the Trail of Hubei's She Xianglin `Wife Murder' Case''; Wang
Yijun, Yang Siyuan, ``Xu Jingxiang, From A Sentence of 16 Years to
Innocence and Liberation,'' [Xu Jingxiang: cong panxing 16 nian dao
wuzui jiefang], China Youth Online, 10 May 05; ``14 Years of An Unjust
Case of Wife Murder, `Liaoning's She Xianglin' Li Huawei Obtains State
Compensation,'' People's Daily; ``The `Nie,' `She' Cases in Lawyers'
Eyes: Rethinking Necessary Before Judicial System Can Be Improved,''
Criminal Defense Net. For a recent discussion of Party interference
based on a detailed study of courts in Shanghai, see Hung, ``Judicial
Reform in China: Lessons from Shanghai,'' 17.
\136\ ``China Hints at Death Penalty Reform,'' China Daily, 10
March 05 (FBIS, 10 March 05).
\137\ For an explicit reference to the ``execute fewer, execute
cautiously'' policy by a public security official, see Yang Zhongmin,
``Substitute Death Sentences That Are Immediately Executed With
Suspended Sentences'' [Yi `sihuan' tidai `sixing liji zhixing'],
Southern Weekend (Online), 17 March 05. According to one Chinese
source, the number of death sentences in China has dropped every year
since 1997 except in 2001, the year China launched a new ``strike
hard'' campaign, and the number of death sentences in 2004 was a little
more than half the highest yearly total recorded previously. ``SPC
Draws Up Draft to Take Back Death Penalty Review Power, Cautiously
Using the Death Penalty is in Accord With the Spirit of the Law''
[Gaofa si shouhui sixing fuhequan, shenyong sixing fuhe lifa jingshen],
People's Daily (Online), 18 November 04.
\138\ ``PRC Foreign Ministry Spokesman Defends Keeping PRC
Execution Statistics Secret,'' Agence France-Presse, 5 February 04
(FBIS, 5 February 04).
\139\ Domestic sources that hint at the annual number of executions
conflict. In March 2004, an NPC delegate suggested that Chinese courts
issue death sentences for immediate execution in ``nearly 10,000 cases
per year.'' ``41 Representatives Jointly Sign Proposal for the Supreme
People's Court to Take Back the Power of Death Penalty Approval'' [41
daibiao lianming jianyi, zuigao renmin fayuan shouhui sixing hezhun
quan], People's Daily (Online), 10 March 04. A recent Chinese report
indicated that provincial high people's courts review nearly 90 percent
of all death sentences, which means that about 10 percent of such
reviews are conducted by the SPC. ``Conference on Ways for the Supreme
People's Court to Take Back the Power of Death Penalty Review Opens''
[``Zuigao renmin fayuan shouhui sixing fuhequan zhi duici'' yantaohui
zhaokai], Defense Lawyer Net, 1 June 05. According to the 2004 Supreme
People's Court Work Report, the SPC reviewed 300 death sentences in
2003. SPC Work Report, 9 March 04. Taken together, these figures
suggest that China issues about 3,000 death sentences annually.
\140\ For the debate over the death penalty, see, e.g., ``Special
Program: Should the Death Penalty Continue or Be Abolished? Experts,
Netizen Views Collide'' [Tebie cehua: sixing shi cun shi fei? Zhuanjia,
wangyou guandian pengzhuang], People's Daily (Online), 20 January 05;
``Opinions Differ: Debate Over Death Penalty Reform Followed With
Interest'' [Yijian buyi, sixing gaige lunzhen ling ren guanzhu], China
News Weekly, reprinted in Southern Weekend (Online), 31 January 05; Hu
Cong, ``Court Gets Back Power of Death Reviews,'' China Daily, 14 March
05 (FBIS, 14 March 05); ``Legal Redemption for Erroneous Death
Sentences'' [Sixing wupan de falu jiushu], Modern Bulletin (Online), 16
March 05; ``Experts Recommend That Death Penalty Reviews Establish
Hearing Phase to Avoid Judicial Corruption'' [Zhuanjia jianyi sixing
fuhe she tingzheng huanjie bimian sifa fubai], Beijing Youth Daily,
reprinted in People's Daily (Online), 28 March 04.
\141\ Ibid.
\142\ Yang Tao, ``In Abolishing or Retaining the Death Penalty, We
Can't Ignore Public Opinion'' [Sixing cunfei buke hushi minyi], China
Youth Online, 26 January 05; ``Eliminating the Death Penalty Means
Weakening the Cost of Retribution for Wrongdoing'' [Feichu sixing yiwei
zhe xueruo zuifan wei zuinie suo fuchu de daijia], Beijing News,
reprinted in Peoples Net (Online), 6 February 05; ``Who Will Benefit
From Reducing Capital Punishment,'' Beijing Review (Online), 16
February 05.
\143\ ``Eliminating the Death Penalty Means Weakening the Cost of
Retribution for Wrongdoing,'' Beijing News; ``China Hints at Death
Penalty Reform,'' China Daily; ``Backgrounder: Death Penalty in
China,'' Xinhua, 14 March 05 (FBIS, 14 March 05); ``China Not to
Abolish Death Penalty: Premier,'' Xinhua, 14 March 05 (FBIS, 14 March
05); ``Supreme People's Court Demands Strict Grasp of `Death Penalty'
'' [Zuigaofa yaoqiu yange bahao ``sixing'' guan], People's Daily
(Online), 20 July 05.
\144\ ``Who Will Benefit From Reducing Capital Punishment? ''
Beijing Review; Hu Cong, ``Court Gets Back Power of Death Reviews'';
Yang Zhongmin, ``Substitute Death Sentences That Are Immediately
Executed With Suspended Sentences'' [Yi ``sihuan'' tidai ``sixing''
liji zhixing], Southern Weekend (Online), 17 March 05.
\145\ See e.g., ``Central Government To Take Back Power to Review
Death Sentences Next Year,'' Chengdu Daily (Online), 13 August 05.
While the CPL requires the SPC to review all death sentences, the SPC
has delegated this power in cases involving rape, murder, and certain
other crimes to provincial high courts. Chinese experts have long
argued that this system is both unlawful and problematic, since high
courts serve as both courts of second instance and reviewing courts.
For a more detailed discussion of expert objections to high court
review of death sentences, see CECC, 2004 Annual Report, 24 and
accompanying notes.
\146\ ``Change of Review on Death Penalty Vital,'' China Daily, 4
March 05 (FBIS, 4 March 05); ``Next Year, Hopefully a Special Death
Penalty Review Tribunal Will be Established'' [Mingnian youwang
zhuanshe sixing fuheting], Beijing News (Online), 3 March 05; ``SPC May
Establish Review Division in Beijng to Take Back the Power of Death
Penalty Review'' [Zuigaofa keneng zai Beijing shi fuchating shouhui
sixing fuhequan], Beijing News (Online), 14 April 05.
\147\ ``Central Government To Take Back Power to Review Death
Sentences Next Year,'' Chengdu Daily; Supreme People's Court Will Add
Three Criminal Tribunals to Cope With Reclaiming the Death Penalty
Review Power'' [Zuigao renmin fayuan jiang zengshe 3 ge xingting
yingdui sixing fuhequan shouhui], China Youth Daily (Online), 27
September 05.
\148\ Guo Guangdong, `` `Provincial Level' Rights to Review Death
Sentences Should Be Given an `Abrupt Death' '' [``Shengji'' sixing
hezhuquan ying yu ``turang siwang''], Southern Weekend (Online), 14
October 04; Zhao Ling, `` `Nie Shubin Wrongful Murder Case'
Unresolved.'' For open hearings, see, e.g., Zhou Baofeng, ``Is
Returning the Power of Death Penalty Review to the Supreme Court
Enough? ''[Sixing hezhunquan huigui zuigao fayuan jiu gou le ma?],
Southern Weekend (Online), 28 October 04; ``Experts Recommend That
Death Penalty Review Establish Hearings Phase to Avoid Judicial
Corruption,'' Beijing Youth Daily. Under the current system, the court
reviewing the death sentence typically only reviews a paper file of the
case.
\149\ ``Opinions Differ: Debate Over Death Penalty Reform Followed
With Interest,'' China News Weekly.
\150\ ``Guangzhou Hospital Expands the Use of Prisoners' Organs for
Transplant Operations,'' Laogai Research Foundation (Online), 31 March
05; ``The Harvesting of Executed Prisoners' Organs: Behind the First
Mafia Case in Central China,'' Laogai Research Foundation Web site, 17
May 05.
\151\ Guo Hengzhong, ``Experts Appeal for Quick Legislation on
Human Organ Transplants'' [Zhuanjia huyu jinkuai jiu renti qiguan yizhi
lifa], Legal Daily (Online), 3 June 05; Li Qing, Huang Hui, ``Why It Is
Difficult For Condemned Prisoners to Donate Organs If They Wish''
[Sixingfan juan qiguan wehe nanruyuan], Legal Daily (Online), 31 May
05; ``Two Condemned Prisoners Vie With Each Other to Donate Their
Kidneys to a Poor Student'' [Liangming sixingfan zhengxiang wei yi
pinkun xuezi juanxian shenzang], China Youth Online, 20 April 05.
\152\ Guo Hengzhong, ``Experts Appeal for Quick Legislation on
Human Organ Transplants.''
\153\ ``Trading of Human Organs Prohibited,'' Xinhua (Online), 5
June 05.
\154\ See, e.g., Xu Lai, ``My Country Has Already Established 2,400
Juvenile Tribunals, Is Presently Looking at Establishing Juvenile
Courts'' [Wo guo yi jianli shaonian fating 2400 yu ge, zhengzai
yunniang chengli shaonian fayuan], China Legal Publicity (Online), 2
November 04; ``Strengthen Juvenile Crime Research, Protect the Healthy
Maturation of Juveniles'' [Jiaqiang qingshaonian fanzui yanjiu, baohu
qingshaonian jiankang chengzhang], Legal Daily (Online), 18 October 04.
\155\ ``Prisoner Escape Rate Down 96.7 Percent in Decade in
China,'' Xinhua, 9 December 04 (FBIS, 9 December 04); ``Ministry of
Justices Opens Second Work Conference on the Expansion of Prison System
Reforms'' [Sifabu zhaokai di er ci jianyu tizhi gaige kuoda shidian
gongzuo huiyi], China Legal Publicity (Online), 24 January 05.
\156\ ``Urgent: Chinese Top Legislature Passes Decision on Expert
Witness Management,'' Xinhua, 28 February 05 (FBIS, 28 February 05).
\157\ ``Procuratorial Organs Ferret Out Illegal Sentence
Reductions, Parole, and Medical Releases Involving More Than 17,000,''
CCTV International, reprinted in People's Daily (Online), 29 October
04.
\158\ Qin Ping, `` `Major Amendment' or `Minor Adjustment' to the
State Compensation Law'' [Guojian peichangfa shi ``daxiu'' haishi
``xiaobu''], Legal Daily (Online), 29 July 05; Cui Li, ``Lawyer's Law
Amendments Near Completion'' [Lushifa xiugai jin weisheng], China Youth
Daily, reprinted in Defense Lawyer Net, 18 May 05; Liao Weihua, ``Court
Set Up Hopefully to Be Separated From Administrative Regions'' [Fayuan
shezhi youwang yu xingzhengqu huafenli], Beijing News (Online), 29
November 04.
\159\ Regulations on the Implementation of People's Supervisor
System (Trial Implementation) [Guanyu shixing renmin jianduyuan zhidu
de guiding (shixing)], issued 2 September 03, amended 7 July 04.
\160\ SPP Work Report, 9 March 05.
\161\ Directive on the Perfection of the People's Assessor System
[Guanyu wanshan renmin peishenyuan zhidu de jueding], issued 28 August
04.
\162\ Ibid. According to the Directive, judges must form a panel
with people's assessors for all criminal, civil, and administrative
cases with considerable social repercussions or cases where litigants
request the presence of the people's assessors. In other cases, parties
may apply for people's assessors to serve. It is unclear whether courts
have the discretion to deny such applications.
\163\ Li Xiao, ``27,000 People's Assessors to Begin Work `May 1' ''
[Zhunbei gongcuo jiuxu 2.7 wan ming peishenyuan ``wuyi'' shanggang],
Fuzhou Daily, 3 March 05.
\164\ For Chinese attention to the need for international
cooperation generally, see e.g., ``Chinese Top Legislator Calls for
Int'l Efforts to Curb Organized Crime,'' Xinhua, 13 September 04 (FBIS,
13 September 04); Li Weiwei, ``Four Major Trends in the Trafficking in
Women and Children, Public Security Organs Face Three Challenges''
[Guaimai funu ertong chengxian 4 da dongxiang, gongan jiguan mianlin 3
ge tiaozhan], Xinhua, reprinted in Procuratorate Daily (Online), 15
February 05. For expanded cooperation with US law enforcement agencies,
see Matt Pottinger, ``US and China Bridge Divisions to Fight Crime,''
Wall Street Journal, 3 March 05, A11.
\165\ Commission Staff Interviews. For news reports on some of
these programs, see, e.g., Jiang Anjie, Zhao Yang, ``17th International
Penal Law Conference Opens in Beijing'' [Di shiqi jie guoji xingfaxue
dahui zai jing zhaokai], Legal Daily (Online), 13 September 04; ``US-
China `Criminal Defense Lawyer Training' Opens in Guangzhou'' [Zhongmei
``xingshi bianhu lushi peixun guanmohui'' zai Guangzhou zhaokai],
People's Daily (Online), 1 November 04; Liu Li, ``All Rise: China
Beijing Gets Taste of US Courtroom,'' China Daily (Online) 13 May 05;
``World Legal Professionals Gather for Beijing Conference,'' Xinhua
(Online), 5 September 05. Some Western NGOs reported obstacles with
implementing criminal justice and other legal programs beginning in
early 2005. Commission Staff Interviews and Correspondence.
\166\ Commission Staff Interviews and Correspondence.
\167\ Bradley S. Klapper, ``UN: China Allows First Probe on
Torture.''
\168\ ``The ICRC in China,'' International Committee for the Red
Cross Web site, 20 July 05.
\169\ ``China and UN Rights Office Agree on Cooperation To Help
Country Implement, Ratify Rights Covenants,'' United Nations Press
Release, 31 August 05.
\170\ The cooperation program outlined in the Memorandum reportedly
includes the projects to assist China find alternative measures to
imprisonment; help the country revise its Criminal Procedure Law, its
Lawyers Law, and any other related laws and regulations, facilitate
capacity building of civil society, and incorporate human rights
education into school and public service curricula. Ibid.
\171\ As the UN High Commissioner arrived in China, authorities
detained writer Liu Xiaobo, Internet dissident Liu Di, and political
theorist Zhang Zuhua, and raided the office of the Empowerment and
Rights Institute, a human rights advisory group. ``HRIC Statement on UN
High Commissioner for Human Rights Visit to China,'' Human Rights in
China Press Release, 31 August 05. According to other reports, police
also detained and beat AIDS activist Hu Jia. ``Chinese Police Beat Up
AIDS Activist During UN Rights Visit,'' Radio Free Asia (Online), 31
August 05.
\172\ China made these commitments in negotiations with the United
States. A Global Review of Human Rights: Examining the State
Department's 2004 Annual Report, Hearing of the Subcommittee on Africa,
Global Human Rights, and International Operations of the House
Committee on International Relations, 17 March 05, Oral Statement of
Michael Kozak.
Notes to Section III(c)--Protection of Internationally Recognized
Labor Rights
\1\ The last figure for labor protests that the Chinese state
released was 100,000 for the year 1999. Despite the government's
efforts to limit reporting on labor protests since 2001, ``it has
nonetheless been possible to collect information on nearly 200 separate
incidents between 1994 and 2004 from the many thousands of unreported
events that actually took place. . . . Indeed, the few episodes that
made it into the media beyond the Chinese mainland usually involve such
protests as railway lay-ins or blockages of major urban thoroughfares,
assaults on and clashes with authorities, detentions and arrests.''
Dorothy Solinger, ``China is No Workers' Paradise,'' Bangkok Post,
reprinted in Asian Labour News (Online), 12 February 05. As Tim Johnson
points out, one of the reasons for worker discontent is the ``disregard
for labor law.'' Tim Johnson, ``Labor Unrest: Migrant Workers Shun
Factory Region in China,'' Detroit Free Press (Online), 13 September
04.
\2\ The closure of state-owned enterprises (SOEs) often produces
corruption when factory officials embezzle the assets of the closed SOE
and leave workers without pay or jobs. For example, in December 2004,
thousands of workers in Luzhou, Sichuan blocked traffic and surrounded
factory officials after a chemical plant was closed. Embezzlement by
factory officials had reportedly bankrupted the factory, which had not
paid its workers for months. After three days of clashes with 1,000
anti-riot police, a number of workers were arrested. ``Ming Pao Reports
Large Scale Worker Protest Against SOE Corruption in Sichuan,'' Ming
Pao, 20 December 04 (FBIS, 20 December 04).
\3\ Lawyers who represent labor protest leaders are often subject
to harassment by authorities. ``People's Republic of China: Labor
Unrest and the Suppression of the Rights to Freedom of Association and
Expression,'' Amnesty International (Online), 30 April 02. Two workers
were arrested after a non-violent strike at a garment factory and
sentenced to five and two years in prison. The workers planned to
appeal their sentences but could not find a lawyer who would agree to
take their case. ``Two Chinese Labor Activists Get Jail Terms For
Demanding Wages and Insurance,'' Associated Press (Online), 17 May 05.
Even when an attorney is available, the chance of a successful outcome
is low. In Shanghai, some 8,000 workers turned to a legal aid center
established by East China University of Politics and Law. One of the
volunteer attorneys said that, ``We do not have very good enforcement
channels for labor law in China.'' Advocates complain that fines are
too low to compel employers to obey the law. Tomio Geron, ``Rights for
China's Workers,'' San Francisco Chronicle (Online), 15 June 05.
\4\ New national legislation targets the problem of wage arrears.
According to recently enacted labor regulations, employers who withhold
workers' wages without good cause and fail to pay the workers within a
set period shall pay an additional fee of not more than the owed wages.
Regulations on Labor Security Supervision [Laodong baozhang jiancha
tiaoli], issued 26 October 04, art. 16. In addition, provincial-level
legislatures have enacted rules to implement the above Regulations. For
example, see Zhejiang Provincial Regulations on Labor Security
Supervision [Zhejiang sheng laodong baozhang jiancha tiaoli], issued 14
April 05. Similarly, a number of provinces and municipalities have
enacted new legislation to improve workplace safety. For example, see
Jiangsu Provincial Regulations on Production Safety [Jiangsu sheng
anquan shengchan tiaoli], issued 31 March 05.
\5\ Chinese experts attribute the difficulties in the
implementation of the Labor Law to changes in socio-economic conditions
since the enactment of the Labor Law in 1993, in particular, the
growing diversity and complexity of ownership and employment forms.
``One Hundred Experts Discuss `Labor Law,' Accompanying Rules and
Regulations Already Being Drafted'' [Bai ming zhuanjia yantao ``laodong
fa,'' peitao falu fagui yi zai qicao], Ministry of Justice Web site, 8
November 04.
\6\ Zhao Heng, ``Labor Law in Effect for Ten Years: Laborers Still
at a Loss'' [Laodong fa shixing shi nian: laodongzhe yiran mangran],
Procuratorate Daily (Online), 7 December 04.
\7\ ``What Makes Workers Turn Against Their `Union,' '' Southern
Metropolitan Daily, translated in China Labour Bulletin (Online), 21
January 05.
\8\ ``One Hundred Experts Discuss Labor Law,'' Ministry of Justice
Web site, 8 November 2004.
\9\ Huang Yong, ``Professor Huang He, NPC Delegate: Labor Law
Urgently Needs Reform'' [Quanguo renda daibiao huang he jiaoshou:
laodongfa jidai xiugai], People's Daily (Online), 7 March 05.
\10\ Zhi Ming, ``China Daily `Opinion': Revamp Rules to Protect
Interest of Ordinary Workers,'' China Daily (Online), 7 January 05
(FBIS, 7 January 05).
\11\ China's top officials renewed calls for stricter supervision
of coal mine safety after a series of large coal mine accidents in the
beginning of 2005, including a gas explosion at Sunjiawan coal mine
that left 216 coal miners dead. Hu Manyun, ``State Safety Supervision
Bureau Emphasizes: Strictly Investigate the Corruption Behind Coal Mine
Accidents'' [Guojia anjian zongju qiangdiao: yancha meikuang shigu
beihou de fubai xianxiang], Southern Metropolitan Daily (Online), 27
March 05.
\12\ ``Safety Agency: Tougher Penalties Needed to Curb China's
Fatal Coal Mine Accidents,'' Xinhua, 5 April 05 (FBIS, 5 April 05).
\13\ Jonathan Watts, ``Blood and Coal: The Human Cost of Cheap
Chinese Goods,'' The Guardian (Online), 14 March 05.
\14\ ``China and the ILO,'' China Labour Bulletin (Online), Issue
No. 58, January-February 2001.
\15\ The United States has ratified only two of the eight ILO Core
Conventions. U.S. State Department officials point out that even
without ratification the Conventions are essentially already
incorporated into U.S. law. For an overview of the United States'
ratification of ILO core conventions, see ``Final Internationally
Recognized Core Labour Standards in the U.S.,'' Union Network
International (Online), 4 September 01.
\16\ For an overview of the relationship between China and the ILO,
see John Chen, ``China and ILO: Formal Cooperation Masks Rejection of
Key Labour Rights,'' Asian Labour Update (Online), Issue No. 44, July-
September 2002.
\17\ ``The ACFTU Wins a Seat in the Workers' Group of the ILO's
Governing Body in June 2002,'' China Labour Bulletin (Online), Vol. 8,
2 July 02; ``A Major Defeat for Workers Struggling for Freedom of
Association in China: HKCTU Statement Concerning the ACFTU's Election
as a Worker Deputy Member in the ILO Governing Body,'' China Labour
Bulletin (Online), 12 June 02.
\18\ PRC Trade Union Law, enacted 3 April 92, amended 27 October
01, art. 11. Thomas Lum, ``Workplace Codes of Conduct in China and
Related Labor Conditions,'' Congressional Research Service, April 2003.
\19\ Stephen Frost, ``China: Facing Reality,'' International Union
of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied
Workers' Associations (IUF) Web site, 10 December 04.
\20\ PRC Trade Union Law.
\21\ ``Wang Zhaoguo, ACFTU Chairman'' [Wang zhaoguo, quanguo zong
gonghui zhuxi], All-China Federation of Trade Unions Web site.
\22\ According to China's Trade Union Law, the ACFTU shall ``uphold
the socialist path, uphold the people's democratic dictatorship; uphold
the leadership of the Chinese Communist Party; uphold Marxist Leninism,
Mao Zedong thought, and Deng Xiaoping theory . . .'' PRC Trade Union
Law, art. 4.
\23\ Han Dongfang, ``It's Our Union--and We Want It Back,''
International Union Rights, reprinted in China Labour Bulletin
(Online), 4 January 05.
\24\ Tim Pringle, ``Industrial Unrest in China: A Labor Movement in
the Making? '' China Labour Bulletin, reprinted in Foreign Policy in
Focus (Online), 20 February 02.
\25\ Yao Fuxin and Xiao Yunliang remain in prison after being
identified as leaders of demonstrations in Liaoyang in March 2002.
``Imprisoned Labor Activist Threatened with End to Family Visits if
Abuse is Revealed,'' Human Rights in China (Online), 1 December 04.
\26\ For example, see ``Inner Mongolian Workers' Six-year Fight for
Unpaid Wages Meets with Police Violence--15 Workers Detained, Several
Others Injured,'' China Labour Bulletin (Online), 7 July 05; Dorothy
Solinger, ``Worker Protests in China--Plentiful, but Preempted? ''
Taipei Times (Online), 18 February 05. For a list of current labor
prisoners in China, see ``A List of Imprisoned Labour Rights Activists
in China,'' China Labour Bulletin (Online), 4 June 05.
\26\ The workers submitted their case for arbitration, but the
arbitration board charged an arbitration fee of 2,540 yuan per person.
The application to waive these fees had to be filed by the Chongqing
Federation of Trade Unions, which refused to file the application. The
workers then sued the union for blocking their efforts to take their
case before the arbitration committee. ``Eighty-Three Migrant Workers
Sue Chongqing Trade Union For Not Acting Responsibly,'' Chongqing
Morning News, translated in Asian Labour News (Online), 15 January 05;
``What Makes Workers Turn Against Their `Union,' '' Southern
Metropolitan Daily.
\28\ Trini Leung, ``ACFTU and Union Organizing,'' China Labour
Bulletin (Online), 26 April 02.
\29\ Lan Xinzhen, ``Multinationals in China are Having to Come to
Terms With Unions,'' Beijing Review, translated in Asian Labour News
(Online), 10 December 04.
\30\ ``ACFTU Ready to Help Wal-Mart Establish Trade Union,'' Xinhua
(Online), 25 November 04.
\31\ ``Thirty-Two McDonald's Restaurant in Tianjin Set Up ACFTU
Trade Union Branches,'' Workers' Daily, reprinted in Asian Labour News
(Online), 15 January 05.
\32\ Commission Staff Interview.
\33\ ``Three Parties Negotiate Minimum Wage Standard For
Guangzhou,'' Workers' Daily, translated in Asian Labour News (Online),
2 December 04. The three parties in this case were the provincial
government, the Guangzhou Enterprise Association, and the Guangzhou
Foreign Enterprise Association. Both associations argued that raising
wages for labor-intensive enterprises would place an additional burden
on these industries in comparison to high-tech companies.
\34\ ``Guangdong Province Raises Minimum Wage Level,'' China Labor
Watch (Online), 4 December 04.
\35\ Tim Johnson, ``Chinese Factory Workers Begin Protesting Low
Wages, Poor Conditions,'' Monterey Herald, reprinted in Asian Labour
News (Online), 10 September 04.
\36\ Chow Chung-Yan, ``Shenzhen Plans to Raise Minimum Wage to
Solve Labor Shortage,'' South China Morning Post, 5 March 05 (FBIS, 5
March 05).
\37\ One factory manager disclosed that he assigned a team of six
employees to create a fake paper trail. Most foreign companies only see
the fake records, he commented. ``This is the way of surviving,'' he
said. ``This is the way of Chinese factories.'' Lauren Foster and
Alexandra Harney, ``Why Ethical Sourcing Means Show and Tell,''
Financial Times (Online), 22 April 05.
\38\ PRC Labor Law, enacted 5 July 94, arts. 41, 44.
\39\ ``Working Overtime Prevails in China Amid Swelling Wallets,
Complaints,'' Xinhua, 15 May 05 (FBIS, 15 May 05).
\40\ The Chinese now have a name for death from overwork:
``guolaosi,'' similar to the Japanese, ``karoshi.'' There have been
several cases of death in the workplace. A female garment worker in
Guizhou died from what the doctors think was overwork. Her factory had
recently raised working hours from eight to 12 hours per day. Another
female worker died after 12 hour shifts, and a male worker died in a
toy factory because of overwork in the high temperatures. Two other
female workers died from overwork in Shenzhen and Guangzhou. Stephen
Frost, ``Guolaosi: Death by Overwork in China,'' Corporate Social
Responsibility in Asia (Online), 12 November 04; ``12 Hours Per Day
Kills Female Factory Worker in Nanjing,'' Apple Daily, reprinted in
Asian Labour News (Online), 12 November 04.
\41\ ``Steps Requested for Unpaid Salaries and Rights Violations of
Migrant Workers,'' China Daily, 22 October 04 (FBIS, 22 October 04).
\42\ Jane Cai, ``State Council Issues Regulation to Make Employers
Pay Workers a Premium on Delayed Wages,'' South China Morning Post
(Online), 16 November 04.
\43\ ``1,000 Shenzhen Workers Block Road to Protest Against Unfair
Severance Pay,'' Wen Wei Po, 9 January 05 (FBIS, 10 January 05).
\44\ ``Workers in Shenzhen Factory Hold Owners Hostage Over Back
Pay,'' Yahoo! News Asia, reprinted in Asian Labour News (Online), 16
November 04.
\45\ ``Shenyang Migrant Workers Threaten to Jump from Building,''
South China Morning Post (Online), 26 January 05.
\46\ ``Yantai Worker Li Xintao Was Sentenced to Five Years'
Imprisonment,'' China Labor Watch (Online), 15 May 05; and Li Qiang,
``Two Female Workers in Yancheng, Jiangsu Arrested for Opposing `Buy
and Cut' Severance Pay,'' China Labor Watch (Online), 26 October 04.
Ten workers were arrested during a strike at Stella's electronic
factory and were given sentences of up to three and a half years.
Stella's mangers and some overseas NGOs petitioned the judges however,
and sentences were reduced to several months. Neil Gough, ``Trouble on
the Line,'' Time Asia Magazine (Online), 31 January 05.
\47\ Guo Yali, ``Premier's Intervention Should Not Be Necessary,''
China Daily (Online), 23 July 04.
\48\ ``Zeng Peiyan on Clearing Back Pay, Arrears in Construction at
Forum in Tianjin,'' Xinhua, 6 January 05 (FBIS, 6 January 05); ``Steps
Requested for Unpaid Salaries and Rights Violations of Migrant
Workers,'' China Daily, 22 October 04 (FBIS, 22 October 04).
\49\ ``JJRB on Back Pay, Wage Arrears in China's Construction
Sector,'' Economic Daily, 24 September 04 (FBIS, 16 December 04).
\50\ Fu Jing, ``Zeng: Pay All Owed Wages to Migrant Workers,''
China Daily (Online), 24 August 04.
\51\ Wang Yuqi, ``Government Owes 64.28 Billion Yuan in
Construction Project Payment,'' Farmers' Daily, 28 August 04 (FBIS, 1
November 04).
\52\ Ibid.
\53\ ``Trade Unions Help Migrant Workers Get Their Back Pay,''
Xinhua, reprinted in Asian Labour News (Online), 7 January 05.
\54\ ``China Helps Migrant Rural Workers Retrieve 99 Percent of
Defaulted Payments,'' Xinhua, 21 April 05 (FBIS, 21 April 05).
\55\ Shirley Wu, ``PRC Trade Union Says Migrant Workers Owed 100
Billion Yuan in Back-Pay,'' South China Morning Post, 10 June 05 (FBIS,
10 June 05); see also, ``Migrant Laborers Suspect `High Rate of
Repayment' '' [Nongmingong zhiyi ``gao qingqian lu''], Beijing News
(Online), 26 May 05.
\56\ Commission Staff Interview.
\57\ Wu Yixie, ``PRC Officials: Poor Safety Awareness, Equipment
Major Factors in Construction Accidents,'' China Daily, 29 April 04
(FBIS, 29 April 04).
\58\ Xing Zhigang, ``Officials, Experts Criticize `Rampant
Negligence' of Work Safety,'' China Daily, 3 December 04 (FBIS, 3
December 04); ``Workplace Tragedies Continue to Make Headlines,'' China
Labour Bulletin (Online), 22 June 05.
\59\ Liang Zhi, ``China's Third Evil Force: The News Media,'' New
Century Net, translated in Asian Labor News (Online), 12 November 04.
\60\ Robert Marquand, ``New Openness in China Disaster,'' Christian
Science Monitor (Online), 29 November 04; ``China: Media Highlight
Problem in Coal Industry,'' Foreign Broadcast Information Service, 9
May 05 (FBIS, 9 May 05).
\61\ One observer noted that the ``news media coverage in China of
the Sunjiawen mine disaster was excellent.'' Stephen Frost, ``A Sketch
of China's Coal Industry,'' CSR Asia News Weekly (Online), 23 February
05; Xing Zhigang, ``Officials, Experts Criticize `Rampant Negligence'
of Work Safety,'' China Daily, 3 December 04 (FBIS, 3 December 04).
\62\ Fu Jing, ``China to Name Senior Coal Miners as Safety
Inspectors,'' China Daily, 1 June 05 (FBIS, 1 June 05).
\63\ Coal Mine Safety in China: Can the Accident Rate Be Reduced?,
Staff Roundtable of the Congressional-Executive Commission on China, 10
December 04, Oral Testimony of Dave Feickert, consultant in industrial
relations, ergonomics and energy.
\64\ Following the Sunjiawan mine disaster, the vice governor of
Liaoning province received ``a serious demerit'' and the board chairman
and general manager of the mine was stripped of his titles. ``Safety
Agency: Tougher Penalties Needed to Curb China's Fatal Coal Mine
Accidents,'' Xinhua, 5 April 05 (FBIS, 5 April 05). See also, Nailene
Chou Wiest, ``PRC Safety Officials Release Coal Miner Death Figures,
Say Safety Priority,'' South China Morning Post, 6 April 05 (FBIS, 6
April 05).
\65\ ``The Value of Miners' Life-Interviews with an Insurance
Company Manager, Chongqing,'' China Labour Bulletin (Online), 24 July
04.
\66\ U.S. Department of Labor, The U.S. Department of Labor and The
People's Republic of China Sign Four Joint Letters of Understanding, 21
June 04.
\67\ Commission Staff Interview.
\68\ International Labour Office, A Global Alliance Against Forced
Labour, International Labor Conference, 93rd Session 2005.
\69\ Most sources place the number of RETL camps at around 300 and
the number of detainees between 250,000 and 300,000. See, e.g., Randall
Peerenboom, ``Out of the Frying Pan and Into the Fire,'' 98
Northwestern University Law Review 991, 1000-01 and accompanying notes
(2004); Jim Yardley, ``Issue in China: Many in Jails Without Trial,''
New York Times (Online), 9 May 05; Can Siu-sin, ``Critics Take Shine of
Bootcamp Reforms,'' South China Morning Post, 21 March 05. However, a
May 2005 article in Asia Weekly cites Beijing researchers as confirming
that there are at least 1 million people in RETL camps. Chiang Hsun,
``NPC To Replace `Re-education Through Labor System,' Which Has Come
Under Mounting Criticisms, with `Illegal Conduct Correction System' In
Order To Protect Human Rights,'' Asia Weekly, 8 May 05 (FBIS, 4 May
05).
\70\ ``UN Committee Urges Ban On Forced Labour and Allow
Independent Trade Unions,'' China Labour Bulletin (Online), 18 May 05.
\71\ Forced Labor in China, Staff Roundtable of the Congressional-
Executive Commission on China, 22 June 05, Testimony of Harry Wu,
Executive Director of the Laogai Research Foundation.
\72\ Jamil Anderlini ``Banks Buy Into Jail-Labour Firm,'' South
China Morning Post (Online), 17 August 05.
\73\ Forced Labor in China, Testimony of Gregory Xu, Falun Gong
practitioner, and researcher on the treatment of Falun Gong
practitioners in China.
\74\ Bureau of Democracy, Human Rights, and Labor, U.S. Department
of State, 2004 Country Report on Human Rights Practices: China, 28
February 05.
\75\ ``Zhang Fulin Points Out Need to Maintain Correct Direction of
Prison Reform'' [Zhang fulin zhichu: jianyu tizhi gaige yao baochi
zhengque de fangxiang], Ministry of Justice Web site, 27 August 04.
\76\ ``As China's Economy Grows, So Does China's Child Labor
Problem,'' China Labor Bulletin (Online), 10 June 05.
\77\ Yan Liang and Lu Zheng, ``Secret Investigation Into Child
Labor'' [Anfang tonggong], Beijing News (Online), 14 November 04.
\78\ Ching-Ching Ni, ``China's Use of Child Labor Emerges from the
Shadows,'' Los Angeles Times (Online), 13 May 05.
\79\ Regulations on the Specific Scope of State Secrets and the
Level of Secrecy in Labor and Social Security Work [Laodong he shehui
baozhang gongzuo zhong guojia jimi ji qi miji juti fanwei de guiding],
issued 17 January 00, art. 3. For a general discussion on the issue of
state secrets and labor issues, see Human Rights in China and the China
Labor Bulletin (Online), Labor and State Secrets, No. 3, 2004.
\80\ ``Inspection of Labor Guarantee and Rights Protection of Rural
Workers Concludes: 103 Child Laborers Discovered and Returned''
[Mingong laodong baozhang quanyi baohu jiancha jieshu: tonggong qingtui
103 ge], Longhoo Net (Online), 1 July 04; ``2004 Statistical Report on
Jiangsu Province Labor and Social Security Project Development: Legal
Construction and Inspection'' [2004 nian jiangsu sheng laodong he
shehui baozhang shiye fazhan tongji gongbao: fazhi jianshe he jiancha],
China Labor Market (Online), 16 June 05; Wang Li, ``Over One Hundred
Child Laborers Discovered and Returned in Whole Province Last Year''
[Qu nian quan sheng qingtui tonggong bai yu ren], Hebei Daily (Online),
25 May 05.
\81\ Yan Liang and Lu Zheng, ``Secret Investigation into Child
Labor.''
\82\ Huang Runliu, ``Youngsters Sneak Out of Factory to Expose
Child Labour Scandal,'' South China Morning Post (Online), 15 July 05.
\83\ ``Official Survey Finds Around Half of China's Fireworks Are
Sub-Standard and Unsafe,'' China Labour Bulletin (Online), 6 June 05.
\84\ As Robin Munro, research director of China Labor Bulletin,
points out, children who drop out of school tend to enter the workforce
as illegal child workers. Ching-Ching Ni, ``China's Use of Child Labor
Emerges from the Shadows.''
\85\ Chinese anti-child labor law and regulations permit
educational and professional training institutions to organize minors
under the age of 16 to participate in labor for educational or skills-
training purposes as long as such labor does not harm the physical and
mental well-being of the minor. Regulations Banning the Use of Child
Labor [Jinzhi shiyong tonggong guiding], issued 1 December 02, art. 13.
\86\ ``Middle School Sends a Thousand Students to Construct Road:
Punishment For Failing to Complete Assignment Is to Do Clean Up''
[Zhongxue rang qian ming xuesheng bei tu xiu lu, wan bu cheng renwu jiu
fa zuo qingjie], Huaxi Metropolitan Daily, reprinted in Sohu (Online),
25 October 04.
\87\ Wang Ming, ``The Current Developmental Status and Analysis of
Private Schools in the Period of Compulsory Education,'' [Yiwu jiaoyu
jieduan minban xuexiao de fazhan xianzhuang yu fenxi], Research on
Educational Development (Online), September 2003.
\88\ ``Private Schools Organize New Students to Collectively Engage
in Child Labor'' [Minban xuexiao zuzhi xinsheng jiti zuo tonggong],
Beijing News (Online), 15 September 04.
Notes to Section III(d)--Freedom of Religion
\1\ Regulation on Religious Affairs [Zongjiao shiwu tiaoli]
[hereinafter RRA], issued 7 July 04. The RRA is available on the Xinhua
Web site. An English translation is available online on the Web site of
China Elections and Governance, and in Kim-Kwong Chan and Eric R.
Carlson, Religious Freedom in China (Hong Kong: Hong Kong Institute for
Culture, Commerce, and Religion, 2005), 78-89.
\2\ For example, in one county in Anhui province, the local
Religious Affairs Bureau interpreted its duty to manage religious
affairs according to law as a mandate to ``resolve hot issues, . . .
boost the force of management according to law, [and] effectively
protect political and social stability.'' ``Managing Religious Affairs
According to Law in Lingbi County'' [Lingbixian yifa guanli zongjiao
shiwu], Suzhou Municipal Government Web site, 14 June 05. The Bureau
reported that it used a ``heavy inspection'' process to follow up on
problems discovered in annual inspection forms submitted by religious
venues. Then it ``strictly carried out the law'' to address those
problems. First, it handled 30 cases in which the rights and interests
of religious people and entities had been violated. Second, it worked
with the county police to break up illegal activities, including 119
unauthorized meetings (most likely house church meetings). Of these,
the Bureau caused 38 to merge with ``legal'' religious venues, and
banned the other 81. It also seized 21 evangelical preachers,
``educating and reforming'' 16 of them, and putting the other five into
administrative detention. It found 23 centers of ``cult activity.'' Of
the 38 people seized in these centers, the Bureau detained four for
criminal prosecution, put 22 into administrative detention, and
detained four for criminal prosecution.
\3\ Nailene Chou Wiest, ``Religious Groups Get More Room to Move,''
South China Morning Post (Online), 20 October 04.(2283).
\4\ Ibid. (2283)
\5\ Wang Zuoan, ``Establish the Idea of Managing Religious Affairs
According to Law,'' Chinese Religions, 26 February 05 (FBIS, 26
February 05). For existing Chinese laws that can be used to hold
officials accountable for their actions, see, e.g., PRC Administrative
Litigation Law, enacted 4 April 89; PRC State Compensation Law, enacted
12 May 94; PRC Administrative Licensing Law, enacted 12 August 03; PRC
Administrative Punishment Law, enacted 17 March 96; and PRC Law on
Administrative Reconsideration, enacted 29 April 99. All of these laws
except the Administrative Reconsideration Law can be found on the CECC
Web site. The text of the Law on Administrative Reconsideration can be
found on the Ministry of Finance Web site.
\6\ ``Highlights: Report on Ethnic Stability Issues in PRC 31 Dec
2004-17 Mar 2005,'' Foreign Broadcast Information Service, 23 March 05
(FBIS, 23 March 05) (citing the Tibet Daily, 18 January 05). The threat
of hostile infiltration into religious circles from outside China has
long been a preoccupation of Chinese authorities, particularly in areas
with large populations of ethnic minorities. The CCP Central Committee
emphasized this danger in Document No. 6, a 1991 internal document
setting out religious policy. Circular of the Central Committee of the
Chinese Communist Party and the State Council Concerning Several Issues
in Which Religious Work Has Not Been Successful [Zhonggong zhongyang,
Guowuyuan, guanyu jin yi bu zuohao zongjiao gongzuo ruogan wenti de
tongzhi], issued 5 February 91, available at Chinese Religious
Materials Net (Online). An English translation appears in Chinese Law
and Government, Vol. 33, No. 2, 56-63 (March/April 2000).
\7\ ``Highlights: Report on Ethnic Stability Issues in PRC 31 Dec
2004-17 Mar 2005,'' Foreign Broadcast Information Service (citing the
Tibet Daily, 18 January 05). Tibetan authorities also held some follow-
up activities to publicize the contents of the RRA when the regulation
became effective in early March. Ibid.
\8\ ``Highlights: Report on Ethnic Stability Issues in PRC 31 Dec
2004-17 Mar 2005,'' Foreign Broadcast Information Service (citing the
Yunnan Daily, 7 February 05, and the Xinghua Daily, 18 February 05).
\9\ Xiong Fei, ``Henan Party School President Points out Importance
of Religious Affairs,'' Henan Daily, 27 April 05 (FBIS, 12 May 05).
\10\ Ibid. In Jiangsu, Ren Yanshen, Deputy Party Secretary and
Director of the Leading Group on Ethnic and Religious Work, focused
even more sharply on the need to use the RRA to resist foreign
infiltration under the guise of religion. Ren reiterated that Jiangsu
faced a ``new situation'' of this kind of threat from outside.
``Highlights: Report on Ethnic Stability Issues in PRC 31 Dec 2004-17
Mar 2005,'' Foreign Broadcast Information Service (citing Xinhua Daily,
18 February 05). This level of fear in Henan and Jiangsu, possibly
related to local increases in the numbers of Protestant believers in
the two provinces, raises the danger of official and police abuse of
believers.
\11\ See, e.g., the Web sites of the Cardinal Kung Foundation,
Agape Press, Compass Direct, and Voice of the Martyrs.
\12\ RRA, art. 3. Outside observers have pointed out that the vague
nature of the category ``normal religious activities'' makes the RRA
promise of protection meaningless for a believer hoping to get redress
against official abuse. Nicolas Becquelin, ``Reins Tight on Religious
Affairs,'' The Standard (Online), 18 February 05. (7419) Ambiguous
language in the regulations gives officials and police too much
discretion in cracking down on religious believers, whom the Party has
long portrayed as people of questionable loyalty.
\13\ RRA, chap. 5. For a discussion of the implications of the
property provisions of Chapter 5 for the Catholic Church, see Anthony
Lam, ``A Commentary on the Regulations on Religious Affairs'' (as
translated by Michael J. Sloboda), 25 Tripod, No. 136 (Spring, 2005).
Chapter 7 of the 1995 Shanghai Municipal Regulation on Religious
Affairs offered protection for the properties owned or legally used by
religious organizations and venues similar to that provide by the RRA.
Shanghai Municipal Regulation on Religious Affairs [Shanghai shi
zongjiao shiwu tiaoli], issued 30 November 95, amended 21 April 05. The
1995 version of the Shanghai regulation is posted on the Web site of
the United Front Work Department.
\14\ RRA, art. 17.
\15\ Human Rights Watch, ``Asia: State Control of Religion,'' 1997,
17-38. Magda Hornemann of Forum 18 argues that the RRA ensures yet more
intrusive government regulation of religion than provided for under
preexisting law and predicts that believers will continue to peacefully
resist unreasonable interference in their religious activities. Magda
Hornemann, ``How Believers Resist State Religious Policy,'' Forum 18
News Service (Online), 18 January 05, 5687.
\16\ China's New Regulation on Religious Affairs: A Paradigm Shift?
Staff Roundtable of the Congressional-Executive Commission on China, 14
March 05, Testimony of Mickey Spiegel, Senior Researcher, Human Rights
Watch, New York.
\17\ China's New Regulation on Religious Affairs: A Paradigm Shift?
Testimony of Daniel H. Bays, Professor of History, Calvin College.
\18\ China's New Regulation on Religious Affairs: A Paradigm Shift?
Testimony of Carol Lee Hamrin, Consultant and Research Professor,
George Mason University, Fairfax, VA.
\19\ Bernardo Cervellera, ``Not Much New in the New Regulations on
Religion: Interview with Anthony Lam, an Expert on the Church in China
at the Holy Spirit Study Centre,'' AsiaNews (Online), 1 March 05.
(7680)
\20\ Xu Mei, ``China's New Religious Law Promises Little Change,''
Christian News Service (Online), 17 January 05.
\21\ See, e.g., ``Varying Views on the Regulation that Became
Effective on the First of March'' [Points de vue nuances sur le
reglement entre en vigueur le 1er Mars], Zenit (Online), 9 March 05.
(83
\22\ Xu Mei, ``Christians React to New Religious Regulations,''
Compass Direct (Online), 9 March 05; 8924. ``PRC Expert Comments on
China's First National Law on Religious Affairs,'' Wen Wei Po, 1 March
05 (FBIS, 1 March 05);10539. PRC Promotion of Privately Run Schools
Law, enacted 28 December 02 (requiring a strict separation of religion
and education in such privately run schools). Another issue is whether
the absence of a requirement for prior approval by the local branch of
the Patriotic Religious Association (PRA) or the local religious
affairs bureau before registering a religious organization with the
Ministry of Civil Affairs under Article 6 of the RRA is meaningful.
According to Madga Hornemann of Forum 18, many religious organizations,
particularly Protestant Christian ones, have claimed that the approval
of the local branch of the national Patriotic Religious Association,
while not specified in prior regulations, was required before even
approaching the state religious affairs office for registration. Magda
Hornemann, ``Religious Freedom and the Legal System: Continuing
Struggle,'' Forum 18 News Service (Online), 28 April 04. 5474.
\23\ Commission Staff Interview.
\24\ RRA, art. 34. Previous regulations, like the 1995 Shanghai
Municipal Regulation on Religious Affairs, already permitted religious
organizations and venues to undertake commercial activities for self-
support, and also to run activities in the public interest. See, e.g.,
the Shanghai Municipal Regulation on Religious Affairs, art. 11.
<http://www.zytzb.org.cn/> and as amended is available at <http://
www.law-lib.com/law/l>. Article 34 of the RRA adds language providing
for the management and use of the proceeds from such activities. Lauren
Homer, ``Organizing and Funding Non-Worship Activities of Religious
Organizations,'' paper presented at Religion and the Rule of Law:
Comparative Approaches to Regulating Religion and Belief, Conference of
the Chinese Academy of Social Sciences and Institute of World
Religions, Beijing, China, 18-19 October 04.
\25\ RRA, art. 6. The RRA incorporates the Ministry of Civil
Affairs' Regulation on Registration and Management of Social
Organizations to govern the registration of religious organizations in
the same way as some older regulations on religion. See the 1995
version of the Shanghai Municipal Regulation on Religious Affairs, art.
10, <http://www.zytzb.org.cn/>. However, unlike the old Shanghai rule,
the RRA does not specify that religious organizations must first get
approval from the local religious Affairs Bureau, and so could lead to
a less burdensome scheme of regulation. However, Article 7 of the 2005
amendments to the Shanghai Regulation, issued after the promulgation of
the RRA, specifically requires organizations to get such approval
before applying to the local civil affairs bureau. Lauren B. Homer,
``The New Regulation of Religious Affairs in China: A Legal Analysis,''
paper delivered at Fuller Seminars Program, Fuller Seminary, 2 March
05, 15 (manuscript on file with the CECC).
\26\ ``China to Ease Policies on Religion, NGOs,'' United Press
International, reprinted in Washington Times (Online), 20 October 04.
(2300)
\27\ Article 12 of the RRA merely says: ``Collective religious
activities of religious citizens shall generally be conducted on the
premises of registered venues for religious activities (Buddhist
temples, Taoist temples, mosques, churches, and other fixed places of
religious activities)'' (emphasis added).
\28\ Becquelin, ``Reins Tight on Religious Affairs'';(7419) Homer,
``The New Regulation on Religious Affairs in China: A Legal Analysis,''
2; ``Chinese Underground Churches Face Legalization,'' Voice of Germany
Chinese Service, reprinted on Boxun (Online), 20 May 05http://
boxun.com/; ``Varying View on the Regulation that Became Effective on
the First of March,'' Zeni (8344).
\29\ Wiest, ``Religious Groups Get More Room to Move'';(2283). see
generally, Unofficial Religion in China: Beyond the Party's Rules,
Staff Roundtable of the Congressional Executive Commission on China, 23
May 05.
\30\ See ``Religious Freedom for China's Orthodox Christians,''
infra this Section.
\31\ On May 23, 2005, the Commission held a roundtable to discuss
the situation of unofficial religions in China entitled ``Unofficial
Religion in China: Beyond the Party's Rules.'' Professor Robert Weller
drew on the recent experience of Taiwan to show how the state's efforts
to control and repress popular religions failed to eradicate them and
ultimately gave way, after political liberalization in the 1980s, to a
rich combination of religious societies and beliefs. Temple-based
activity, now legal, has fostered community solidarity and the growth
of local civil society. Pietistic groups, no longer repressed, offer
individuals a place to meet and discuss moral and religious issues
based on a variety of spiritual texts. The end of religious control in
Taiwan has allowed the growth of new humanitarian Buddhist societies,
with millions of members worldwide, which have an explicit social
mission of building hospitals, founding universities, bringing aid to
the poor, and providing emergency relief. At this event, a witness
confirmed that there had been rumors that SARA might soon add a
category of ``Popular Religion'' to the authorized list of religions.
\32\ CECC, 2004 Annual Report, 5 October 04, 36-7. See also stories
collected in ``Highlights: China's Religious Affairs, Falungong, Anti-
cult Documents,'' Foreign Broadcast Information Service, 27 September
04 (FBIS, 27 September 04.)
\33\ ``Special Characteristics of Religion and Cults in
Contemporary China,'' Popular Science News (Online), 25 May 05;
``Entire City Finals Held in Speaking Competition on the Topic `Respect
Science; Fight Cults,'' Baoji Daily (Online), 2 June 05.
\34\ His defection was soon followed by that of Hao Fengjun, a
``610'' officer posted to Australia, who brought with him a computer
disk containing hundreds of reports sent by agents in Australia to a
``610'' security office in China. According to a document inspected by
Commission staff that was purported to be a copy of a 610 security
office form, local officials have a number of specific ``610'' duties
involving Falun Gong members. Officials have to fill out periodic
reports on their performance of duties like forming ``610 small
groups'' and entering 610 activities into the work schedule. Officials
who fail to perform such tasks receive a fixed number of demerits on
their annual work evaluation.
\35\ Unofficial Religion in China: Beyond the Party's Rules,
Testimony of Patricia M. Thornton, Associate Professor of Political
Science, Trinity College, Hartford, CT.
\36\ In comparison, the 1994 Regulation Governing Venues for
Religious Activities [Zongjiao huodong changsuo guanli tiaoli], issued
31 January 94, and abrogated on the effective date of the RRA, did not
explicitly refer to social and public interests: ``No person shall be
permitted to make use of any such venue to undertake activities which
harm national unity, ethnic unity, or the social order, harm citizens'
health or obstruct the national educational system.''
\37\ RRA, art. 17: ``Venues for religious activities shall set up
management organizations and practice democratic management. Members of
the management organizations of venues for religious activities shall
be selected through democratic consultations and reported as a matter
of record to the registration management organs for the venues.'' (In a
Tibetan monastery or nunnery, a DMC is generally made up of monks or
nuns elected from among themselves. Candidates are sometimes screened
by local officials, according to some reports.)
\38\ Commission Staff Interviews.
\39\ ``The Sixth Training Class for Temple Administrative Committee
Directors in Tibet Concludes,'' China's Tibet, 31 May 05 (FBIS, 1 June
05).
\40\ Commission Staff Interviews.
\41\ Commission Staff Interviews.
\42\ The Gelug is the largest of several traditions of Tibetan
Buddhism that are currently practiced. The Dalai Lama and Panchen Lama
are the most revered spiritual teachers of the Gelug. Tibetan Buddhist
followers of other traditions, such as the Kargyu, Sakya, Kadam,
Jonang, and Nyingma, also revere the Dalai Lama. The Dalai Lama served
as the head of the Lhasa-based Tibetan government until 1959, when he
fled into exile along with most of the Tibetan government. The Chinese
government continues to subject Gelug monasteries to heightened levels
of suspicion and control because of the Dalai Lama's close association
with the Tibetan government-in-exile.
\43\ Commission Staff Interviews.
\44\ Commission Staff Interviews.
\45\ Based on data available in the PPD in June 2005, there were
121 Tibetan political prisoners known or believed to be currently
imprisoned. Sixty-seven were held in the TAR, 38 in Sichuan province,
13 in Qinghai province, and three in an unknown location. As of June
2005, of the 42 Tibetan political prisoners known to have been detained
from 2002 onward, and known or believed to remain imprisoned, 27 were
held in Sichuan province, eight in Qinghai province, and seven in the
TAR.
\46\ Commission Staff Interviews. Official permission to travel to
India is almost never granted, according to experts.
\47\ Liu Yuxiang and Wu Kun, ``Analysis on Threats of Violent Acts
of Terror Presently Facing Sichuan Province,'' Policing Studies, No. 2,
10 February 04 (FBIS, 17 May 04).
\48\ ``The Execution of Lobsang Dondrub and the Case Against Tenzin
Deleg: The Law, the Courts, and the Debate on Legality,'' Topic Paper
of the Congressional-Executive Commission on China, February 2003. In
December 2002, the Ganzi Intermediate People's Court sentenced Tenzin
Deleg, a popular religious leader in Ganzi, TAP, to death with a two-
year reprieve for endangering state security by writing separatist
leaflets and causing explosions. No details about the evidence have
ever been made public and NGOs allege that he was framed because of his
popularity. Officials accused his co-defendant, Lobsang Dondrub, of
setting off the explosions and scattering the leaflets, and Tenzin
Deleg of being a conspirator. Lobsang Dondrub was sentenced to death in
December 2002 and executed on January 26, 2003. Media and NGO reports
allege that he was tortured into confessing.
\49\ The phrase, ``dismissed after the reorganization of
monasteries,'' refers mainly to monks who were expelled from
monasteries, or fled them, during an intense campaign of Patriotic
Education conducted throughout Tibetan areas from 1996-2000.
Authorities traveled to every Tibetan monastery and nunnery and led
mandatory classes on Party-sanctioned positions on religion, the Dalai
Lama, and Tibetan history. Upon completion of the course, monks and
nuns had to pass examinations and then sign or fingerprint a statement
denouncing the Dalai Lama, accepting the legitimacy of the Panchen Lama
enthroned by China, and endorsing China's account of Tibetan history.
According to unofficial estimates, several thousand monks and nuns gave
up their seats rather than accept the Party's demands.
\50\ Criminal Verdict of the Sichuan Province Ganzi Tibetan
Minority Autonomous Prefecture Intermediate People's Court, 2000, Ganzi
Intermediate Court Verdict No. 11, reprinted in Selection of Cases from
the Criminal Law, The Dui Hua Foundation, August 2003, 42-55. The
translation of the official sentencing document shows that the court
agreed that Sonam Phuntsog had not explicitly called for ``Tibetan
independence,'' but nonetheless sentenced him for inciting splittism
because he ``incited the masses to believe in the Dalai Lama.''
\51\ State Council Information Office, ``White Paper on Freedom of
Religious Belief in China,'' Xinhua, 16 Oct 97 (FBIS, 16 Oct 97).
``[T]he approval of the reincarnation of the Grand Living Buddhas by
the central government is a religious ritual and historical convention
of Tibetan Buddhism, and is the key to safeguarding the normal order of
Tibetan Buddhism.''
\52\ ``President Hu Meets 11th Panchen Lama,'' Xinhua (Online), 3
February 05.
\53\ Commission Staff Interviews.
\54\ In the late 1950s, the Chinese government organized the
Catholic Patriotic Association (CPA), gave it control of all Church
property, and convinced a small group of bishops and priests to
proclaim their independence from the Holy See and subordinate
themselves to the CPA. Since that time, the government has worked to
persuade and coerce Catholic clergy and laity to do the same. The
majority have refused to do so and have gone ``underground,'' where,
persisting in their fidelity to the Holy See, they have refused to
attend Masses offered by priests who accept the authority of the CPA.
Today there are more than 8 million unregistered and 4 million
registered Catholics in China. On the situation of the Catholic Church
in China today, see, Betty Ann Maheu, MM, ``The Catholic Church in
China: Journey of Faith. An Update on the Catholic Church in China:
2005,'' paper delivered at the 21st National Catholic China Conference,
24 June 05, Seattle, WA, U.S. Catholic China Bureau (Online); Han
Fengxia, ``Growth of Christianity in China: Perspective of a Woman
Religious of the Liaoning Diocese,'' address delivered at the 21st
National Catholic China Conference in Seattle, WA, 26 June 05
(available at the Web site of the U.S. Catholic China Bureau).
\55\ Commission Staff Interview. Igor Rotar, ``Xinjiang: Controls
Tighten on Muslims and Catholics,'' Forum 18 News Service (Online) 29
September 05; Xing Guofang, ``A New Wave of Persecution Against Hebei
Catholics,'' AsiaNews (Online), 27 September 05.
\56\ Commission Staff Interviews. ``Classes Begin at New Sichuan
Seminary Campus Amid Concerns Over Standard of Teaching,'' Union of
Catholic Asian News (Online), 30 September 05.
\57\ ``Prisoners of Religious Conscience for the Underground Roman
Catholic Church in China,'' Cardinal Kung Foundation (Online), 31 July
05.
\58\ Commission Staff Interviews. For the detentions reported in
the past 12 months, see, ``Underground Roman Catholic Bishop Arrested
in China,'' Cardinal Kung Foundation (Online), 6 January 05; ``Arrest
of an Underground Roman Catholic Priest,'' Cardinal Kung Foundation
(Online), 30 January 05; Arrest of an Underground Roman Catholic Bishop
and a Priest; Reflection on the Pope's Passing From the Underground
Roman Catholic Church,'' Cardinal Kung Foundation (Online), 3 April 05;
``Arrest of Seven Underground Roman Catholic Priests in China,''
Cardinal Kung Foundation (Online), 27 April 05; ``Police Disperse
`Underground' Catholic Retreat, Send Priests Home,'' Union of Catholic
Asian News [hereinafter UCAN] (Online), 9 June 05 (undetermined number
of priests detained for a short period); ``Underground Roman Catholic
Bishop Arrested Again in China,'' Cardinal Kung Foundation (Online), 4
July 05; ``Underground Roman Catholic Priest and His Parishioners
Beaten and Arrested in China,'' Cardinal Kung Foundation (Online), 28
July 05. Bishop Jia Zhiguo was detained in September (twice) and
December of 2004, and in January and July of 2005. ``Bishop Julius Jia
Zhiguo Arrested,'' AsiaNews (Online), 5 July 05. For the release of
Catholic prisoners of religious conscience, see ``Release of an
Underground Roman Catholic Priest,'' Cardinal Kung Foundation (Online),
5 June 05 (release of Zhao Kexun after two months of detention);
``Chine: Liberation d'un pretre clandestin emprisone en 1999. Une
nouvelle saluee par Radio Vatican,'' Zenit (Online), 4 July 05 (release
of Kong Guocun after nearly six years of detention); ``Bishop Julius
Jia Zhiguo Released in Hebei,'' AsiaNews (Online), 22 July 05.
Regarding a letter sent by unregistered Catholics to a Catholic news
agency abroad to protest a ``wave of violence'' unleashed in Gao Cheng
county, Hebei province, see, Wang Hui, ``Persecution in Hebei, a
Liability for Hu Jintao's Plans,'' AsiaNews (Online), 8 June 05; Magda
Hornemann, ``Is Central or Local Government Responsible for Religious
Freedom Violations? '' Forum 18 News Service (Online), 2 August 05;
``Underground Roman Catholic Priest and a Recently Graduated Seminarian
Arrested in China,'' Cardinal Kung Foundation (Online), 4 September 05.
Regarding a foreign Web site blocked in China after it published an
article critical of China's human rights record vis-a-vis Catholics,
see, Sandro Magister, ``Riconoscimenti. In Cina, www.chiesa entra nel
club degli oscurati,'' L'espresso (Online), 25 July 05.
\59\ Commission Staff Interview; ``Underground Bishop of Roman
Catholic Church in China `Lost' for More Than 6 Years Found Very Ill in
Government Detention,'' Cardinal Kung Foundation (Online), 19 November
03.
\60\ Commission Staff Interviews; ``China to Defy Rome With New
Bishops? '' Catholic World News (Online), 14 March 05; ``China: State
Attempts to Control Religious Leaderships,'' Forum 18 News Service
(Online), 15 June 05.
\61\ ``Vatican Confirms Informal Dealings With China,'' Catholic
World News (Online), 30 June 05.
\62\ Regarding the ordination of Xing Wenzhi in Shanghai, see ``New
Shanghai Bishop: `Serving the Community Against the Spread of
Secularization,' '' AsiaNews (Online), 29 June 05; ``Choice of Bishop
Positive Step Toward Vatican Ties,'' South China Morning Post, 30 June
05 (FBIS, 30 June 05) (Bishop Xing announced during a ceremony that he
had been nominated by the Holy See); ``Further On China Says Vatican
Did Not Approve Appointment of Shanghai Bishop,'' Agence France-Presse,
29 June 05 (FBIS, 29 June 05) (denial issued by Shanghai Religious
Affairs Bureau); ``Vatican Confirms Informal Dealings with China,''
Catholic World News (Online), 30 June 05; ``Ordination of a Patriotic
Association Bishop in Shanghai,'' Online Newsletter, Cardinal Kung
Foundation (Online), 1 July 05 (points out that the Holy See has not
issued an official statement); Gianni Valente, ``Anche a Shanghai c'e
qualcosa di nuovo,'' Trenta Giorni (Online), 1 August 05. Regarding the
ordination of Dang Mingyan in Xi'an, see ``The Vatican Recognizes New
Appointment in the Xi'an Diocese,'' Wen Wei Po, 29 July 05 (FBIS, 30
July 05) (CPA official claims that bishop was appointed in accordance
with procedures of ``Chinese Catholic Church,'' that the Vatican had
recognized a bishop ``elected in China,'' which is ``an improvement and
is favorable to moving Sino-Vatican relations forward''); ``China und
Heiliger Stuhl einigen sich erneut auf Bischof,'' Kath.net (Online), 1
August 05.
\63\ ``Shanghai Bishop Seeks to Heal Division,'' Washington Post
(Online), 23 June 05 (registered Bishop Jin: ``Rome said that after the
death of the underground church bishop, no more division.''); ``China:
The Government and the Holy See Ordain a Bishop Jointly for the First
Time,'' AsiaNews (Online), 28 June 05.
\64\ Betty Ann Maheu, MM, ``The Catholic Church in China: Journey
of Faith. An Update on the Catholic Church in China: 2005''; Sandro
Magister, ``Nuovi vescovi per la Cina di domani,'' L'espresso (Online),
16 August 05; Sandro Magister, ``La Cina ha un nuovo record: i piu
giovani vescovi del mondo,'' Settimo Cielo (Online), 17 August 05.
\65\ Commission Staff Interviews; ``Vocation-rich Zhouzhi Diocese
Faces Uncertainty After Bishop Dies,'' UCAN (Online), 28 September 04;
``Mgr Paul Su Yongda, New Bishop of Zhanjiang,'' AsiaNews (Online), 15
November 04; ``Bishop of Datong Dies at 87, Leaving Management of
Diocese to Young Priests,'' UCAN (Online), 12 January 05; Wang Xixian
``Octogenarian Bishop Dies in Eastern China, Leaves Anhui Province
`Vacant,' '' UCAN (Online), 18 March 05; ``Bishop of Tianjin Dies
Without Reconciling With `Underground' Prelates,'' UCAN (Online), 18
March 05; ``Bishop Giuseppe Zhu Huayu the Only Bishop in Anhui Province
Dies at the Age of 88,'' Agenzia Fides (Online), 19 April 05; ``Body of
Chinese Catholic Leader Cremated,'' Xinhua (Online), 28 April 05 (FBIS,
28 April 05); ``China: The Government and Holy See Ordain a Bishop
Jointly for the First Time,'' AsiaNews; ``Franciscan Doctor-Bishop of
Yichang Dies at Age 88,'' AsiaNews/ UCAN (Online), 26 July 05; ``Open
Church Bishop of Mindong Dies, Underground Bishop Seriously Ill,'' UCAN
(Online), 11 August 05; ``Death of Two Bishops: Bishop Thomas Zhao
Fengwu, A Life of Poverty and Penance, and Bishop James Xie Shiguang,
Who Spent 30 Years in Prison,'' Agenzia Fides (Online), 30 August 05.
\66\ Commission Staff Interviews.
\67\ Adam Minter, ``The Sisters of Shanghai: A Congregation of Nuns
Flourishes in China,'' Commonweal (Online), 12 August 05; ``Xi'an
Seminary Offers Educational Program for Women Religious,'' UCAN
(Online), 23 September 04; ``Shaanxi Sisters Pursue Studies in Social
Work,'' UCAN (Online), 2 November 04; ``More Than `Half the Sky,' ''
Hong Kong Sunday Examiner (Online), 17 July 05; Betty Ann Maheu, MM,
``The Catholic Church in China: Journey of Faith. An Update on the
Catholic Church in China: 2005''; ``Seminary College's First Symposium
With Mainland Scholars Inspires Priests,'' Union of Catholic Asian News
(Online), 26 August 05; ``Chine: les religieuses ameliorent leur
formation,'' Zenit (Online), 7 October 04; ``Precious Contribution
Offered by the Prado Institute for the Formation of Priests and
Religious in China Underlined During a Recent Visit by Superior General
Rev. Robert Daviaud,'' Agenzia Fides (Online), 12 July 05; ``Formation,
Evangelization, Self-Support, Pastoral Care to Meet Needs of Today:
Commitments of Bishop Anthony Li Du An of the Diocese of Xi'an,''
Agenzia Fides (Online), 27 July 05; Bernardo Cervellera, ``Chinese
Priest: We Need Help to Form Priests in the Official Church,'' AsiaNews
(Online), 8 August 05. For a rare report on the formation of clergy for
the unregistered Catholic community in China, see ``Meeting With
Underground Religious in Rome,'' Online Newsletter, Cardinal Kung
Foundation (Online), 1 July 05.
\68\ ``Nuns Serving Mentally Challenged Children Help Change Social
Attitudes,'' UCAN (Online), 2 September 04; ``Liaoning Diocese Goes
Full Throttle With Its New HIV/AIDS Ministry,'' UCAN (Online), 9
September 04; ``Nuns Care for Mentally Challenged Children in Xi'an,''
UCAN/AsiaNews (Online), 11 February 05; ``Interreligious Conference
Affirms Religions' Contribution To Ethics, Morality,'' UCAN (Online), 9
March 05.
\69\ Commission Staff Interview.
\70\ ``Guidelines on China from the Vatican,'' Cardinal Kung
Foundation (Online).
\71\ ``Breakthrough in Vatican-China Ties? '' Reuters (Online), 19
August 05 (senior European Catholic prelate speculates on coming
``breakthrough'' in diplomatic relations); Ramon Pedrosa, ``Beijing and
the Vatican Edge Closer,'' International Herald Tribune (Online), 18
August 05; Sandro Magister, ``Nuovi vescovi per la Cina di domani'';
``Pope Benedict Reaches Out to China,'' Associated Press (Online), 12
May 05; John L. Allen, ``The Word From Rome,'' National Catholic
Reporter (Online), 13 May 05; Lucia Pozzi, `` `Pechino dice si al
dialogo con il Papa'; Intervista a Dong Jinyi, ambasciatore cinese a
Roma. `Cosi cambia il mio Paese,' '' Il Messaggero (Online), 14 May 05;
``Pope Reaches Out to Non-Catholics and China During First Month,''
Associated Press (Online), 18 May 05; Elisabeth Rosenthal, ``Hints of
Thaw Between China and Vatican,'' International Herald Tribune
(Online), 22 May 05; Joe McDonald, ``Beijing, Vatican Express
Enthusiasm for Ties, But Church's Role Remains a Stumbling Block,''
Associated Press (Online), 29 May 05; ``Hong Kong Bishop: Vatican
`Anxious' for Diplomatic Ties with Beijing,'' Catholic World News
(Online), 14 June 05; Nailene Chou Wiest, ``Beijing Paving Way to Renew
Vatican Links,'' South China Morning Post (Online), 15 June 05 (FBIS,
15 June 05); ``Vatican Expresses Desire for Ties With China, but
Stresses Religious Freedom,'' Associated Press (Online), 17 June 05;
``Religious Freedom the Key, Says Vatican as It Seeks Ties,'' South
China Morning Post (Online), 18 June 05; ``Vatican Official Optimistic
About Relations With China, Archbishop Lajolo Upbeat After Asian
Trip,'' Zenit (Online), 23 June 05; ``Bishop Calls for China, Vatican
Compromise,'' Associated Press (Online), 23 June 05 (referring to
Bishop Jin); ``China and Vatican Make No Secret of Thaw,'' Los Angeles
Times (Online), 25 June 05; ``Report: Chinese Catholic Official Says
Vatican and China Will Establish Ties,'' Associated Press (Online), 27
June 05 (referring to Anthony Liu Bainian); Minnie Chan, ``Vatican Ties
Closer With New Bishop,'' South China Morning Post, 30 June 05 (FBIS,
30 June 05) (referring to bishop Xing and reporting that the Chinese
government sets up an intergovernmental working group on religious
affairs to discuss potential relations with the Holy See); Wei Wu,
``China's Religious Official on Prerequisite to Better China-Vatican
Ties,'' Xinhua (Online), 1 July 05 (referring to spokeswoman for SARA);
Gerard O'Connell, ``China Reportedly Wants `to Change its Relations'
With the Holy See,'' UCAN (Online), 22 July 05; Vatican Information
Service Press Release, 25 July 05; Bernardo Cervellera, ``Chinese
Priests Visit the Pope: an `Unexpected Gift'; a Sign of `Union With the
Holy See,' '' AsiaNews (Online), 4 August 05; Wu Yung-chiang, ``The
Pope Meets With Chinese Priests; Foreign Ministry Makes No Comment on
This,'' Ta Kung Pao, 4 August 05 (FBIS, 5 August 05); ``Chinese Youths
Visit the Pope Before Heading for World Youth Day,'' AsiaNews (Online),
10 August 05; ``Catholics Regret Over Vatican Decision,'' China Daily
(Online), 12 September 05; ``China Rebuffs New Vatican Call to Send
Bishops,'' South China Morning Post (Online), 13 September 05;
``Negotiations Still on for Chinese Bishops' Rome Visit,'' AsiaNews
(Online), 16 September 05; Gerard O'Connell, ``Four Mainland China
Prelates Absent as Pope Opens Synod of Bishops,'' Union of Catholic
Asian News (Online), 3 October 05; Bernardo Cervellera, ``Beijing's No
to Bishops Shatters Illusion That Things Have Changed for the Better,''
AsiaNews (Online), 1 October 05. On the fundamental factors influencing
Sino-Holy See relations in recent years, see, Beatrice Leung, ``Sino-
Vatican Relations at the Century's Turn,'' Journal of Contemporary
China, Vol. 14, No. 43 (May 2005), 353-370.
\72\ ``Committee to Spread True Koran,'' China Daily (Online), 24
April 02; ``PRC: Qinghai Enhances Religious Work to Guard Against
Separatist Infiltration,'' Qinghai Daily, 8 September 04 (FBIS, 11
January 05).
\73\ Provinces have launched separate campaigns at various times
since 2000. For discussion of Qinghai's campaign, launched in April
2004, see ``PRC: Qinghai Enhances Religious Work to Guard Against
Separatist Infiltration,'' Qinghai Daily.
\74\ Ma Pinyan, ``The Implementation of the Party's Religious
Policy in Xinjiang'' [Dang de zongjiao zhengce zai xinjiang de
shixian], Xinjiang Social Sciences, No. 1, 2005, 49-55.
\75\ ``PRC: Qinghai Enhances Religious Work to Guard Against
Separatist Infiltration,'' Qinghai Daily.
\76\ ``Sichuan Guangyuan Sacred Mosque Becomes A Bar!'' Bulletin
Board Post, Crescent Review (Online), 21 June 04. A mosque in Gansu
province opened a slaughterhouse to ``ease the burden on its
believers.'' ``Linxia Hui Autonomous Prefecture's Ethnic Unity and
Advancement Campaign Activities,'' Gansu Daily, 15 June 05 (Online).
\77\ RRA, arts. 35 and 36.
\78\ Hui girls in Shujinwan village in northern Yunnan, for
example, take Chinese, Arabic, and religious classes in a school run by
a local ahong. Elisabeth Alles, ``Muslim Religious Education in
China,'' 45 Perspectives Chinoises (January-February 2003) (Online).
\79\ ``Top Ten Islamic News Stories of 2003'' [2003 zhongguo
yisilin shida xinwen], Islamic Crescent Web site, 15 January 05. Nankai
University, located in the coastal city of Tianjin, sent ``patriotic
education'' volunteers to the school less than a year after its
establishment. ``Nankai University Students Set Up A Base in Gansu''
[Nankai zai Gansu shili daxuesheng shixian jidi], Current Trends
(Online), 7 September 04.
\80\ ``PRC: Qinghai Enhances Religious Work to Guard Against
Separatist Infiltration,'' Qinghai Daily.
\81\ Though estimates vary widely, there are an estimated 40,000
mosques in China. Elisabeth Alles, ``Muslim Religious Education in
China.''
\82\ Ibid.
\83\ Human Rights Watch, ``China: Human Rights Concerns in
Xinjiang,'' October 2001. An article in the Party's main theoretical
journal warned the leadership not to ``underestimate the threat to
society that splittism and illegal religious activities pose.'' The
author of the article proposed attacking the ``root of the problem'' by
refusing to ``loosen controls over religion.'' He Ruixia, ``Political
Thought Work In the Course of Strengthening and Improving the Struggle
Against Nationality Splittism'' [Jiaqiang he gaijin fandui minzu
fenliezhuyi douzhengzhong de sixiang zhengshi gongzuo], Seeking Truth,
No. 2, 2004, 23. A 2002 report by the Hetian Party Committee found that
``religion, illegal religious activities and extremist religious
thought have severely influenced, disturbed and infiltrated society and
villages.'' ``Separatists Alleged to Have Infiltrated Xinjiang
Schools,'' Agence France-Presse, 31 January 02 (FBIS, 31 January 02).
\84\ Practicing Islam in Today's China: Differing Realities for the
Uighurs and the Hui, Staff Roundtable of the Congressional-Executive
Commission on China, 17 May 04, Testimony of Kahar Barat, Lecturer in
Near Eastern Languages and Civilizations, Yale University; Human Rights
Watch, Devastating Blows: Religious Repression of Uighurs in Xinjiang,
April 2005.
\85\ Ma Pinyan, ``The Implementation of the Party's Religious
Policy in Xinjiang'' [Dang de zongjiao zhengce zai xinjiang de
shixian], Xinjiang Social Sciences, No. 1, 2005, 52.
\86\ Wang Lequan, ``Maintain the Dominant Position of Marxism in
Ideological Work and Adhere to the Four Cardinal Principals,'' Seeking
Truth, No. 2, 2005.
\87\ He Ruixia, ``Political Thought Work In the Course of
Strengthening and Improving the Struggle Against Nationality
Splittism''; Ma Pinyan, ``The Implementation of the Party's Religious
Policy in Xinjiang.''
\88\ Human Rights Watch, Devastating Blows: Religious Repression of
Uighurs in Xinjiang, 14-20; Gardner Bovingdon, Autonomy in Xinjiang:
Han Nationalist Imperatives and Uyghur Discontent (Washington: East-
West Center Washington, 2004).
\89\ Human Rights Watch, Devastating Blows: Religious Repression of
Uighurs in Xinjiang, 31.
\90\ ``Record of the Meeting of the Standing Committee of the
Political Bureau of the Chinese Communist Party Concerning the
Maintenance of Stability in Xinjiang (Document 7),'' reproduced in
Human Rights Watch, China: State Control of Religion, Update #1
(Online), 13 March 98.
\91\ The Chinese government carefully guards the precise number of
arrests made during the campaign, but one Uighur emigre group with
detailed records on the arrests reports that 2,200 were arrested in the
single prefecture of Khotan from April to July alone. World Uighur
Network News, 16 July 96, in Michael Dillon, Xinjiang--China's Muslim
Far Northwest (London: Routledge, 2004), 86. Xinjiang's chair of the
United National Revolutionary Front reportedly claimed that 10,000 were
arrested in Aksu and 8,000 in Urumqi, though the Chinese government
later denied those figures. Urumqi radio announced on July 8th that 400
had been arrested and 3,700 families had been required to sign written
pledges not to participate in any further anti-party activities.
Michael Dillon, Xinjiang--China's Muslim Far Northwest, 87-88.
\92\ The restrictions on religious practice led to widespread
resentment among the Uighurs that culminated in protests at Yining
(Ghulja) in February 1997. Although reports differ on exactly what
sparked the clash between Uighurs and Chinese security forces,
eyewitnesses and official reports confirm that People's Armed Police
shot a number of unarmed demonstrators and security forces arrested
hundreds of Uighurs for their participation in the protests demanding
religious freedom and rights enshrined in the 1984 Regional Ethnic
Autonomy Law. Human Rights Watch, Devastating Blows: Religious
Repression of Uighurs in Xinjiang, 15; Michael Dillon, Xinjiang--
China's Muslim Far Northwest, 92-99; Amnesty International, ``People's
Republic of China: China's Anti-terrorism Legislation and Repression in
the Xinjiang Uighur Autonomous Region,'' 2002.
\93\ These courses entail study of state-approved religious
interpretations, review of ``the correct relationship between religion
and socialist society,'' and sessions in which imams publicly criticize
their own political views as well as those of fellow imams.
\94\ Draft Amendments to the Xinjiang Uighur Autonomous Region
Regulations on the Management of Religious Affairs Adopted by the 23rd
Session of the Standing Committee of the 9th People's Congress of
Xinjiang Uighur Autonomous Region [Xinjiang weiwuer zizhiqu dongjiao
shiwu guanli tiaoli xiugai zheng an (caoan)], submitted 16 July 01,
art. 9.
\95\ ``China Bans Islamic Group in Xinjiang, Arrests 179,'' Agence
France-Presse, 19 August 05 (FBIS, 19 August 05); ``Teacher and 37
Students Detained for Reading Koran in China,'' Agence France-Presse,
15 August 05 (FBIS 16 August 05).
\96\ Human Rights Watch, Devastating Blows: Religious Repression of
Uighurs in Xinjiang, April 2005, 46, note 91.
\97\ ``Ministry of Foreign Affairs Spokesman Liu Jianchao Answers
Reporters Questions,'' Ministry of Foreign Affairs Web site, 3 March
05.
\98\ Xinjiang Implementation Measures on the Law on the Protection
of Minors [Xinjinag weiwuer zizhiqu shishi `wei chengnianren baohu fa'
banfa], issued 25 September 93; Ma Pinyan, ``The Implementation of the
Party's Religious Policy in Xinjiang'' [Dang de zongjiao zhengce zai
xinjiang de shixian], Xinjiang Social Sciences, No. 1, 2005, 53.
\99\ ``China Cracks Down on Its Muslims,'' Agence France-Presse, 23
November 01 (FBIS, 23 November 01).
\100\ The 2000 Urumqi Yearbook [Wulumuqi nianjian] (Urumqi:
Xinjiang People's Press, 2001), 250-1. This volume notes that Yili
prefectural officials had closed 70 ``illegal constructions or
renovations of religious sites'' between 1995 and 1999 in their
prefecture alone.
\101\ A specific requirement that any publication ``related to the
research and appraisal of Islamic religion'' be submitted to national-
level authorities before publication also contravenes the 1984 Regional
Ethnic Autonomy Law. This requirement is listed in a 2000 ``Manual for
Municipality Ethnic Religious Work'' edited by the Ethnic Religious
Work Committee of the Urumqi Nationality Religious Affairs Bureau Work
Committee. Cited in Human Rights Watch, Devastating Blows: Religious
Repression of Uighurs in Xinjiang, 48.
\102\ Including the Universal Declaration of Human Rights,
International Covenant for Civil and Political Rights, The Convention
on the Rights of the Child, and The Convention Against Discrimination
in Education.
\103\ Human Rights Watch, Devastating Blows: Religious Repression
of Uighurs in Xinjiang, 8.
\104\ The Russian Orthodox Church claims that there are about 12 to
15 thousand Chinese Orthodox, most of them Chinese citizens of Russian
or mixed-Russian descent. Most of them are located in northern China,
Beijing, or Shanghai. Though there has never been an autocephalous
Chinese Orthodox Church, in the 1950s an autonomous Chinese Orthodox
Church was formed under the Moscow Patriarchate. Both of its Chinese
bishops died during the Cultural Revolution. ``Keeping the Faith,''
South China Morning Post (Online), 28 March 05; ``About Orthodoxy in
China: Interview with Archpriest Nikolai Balashov,'' RIA Novosti
(Online), 13 October 04; ``Toward a Rebirth of the Orthodox Church in
China. Interview with Mitrophan Chin,'' Religioscope (Online), 23
October 04.
\105\ Commission Staff Interview; Li Fangchao, ``Harbin Talks of
Rebuilding Church,'' China Daily (Online), 5 September 05; ``Orthodox
Church Asks China for Official Recognition to Enhance Activities,''
UCAN (Online), 24 June 04; ``Tiny Chinese Orthodox Church Seeks
Recognition,'' Telegraph (Online), 3 January 04; ``Beijing Is Sending
Positive Signals to Orthodox Church,'' Taipei Times (Online), 21
October 04; Igor Rotar, ``Xinjiang: No Children in Church, Catholics
Told,'' Forum 18 News Service (Online); Igor Rotar, ``Xinjiang: Linked
Religious Practice and State Control Levels? '' Forum 18 News Service
(Online). Though local authorities have registered Orthodox communities
in some areas, in others they have refused. In December 2003, Chinese
officials briefly detained a Russian Orthodox priest from Kazakhstan
who was providing pastoral care to Orthodox Christian believers in
Yining (Ghulja), Xinjiang. Igor Rotar, ``Security Service Investigation
Followed Orthodox Priest's Deportation,'' Forum 18 News Service
(Online).
\106\ Commission Staff Interview; ``Something New But Mostly the
Same Old Rules on Religion,'' AsiaNews (Online), 12 January 05;
``Priest Dionisy Pozdnyaev Comments on the `Regulation on Religious
Affairs' Adopted in the PRC,'' Orthodoxy in China (Online), 24 December
04.
\107\ Commission Staff Interview; ``Beijing's Orthodox Community
Has First Paschal Liturgy Since 1957,'' Orthodoxy in China (Online), 3
May 05; ``Eye on Eurasia: Russia's Church in China,'' United Press
International (Online), 27 October 04; Geraldine Fagan, ``Will Orthodox
Christians Soon Be Allowed Priests? '' Forum 18 News Service (Online),
22 September 04; ``Shanghai News Spokesperson Explains Closure of
Dining Hall Managed by Taiwan Businessman,'' Orthodoxy in China
(Online), 13 January 05; ``A Verbatim Record of Vladimir Putin's
Meeting With Participants in the Bishops' Council of the Russian
Orthodox Church,'' Orthodoxy in China (Online), 8 October 04; ``Report
of the Chairman of the Department of External Church Relations of the
Moscow Patriarchate, Metropolitan Kirill of Smolensk, to the Bishops'
Council of the Russian Orthodox Church (October 3-8, 2004), on External
Church Activity, Care of the Diaspora of the Russian Orthodox Church,''
Orthodoxy in China (Online), 4 October 04; ``China Visit of Russian
Orthodox Church Delegation Comes to an End,'' Orthodoxy in China
(Online), 26 October 04; ``Entertainment Institutions to Be Ejected
From Former Orthodox Churches in Shanghai,'' Orthodoxy in China
(Online), 20 July 04; ``China's Ambassador Gave Dinner Honoring
Chairman of Department of External Church Relations Moscow
Patriarchate,'' Orthodoxy in China (Online), 13 July 04; Igor Rotar,
``Xinjiang: Controls Tighten on Muslims and Catholics,'' Forum 18 News
Service (Online), 29 September 05; (``One Orthodox source told Forum 18
that four Chinese citizens have now completed training at Orthodox
seminaries in Russia and are ready for ordination, but so far the
Chinese authorities had not given them permission to work in China as
priests.'')
\108\ Sandro Magister, ``Lo strano ritiro spirituale di Jiang Zemin
e compagni,'' L'espresso (Online), 14 January 04.
\109\ Bernardo Cervellera, ``New Regulations for Controlling
Religions,'' AsiaNews (Online), 20 December 04; Lauren B. Homer, ``The
New Regulation on Religious Affairs in China: A Legal Analysis,'' 12.
\110\ Commission Staff Interview.
\111\ Commission Staff Interview; ``Five American Church Leaders
Arrested in Henan; Female House Church Evangelists Tortured and Abused
in Xinjiang and Hubei; Secret Documents Show Chinese Government's
Campaign Against Religious Cults,'' China Aid Association (Online), 17
August 05; ``American Tourists Mistreated; Arrested House Church
Pastors Tortured in Prison; Shanghai House Church Faces Forced
Closure,'' China Aid Association (Online), 8 August 05; ``Wave of
Arrests Submerges Hope in New Regulations,'' Compass Direct (Online),
20 July 05 (reporting several detentions of small groups that went
unreported elsewhere); ``Nationwide Crackdown on House Churches in
China; Numerous Leaders Arrested; Renown Beijing Church Leader Trial
Delayed Again,'' China Aid Association (Online), 29 June 05; ``Massive,
Coordinated Crackdown on House Church Christians in China's Jilin
Province,'' China Aid Association (Online), 9 June 05; ``American
Church Leaders Deported; Beijing House Church Pastor Tortured in
Prison,'' China Aid Association (Online), 2 March 05. Regarding the
mass arrests of recent months, see ``One Hundred House Churches Raided
in China,'' Voice of the Martyrs Canada (Online), 15 June 05 (Voice of
the Martyrs has ``received a copy of an official Chinese government
document outlining a new offensive on underground house churches'').
Most analysts believe that rural Christians are more persecuted than
their urban counterparts. Allie Martin and Jenni Parker, ``Rural
Chinese Christians Suffer Behind State's Religious Freedom Facade,''
Agape Press (Online), 10 June 05.
\112\ ``Prominent Beijing House Church Leader Faces Harsh
Sentence,'' China Aid Association (Online), 11 November 04; Jason Lee
Steorts, ``With the Chinese Christians,'' National Review (Online), 31
January 05; ``American Church Leaders Deported; Beijing House Church
Pastor Tortured in Prison,'' China Aid Association; ``Nationwide
Crackdown on House Churches in China; Numerous Leaders Arrested;
Renowned Beijing Church Leader Trial Delayed Again,'' China Aid
Association (Online); ``Beijing Church Leader Put on Trial; Relatives
and US Embassy Official Blocked,'' China Aid Association (Online), 7
July 05; ``Chinese Pastor Put on Trial,'' Voice of the Martyrs
(Online), 7 July 05; Wang Te-chun, ``Pastor Prosecuted for Illegally
Publishing and Distributing the Bible,'' Ta Kung Pao, 8 July 05 (FBIS,
8 July 05); Hans Peterson, ``China: Why Can't All Christian Bookshops
Sell Bibles? '' Forum 18 News Service (Online), 24 August 05.
\113\ ``Senior Chinese House Church Leader Arrested; More Churches
Raided Before Christmas,'' China Aid Association (Online), 10 December
05; ``China: Christian Church Leader Arrested and at Risk of Torture
For Possession of Religious DVDs,'' Amnesty International UK (Online),
23 December 04; ``House-Church Leader Arrested; Zhang Rongliang Has a
High Profile in China and Internationally,'' Christianity Today
(Online), 5 January 05. On Zhang and the Fangcheng Fellowship and the
Confession of Faith, see also David Aikman, Jesus in Beijing: How
Christianity Is Transforming China and Changing the Global Balance of
Power (Washington, D.C.: Regnery, 2003), 74-80, 92-95. In addition,
approximately ten foreign Protestant leaders were expelled and 130
Chinese Protestant lay leaders were briefly detained when security
officials raided a house church leadership training session in Harbin
in February 2005. ``American Church Leaders Deported; Beijing House
Church Pastor Tortured in Prison,'' China Aid Association. Members of
the South China Church claim that over 300 members of their church were
detained between May and November 2004. ``The Hard Truth Concerning the
Case of the South China Church,'' Chinese Law and Religion Monitor,
April-June 2005, 118-128.
\114\ ``Christian Businessman in Xinjiang Tortured and
Hospitalized,'' China Aid Association (Online), 30 September 05;
``Hospitalized Christian Businessman Threatened by State Security
Agents,'' China Aid Association (Online), 3 October 05. For the
worsening situation of all believers in Xinjiang, including
Protestants, see Rotar, ``Xinjiang: Controls Tighten on Muslims and
Catholics.''
\115\ ``Mr. Zhang Yinan's Case and the UN Verdict,'' Chinese Law
and Religion Monitor, April-June 2005, 79-117; ``Chinese Church
Historian Released from Labor Camp,'' China Aid Association (Online),
27 September 05 (officials released Zhang on September 25, 2005, at the
end of his two year term).
\116\ For the witnesses who now say their testimony was extracted
under torture, see ``Chinese House Church Leaders First Time Testify at
UN, Video Testimony From Tortured Women Believers Released,'' China Aid
Association (Online), 2 April 2004; ``Released South China Church
Prisoners Re-arrested by Chinese Police,'' Voice of the Martyrs
(Online), 14 October 2002 (report that Xiang Fengping and Li Yingping
were sexually molested and tortured to extract testimony against Gong
Shengliang); Roundtable on Religious Freedom, Staff Roundtable of the
Congressional-Executive Commission on China, 25 March 02, Letter from
Yulan (Jin Tongyen) and Testimony of Cui Guilian; Press Release,
Committee for Investigation on Persecution of Religion in China,
available at Free Church for China Web site, 29 January 02 (written
testimonies of Zhang Hongjuan and Li Tongjin).
\117\ ``A Member of the Communist Party Absolutely Cannot Believe
in Any Religion'' [Gongchan dangyuan jue bu neng xinyang renhe
zongjiao], Bureau of Religious Affairs of Yunnan Province (Online), 15
August 04; ``Reflections on the Condition of Religion Faith Among
University Students in the Province,'' Gansu Ribao, 14 November 04
(FBIS, 16 November 04); ``Secret Communist Party Document Orders New
Initiative Promoting Atheism,'' China Aid Association (Online), 17
November 04 (contains text of the Notice on Further Strengthening
Marxist Atheism Research, Propaganda, and Education).
\118\ Ding Guangxun [K.H. Ting], ``A Call for Adjustment of
Religious Ideas,'' Chinese People's Political Consultative News, 4
September 98, reprinted in Li Xihyuan, Theological Construction--or
Destruction, An Analysis of the Theology of Bishop K.H. Ting (Ding
Guangxun) (Streamwood, Illinois: Christian Life Press, 2003), 109-111.
For further evidence of the pressure to make Protestant theology
conform to state ideology, see K.H. Ting, ``Some Thoughts on the
Subject of Theological Reconstruction,'' Chinese Theological Review,
Vol. 17 (2003); K.H. Ting, ``Adjustments in Theology are Necessary and
Unavoidable,'' Chinese Theological Review, Vol. 17 (2003); Zhang
Xiaofa, ``The Popularization of Theological Reconstruction,'' Chinese
Theological Review, Vol. 18 (2004); Li Weizhen, ``On Justification by
Faith,'' Chinese Theological Review, Vol. 18 (2004); Wang Guanghui,
``De-Emphasis on Justification by Faith: An Instance of Theological
Adaptation,'' Chinese Theological Review, Vol. 18 (2004). For a
critical discussion of theological construction, see Li Xinyuan,
``Theological Construction--or Destruction? '' The TSPM has also
announced that it plans to consecrate bishops in the future, though the
implementation of this plan has not yet been worked out, so that it
remains to be seen what effect this will have on the religious freedom
of registered Protestants who do not believe in episcopal authority.
``Church Leadership Discusses Consecrating Bishops,'' Amity News
Service (Online), 1 January 05; Wang Aiming, ``Growth of Christianity
in China: A Protestant Perspective of Ecumenical Challenges and
Opportunities,'' address delivered at the 21st National Catholic China
Conference in Seattle, WA, 26 June 05 (available at the Web site of the
U.S. Catholic China Bureau).
\119\ Magda Hornemann, `` `Religious Distortion' and `Religious
Freedom,' '' Forum 18 News Service, 25 November 04.
\120\ Aikman, Jesus in Beijing, 263-284; God and Caesar in China:
Policy Implications of Church-State Tensions, eds. Jason Kindopp and
Carol Lee Hamrin (Washington, D.C.: Brookings Institution, 2004), 137-
139.
\121\ See, e.g., the press releases of the China Aid Association.
\122\ Aikman, Jesus in Beijing; Kindopp, Hamrin, God and Caesar in
China.
\123\ ``Chinese Churches Face Challenges of Growth,'' Ekklesia
(Online), 11 May 05.
\124\ Paul Hattaway, Brother Yun, Peter Xu Yongze, and Enoch Wang,
Back to Jerusalem: Three Chinese House Church Leaders Share Their
Vision to Complete the Great Commission (Carlisle, UK: Piquant, 2003),
13 (80-100 million); Aikman, Jesus in Beijing, 9 (up to 80 million);
Kindopp, Hamrin, God and Caesar in China, 2 (at least 30 million,
``with estimated figures as high as 45 million to 60 million''); Gianni
Criveller, ``Pechino nuova Antiochia? '' Mondo e Missione (Online),
July-August 2005 (less than 30 million); ``Millions All Over China
Convert to Christianity,'' Telegraph (Online), 3 August 05; ``Just How
Many Christians and Communists Are There in China? '' Ecumenical News
International (Online), 14 September 05; Caroline Fielder, ``The Growth
of the Protestant Church in China,'' address delivered at the 21st
National Catholic China Conference in Seattle, WA, 27 June 05
(available at the Web site of the U.S. Catholic China Bureau).
\125\ Aikman, Jesus in Beijing, 97-114. On Protestantism at Chinese
universities, see Jen Lin-liu, ``At Chinese Universities, Whispers of
Jesus,'' Chronicle of Higher Education (Online), 10 June 05.
\126\ Commission Staff Interviews; Richard R. Cook, ``Behind
China's Closed Doors Newly Confident House Churches Open Themselves Up
to the World,'' Christianity Today (Online), February 2005.
\127\ There are early signs of an emerging denominational
sectarianism developing over disagreements as to Pentecostal and
charismatic practices and the growing theological sophistication of the
unregistered house churches, probably due to their increasing contact
with Protestants outside China. Commission Staff Interview; ``Threat of
Denominationalism Requires Vigilance,'' Amity News Service (Online),
August 2004. The government's concern with Protestant evangelicalism
can be seen in many of the articles published in the Chinese
Theological Review or on the Web site of the Amity News Service. On
evangelicalism in China, see Aikman, Jesus in Beijing. For important
criticisms of Aikman, particularly regarding the Pentecostal character
of many of the Protestant house churches, see Samuel Pearson, ``Jesus
in Beijing: A Review Essay,'' Encounter LXV (Autumn 04), 393-402, and
Gianni Criveller, ``Pechino nuova Antiochia? '' Mondo e Missione
(Online), July-August 2005.
\128\ ``Bringing the Church Into Society,'' Amity Newsletter
(Online), March 2005, no. 7.
\129\ Commission Staff Interview. See also the Web site of St. Paul
University of China.
\130\ Magda Hornemann, ``Is Central or Local Government Responsible
for Religious Freedom Violations? ''
Notes to Section III(e)--Freedom of Expression
\1\ See, e.g., Public Intellectuals in China, Staff Roundtable of
the Congressional-Executive Commission on China, 10 March 05, Written
Statement submitted by Merle Goldman, Professor Emerita of Chinese
History, Boston University and Executive Committee Member, Fairbank
Center for East Asia Research, Harvard University:In fact, there has
been a contraction of public space for political discourse since Jiang
Zemin announced he would step down from his last position as head of
the state military commission in the fall 2004 and Hu gained full power
over the government. The Hu leadership has cracked down on a number of
people who use the Internet or publish their own websites to discuss
political issues. A number of cyber-dissidents have been imprisoned as
a warning to others as to how far they can go in discussing political
reforms on the Internet. Independent intellectuals who speak out on
controversial issues have been briefly detained as well.
\2\ Cheng Yizhong, ``Acceptance Speech by Laureate of UNESCO/
Guillermo Cano, Cheng Yizhong: Hold on to Common Sense Amid Terror and
Lies'' [Cheng Yizhong huo shijie xinwen ziyou jiang daxieci: zai kongbu
he huangyan zhong jianchi changshi], 28 April 05, reprinted in Boxun
(Online), 29 April 05.
\3\ ``How to Tightly Control Public Opinion, Increase Abilities to
Guide Public Opinion'' [Zenyang laolao bawo yulun daoxiang, zengqiang
yindao yulun de benling], Xinhua (Online), 14 December 04. Much of the
Party and government rhetoric and policymaking in this regard in the
last year can be traced to a speech given by Liu Yunshan, member of the
Chinese Communist Party Central Committee, secretary of the
Secretariat, and director of the Central Propaganda Department, on
September 22, 2004, at the National Propaganda Directors Seminar, and
subsequently published in the October 16 edition of Seeking Truth under
the title ``Earnestly Study and Implement the Spirit of the Fourth
Plenary Session of the 16th Chinese Communist Party Central Committee;
Strive to Increase the Party's Ability to Lead Ideological Work''
[Renzhen xuexi guanche shiliu jie si zhong quanhui jingshen; nuli tigao
dang lingdao yishi xingtai gongzuo de nengli]:In order to consolidate
the guiding position of Marxism, it is necessary to ensure the
leadership of the Party in ideological work. . . No matter what changes
occur in the situation or the environment, there can be no change in
the Party's control over ideology. It is necessary to insist on the
principle that the Party controls the cadres, to strengthen the
building of the leadership ranks in ideological agencies and work
units, and to grasp the work and leadership of news publishing, radio
and television, and the cultural arts and philosophical and social
sciences firmly within the hands of those loyal to Marxism. It is
necessary to establish an awareness that this is a battlefield, and
that people have a responsibility for defending this territory. The
thought and culture battlefield is the primary vehicle and
dissemination channel of ideology, and if Marxist thought does not
occupy it, then all kinds of non-Marxist, and even anti-Marxist,
thought will occupy it.See also ``Liu Yunshan: Deepen Education of
`Three Kinds of Study,' Enhance Skills to Guide Public Opinion'' [Liu
yunshan: shenhua sanxiang xuexi jiaoyu huodong, zengqiang yindao yulun
benling], Xinhua, 26 December 04, reprinted in People's Daily (Online),
26 December 04: ``Liu Yunshan stressed: Party committees at all levels,
especially the propaganda departments, should conscientiously
strengthen and improve the Party's leadership over journalistic and
propaganda work. . . .''
\4\ Ji Weimin, ``Public Opinion Supervision: A Right? A Tool? A
Duty? '' [Yulun jiandu: Quanli? Gongju? Zeren?], Study Times, reprinted
in People's Daily (Online), 25 March 05.
\5\ ``How to Tightly Control Public Opinion, Increase Abilities to
Guide Public Opinion,'' Xinhua: In China, journalism constitutes one of
the major parts of the Party's enterprises, the news media is the
mouthpiece of the Party and the people, and must be under the
leadership of the Party. In its thought, the news must take Marxism as
its guide, must maintain a high degree of unanimity with the central
Party with Comrade Hu Jintao as the Secretary; . . . in its
organization it must insist on the Party's leadership of news work,
ensure that leaders of news organizations at all levels firmly grasp in
their hands loyalty to Marxism, and loyalty to the Party and the
people.
\6\ See, e.g., Zhao Shi, ``Establish Systematic Protections for the
Good Image of the Media'' [Shuli xinwen meiti lianghao xingxiang de
zhidu baozheng], People's Daily, 8 April 05, 11.
\7\ Ling Yan, ``The Essence of Western Freedom of Expression and
the Mission of Our Country's Journalism'' [Xifang xinwen ziyou de
benzhi yu woguo xinwen shiye de shiming], Red Flag Manuscript,
reprinted in People's Daily, 6 April 05, 9:
For a long time, some comrades have had some incorrect areas in
their ideology, owing to the fact that they either do not have a
concept of the true meaning of press freedom, or they do not fully
understand the way the news business operates in the world today. These
incorrect areas manifest themselves in two main ways. The first way is
to blindly worship Western press freedom, and always believe that the
West is a press freedom paradise. The second way is to think that press
freedom means you get to report whatever you want, and report any way
you want, and to have a complete lack of restrictions on press freedom.
See also Hou Jianmei, ``Shedding Light on the Inside Story of the
U.S. Government News Making'' [Meiguo zhengfu paozhi xinwen neimu
baoguang], Beijing Daily, reprinted in Xinhua (Online), 18 March 05; Qi
Zijian, ``The New York Times Reveals the Inside Story: U.S. Media
Enjoys Freedom of Speech Like This'' [``Niuyue shibao'' jie neimu: mei
meiti ruci xiangshou ``xinwen ziyou''], Xinhua (Online), 22 March 05.
\8\ ``Journalist Accreditation Cards: Legal Rights to Be Protected,
Illegal and Unethical Behavior to Be Sanctioned'' [Jizhezheng: hefa
quanyi shoudao baohu, weigui weiji jiang bei zhongfa], Xinhua (Online),
16 February 05: ``[N]ews reporters are a new force in the work of
propagandizing public opinion, and all of their news gathering and
editing activities relate to insisting on correct guidance of public
opinion . . . and will always be the subject of high-level attention
from the government and the Communist Party.'' See also Interim Rules
for the Administration of Those Employed as News Reporting and Editing
Personnel [Xinwen caibian renyuan guanli de guiding], issued 22 March
05, art. 2, requiring that journalists and editors ``carry out China's
foreign policies.''
\9\ Commission Staff Interview.
\10\ ``[Newspapers] shall not select articles that contradict the
guiding policies of the Party and the nation.'' Notice Regarding
Further Strengthening the Administration of Selection of Articles for
Newspapers and Periodicals [Guanyu jiyibu jiaqiang baokan zhaizhuan
gaojian guanli de tongzhi], issued 25 February 05, art. 1. Authorities
describe this policy as public opinion ``guidance,'' ``steering,'' and
``supervision.'' These are, however, different names for the same
policy. Ji Weimin, ``Public Opinion Supervision: A Right? A Tool? A
Duty? '':
In fact, currently public opinion supervision and media supervision
are considered to be one and the same. . . While it is the media that
acts as the critic in exercising the public opinion supervision
function, the media's major critical reports must usually receive
instructions or permission from their managing government agency, and
public opinion supervision texts are generally perceived as being the
opinion of a government or Party organization at one level or another.
. . [P]ublic opinion supervision is an extension of, or supplement to,
the authority of the Party and the government.See also ``Right to
Protect and Right to Benefit of Public Opinion Supervision'' [Yulun
jiandu zhuti de weiquan yu yongquan], China Journalist, reprinted in
Xinhua (Online), 16 September 04: ``The implementation of proper
supervision of public opinion must be carried out in a manner that
benefits the Party's line, direction, and policies . . . and encourages
the strengthening of the people's faith in the Party and the
government.''
\11\ Wang Xiaojie, ``Confirming the Position of Party Papers,
Expanding the Function of Party Papers'' [Mingque dangbao dingwei,
tuozhan dangbao gongneng], Journalistic Front, reprinted in People's
Daily (Online), 1 December 04:
Regarding providing policy reference material to the Party and the
government, the primary means is [for reporters] to go through media
investigation and research in order to provide Party and government
agencies with information they do not possess or are neglecting (and
for that portion [of the information] that it is not convenient to make
public, it can be provided in the form of internal reference).See also:
Interim Rules on Chinese Communist Party Internal Supervision [Zhongguo
gongchandang dangnei jiandu tiaoli (shixing)], promulgated 17 February
04: ``Under the leadership of the Party, the news media shall, in
accordance with relevant regulations and procedures, utilize internal
notices or public reports, and give free rein to functions of public
opinion supervision.''
\12\ For example, in June 2005, officials in a Zhejiang province
township had banned the sale of the May edition of Rural Youth magazine
because of an article criticizing local officials. The Sun newspaper of
Hong Kong reported that Rural Youth's May edition included an article
entitled ``Treasuring the Land that We Rely Upon for our Existence''
that revealed how officials in Shangyu municipality's Lihai township
abused their authority to give away and sell state-owned land at low
prices to commercial developers. Following the magazine's publication,
no copies were available from magazine vendors, and a Shangyu
government official said that subscribers did not receive their copies.
`` `Rural Youth' Silenced for Exposing the Inside Story of Illegal Land
Sales'' [``Nongcun qingnian'' yin jielu feifa shoudi neimu zao
fengsha], Radio Free Asia (Online), 22 July 05. Also in June, someone
removed pages from its sister publication, the Southern Metropolitan
Daily, that were distributed in the Da Gang township. The removed pages
included an article that reported about people from Long Gu village in
Da Gang petitioning for the return of land requisitioned by the
township's real estate development company. `` `Southern Metropolitan
Daily' Suspected of Being Maliciously Bought Up in Panyu Dagang, Two
Sections Removed That Reported on Illegal Property Confiscations''
[``Nanfang dushibao'' zai panyu dagang yi zao eyi shougou; baodao
weigui zhengdi de liang ban be chouzou], Southern Daily (Online), 22
June 05.
\13\ ``List of `50 Public Intellectuals Who Influence China' ''
[``Yingxiang zhongguo gonggong zhishi fenzi wushi ren'' mingdan],
Southern People Weekly, reprinted in Sohu (Online), 9 September 04;
`Who Are the `Public Intellectuals' ? '' [Shei shi gonggong zhishi
fenzi?], Southern People Weekly, reprinted in Sohu (Online), 7
September 04.
\14\ Ji Fangping, ``Seeing Through the Appearance To Perceive the
Essence--An Analysis of the theory of `Public Intellectuals' '' [Touguo
biaoxiang kan shizhi--xi ``gonggong zhishi fenzi'' lun], Liberation
Daily, 15 November 04, reprinted in People's Daily (Online), 25
November 04, 9.
\15\ For more information on this campaign, see Public
Intellectuals in China, Testimony and Written Statements of Perry Link,
Professor of Chinese Language and Literature, Princeton University;
Merle Goldman, Professor Emerita of Chinese History, Boston University
and Executive Committee Member, Fairbank Center for East Asia Research,
Harvard University; and Hu Ping, Chief Editor, Beijing Spring.
\16\ Joseph Kahn, ``China Calls Off Rights Conference,'' New York
Times (Online), 18 May 05.
\17\ Commission Staff Correspondence.
\18\ Jin Qiang, ``Firmly Grasp the Initiative on Ideology Work''
[Laolao zhangwo yishi xingtai gongzuo de zhudao quan], People's Daily,
23 November 04, 9.
\19\ Liu Yixing, ``Zhu Hong of the State Administration of Radio
Film and Television Interpreting the New Regulations on the
Introduction of Foreign Television Programs'' [Guojia guangdian zongju
zhuhong jiedu dianshi yinjin yu hezuo xin guiding], China Radio Film &
Television, reprinted in People's Daily (Online), 4 November 04, Zhu
Hong, the head of China's State Administration of Radio, Film, and
Television, discussing the ``Broadcast Administration Regulations on
the Introduction of Foreign Television Programs.''
Foreign current event news programs cannot be introduced . . . news
propaganda programs are the mouthpiece of the Communist Party and the
government, and shoulder the responsibility of spreading the Party's
voice to every household, and China's voice around the world. Therefore
we must keep news and other programs that embody ideology firmly within
our grasps. . . .Following [government] approval, foreign television
programs may only be used as source materials, and cannot be broadcast
in their entire, original condition. . . . [Broadcasters] should pay
attention to the orientation of programs' general values, as well as
their particulars, and filter out words and scenes that are not suited
to China's situation . . . .
\20\ Yu Xiao, ``Creating Strong Press on the Internet: There Is
Politics on the Internet, There Is Competition on the Internet''
[Yingzao wangshang yulun qiangshi: wangshang you zhengzhi, wangshang
you jiaoliang], People's Daily, 8 December 04, 4: However, the Internet
is not tranquil. . . . Both at home and abroad there are hostile
influences and people with ulterior motives who are using the Internet
to make us ``divided'' and ``westernized.'' They disseminate fake
information, spread reactionary speech, and even employ Internet
writers to write about socially hot topics and sensitive news to fool
Internet users and misguide public opinion. . . . If we do not move to
capture the ideological battlefield, others will occupy it.
See also Chen Kexiang, Xiang Keyuan, ``Inhibiting the Negative
Influences of `Internet Emotional Public Opinions' '' [Ezhi ``wangluo
qingxuxing yulun'' fumian yingxiang], Guangming Net, 19 April 05:
[The Internet] has already become a means employed by enemy forces
to carry out psychological warfare. Relevant information demonstrates
that some enemy forces surreptitiously employ Internet experts and
writers as ``hired guns,'' inflame the emotions on the Internet, seduce
some people who do not understand the situation into wrongdoing, spread
negative emotions, all in order to give rise to social chaos and create
social instability.
See also Liu Yuzhu, ``Actively Responding to the Challenge of the
Internet Era'' [Jiji yingdui wangluo shidai de tiaozhan], Seeking Truth
(Online), 1 January 05: Western countries, headed by the United States,
have occupied an advantageous position with respect to the spread of
the Internet, and they dump on China massive amounts of information of
all kinds, including their political models, value systems, and
lifestyles, in order to oppose and edge out socialist values. In
particular, the so-called religious culture and the culture which
spreads pornography and violence are stealthfully influencing the
audience's sentiment and value judgments. . . . [T]his kind of
``cultural invasion'' conducted via the Internet is extremely
dangerous, as it threatens the independence and existence of the
national culture, and even shakes the foundation of the nation and the
state. In order to safeguard our cultural security, we must have a full
understanding of, and actively prepare against, this.
\21\ Zhao Jie, ``Do Not Vilify the Internet, It Is Necessary to
Emphasize Forming Online Positive Public Opinion'' [Bu yao yaomohua
hulianwang, yao xingcheng wangshang zhengmian yulunde qiangshi], Wen
Hui Bo, 12 November 04, reprinted in People's Daily, 6 December 04, 9.
\22\ ``GAPP Book Office Responsible Person Work Report for Previous
Year on National Book Publishing Administration Work'' [Zongshu tushusi
fuzeren tongbao qunian quanguo tushu chuban guanli gongzuo], Press and
Publication (Bureau) of Guangdong Web site, 24 February 05; see also Yu
Xiao, ``Creating Strong Press on the Internet: There Is Politics on the
Internet, There Is Competition on the Internet'': ``Just as we have
taken the initiative to emphasize that the work of newspapers,
television, and radio must have a firm grasp on propaganda ideology
work, we must also build up the emphasis on Internet public opinion
propaganda. . . .''
\23\ See, e.g., Cao Junwu, ``Suqian: Leading Internet Public
Opinion in Practice'' [Suqian: yingdao wangluo yulun shijian], Southern
Weekend, 19 May 05, 5; Chen Ming, Yang Guowei, and Chen Qiaoge,
``Outlook Magazine: China's Internet Expression's Current Situation and
Press Guidance'' [Zhongguo wangluo yulun xianzhuang ji yulun yindao],
Outlook, reprinted in People's Daily (Online), 2 September 04; Zheng
Baowei, ``Grasp the Art of Mastering and Guiding Public Opinion: Raise
the Quality of Responding to and Resolving Public Opinion Crises''
[Zhangwo jiayu he yindao yulun de yishu, tigao yingdui he huajie yulun
weiji de shuiping], Journalist Monthly (Online), 1 February 05.
\24\ Josephine Ma, ``University Chat Room Shut Ahead of Meeting,''
South China Morning Post (Online) 16 September 04.
\25\ ``News Black-Out on Death of Former Top Leader Zhao Ziyang,''
Radio Free Asia (Online), 28 January 05.
\26\ ``China Tightens Internet Security During Imminent Plenary NPC
Meeting,'' Xinhua (Online), 1 March 05.
\27\ ``Responding to Recent Protest Marches Regarding Japan in Some
Places, Ministry of Public Security: Using Internet to Stir Up Protest
Marches Forbidden'' [Jiu jinqi yixie difang fasheng she ri youxing
shiwei huodong, gonganbu: budei liyong wangluo gudong youxing shiwei],
Xinhua, 21 April 05, reprinted in People's Daily, 22 April 05, 1. ``
`Activists' Claim China Blocking Anti-Japan Websites for May Day
Holidays'' Agence France-Presse, 2 May 05 (FBIS, 2 May 05); Zheng Qian,
``Professors and Mentors Participate in Discussions Online: Shanghai
University BBSs Stop Illegal Rumors'' [Jiaoshou, daoshi shangwang canyu
taolun: Shanghai gaoxiao BBS dujue feifa chuanyan], Shanghai Evening
Post (Online), 25 April 05; ``Beijing Warns Off Protestors With SMS,
Braces for May 4,'' Associated Press, 2 May 05, reprinted in Taipei
Times (Online), 2 May 05.
\28\ ``BBS Contents Illegal, Investigate Operator's Responsibility:
Online Postings Need to be Examined Before Distributing'' [BBS neirong
weigui zhuijiu banzhu zeren: tiewen shangwang xu xianshen houfa],
Southern Metropolitan Daily (Online), 2 May 05.
\29\ In February 2005, SARFT issued a policy statement listing as
one of its top 10 priorities for China's non-print media outlets for
2005: ``Strengthen the capability and influence of radio, television,
and film with respect to propagandizing abroad, and establish a
positive perception of China abroad.'' ``Radio and Television
Propaganda Work Priorities for 2005,'' [2005 nian guangbo yingshi
xuanchuan gongzuo yaodian], SARFT Web site, 22 February 05; Interim
Implementation Rules for Administration of Those Employed as Radio and
Television News Reporters and Editors [Guangbo yingshi xinwen caibian
renyuan congye guanlide shishi fangan (shixing)], issued 1 April 05,
art. 4 (requiring that journalists and editors ``observe discipline
with respect to propagandizing to foreigners, maintain a high degree of
unanimity with the central government's line of action with respect to
foreigners, and do not create any static or noise''); see also Lan
Tianwei, ``The Internet Has Become Our Country's Best Medium for
Propagandizing Abroad'' [Wanglu yijing chengwei woguo duiwai xuanchuan
de zuijia meiti], Xinhua, reprinted in People's Daily (Online), 10
November 04.
\30\ Liu Binjie, ``Using Reform as the Motivator to Speed Up
Development of Press and Publishing'' [Yi gaige we dongli jiakuai
xinenchubanye fazhan], China Youth Daily, reprinted in People's Daily
(Online) 26 January 05:
[T]here only remains the cultural arena where our influence is
insufficient. . . . We only need to develop and strengthen our cultural
products, increase our cultural competitiveness, and only then can we
gain a foothold in the world's cultural market, only then will we be
able to allow the world to understand China's culture, and bring into
play our culture's influence on international society.
\31\ Declan McCullagh, ``The UN Thinks About Tomorrow's
Cyberspace,'' CNET Networks (Online), 29 March 05.
\32\ Han Yongjun, ``Huang Chengqing: Registration Promotes the
Administration of Internet Regulation'' [Huang chengqing: beian cujin
hulianwang guifan guanli], People's Post and Telecommunication Daily
(Online), 1 June 05; see also Elliot Noss, ``A Battle for the Soul of
the Internet,'' CNET Networks (Online), 8 June 05.
\33\ Regulations on the Administration of Publishing [Chuban guanli
tiaoli], issued 25 December 01, art. 11. For example, Chinese
authorities confiscated 906 books that Wang Yi had privately printed to
give to friends. Wang, an author in China and member of the Independent
Chinese PEN Center, filed an administrative appeal with the GAPP to
have his right to self-publish respected, but the appeal was rejected.
\34\ ``Vice Director of GAPP Liu Binjie: Firmly Ban Illegal
Newspapers and Magazines'' [Xinwen chuban zongshu fu shuzhang Liu
Binjie: jianjue qudi feifa baokan], China Journalist Net, reprinted in
People's Daily (Online), 10 May 05.
\35\ For example, in August 2005, a court in Beijing sentenced the
head of the Beijing representative office of a Hong Kong media group to
three years imprisonment under Article 225 of the PRC Criminal Law for
publishing a magazine without a government issued serial number. Li
Kui, ``Printing and Publishing an Illegal Magazine; Media Group Chief
Representative Sentenced to Three Years'' [Yinshua chuban feifa qikan;
chuanmei jituan shouxi daibiao huoxing 3 nian], Legal Evening News,
reprinted in Xinhua (Online), 11 August 05. Article 225 makes it a
crime for anyone to commit ``illegal acts in business operation and
thus disrupt market order.''
\36\ See, e.g., ``Vice Director of GAPP Liu Binjie: Firmly Ban
Illegal Newspapers and Magazines,'' China Journalist Net (calling on
GAPP officials to ``unceasingly improve our ability to use the law as a
means to restrain illegal periodical publishing activities.''); Liu
Binjie, ``Motivated by the Goal of Reform, Speed Up Development in the
News Publishing Industry'' [Yi gaige wei dongli jiakuai xinwen chubanye
fazhan], Youth Journalist, reprinted in People's Daily (Online), 26
January 05 (``With regards to marketized media, we must strengthen
administrative legislating, and use the law to ensure that the guidance
of public opinion and publishing direction are correct.'').
\37\ Zhao Jie, ``Do Not Vilify the Internet, It is Necessary to
Emphasize Forming Online Positive Public Opinion,'' 9.
\38\ Li Liang and Yu Li, ``14 Government and Party Agencies Unite
to Purify the Internet'' [14 buwei lianhe ``jinghua'' hulianwang],
Southern Weekend (Online), 18 August 05.
\39\ ``Realistically Improve Administration; Promote Administration
in Accordance with the Law'' [Qieshi gaijin guanli; tuijin yifa
xingzheng], People's Daily, 21 June 05, 4.
\40\ Tim Johnson, ``China Sees New Breed of Civil Activists
Emerge,'' Knight Ridder, 4 October 04; Fu Qiang, ``Nation's First
Private Crime Reporting Web Site Existed Only 38 Days: Experts Discuss
Three Big Questions'' [Quanguo shouge minjian jubaowang jin cun 38
tian: zhuanjia tan san da zhiyi], China Economic Net (Online), 8
September 04.
\41\ Han Yongjun, ``Hurry to Get an `ID Card' for Your Web Site''
[Kuai gei nide wangzhan ling ``shenfenzheng''], People's Posts and
Telecommunications News, reprinted in China Information Industry
(Online), 1 June 05; Registration Administration Measures for Non-
Commercial Internet Information Services [Feijingyingxing hulianwang
xinxi fuwu beian guanli banfa], issued 8 February 05.
\42\ ``Beijing Public Security Office Demands Virus Web Sites and
Medium and Small Web Sites Register With Their Local Offices'' [Beijing
gonganju yaoqiu bingdu wangzhan ji zhongxiao wangzhan dao shudi beian],
Xinhua (Online), 2 June 05.
\43\ Li Liang and Yu Li, ``14 Government and Party Agencies Unite
to Purify the Internet.''
\44\ ``Major Deadline Arrives for Unregistered Domestic Web Sites;
One Quarter Temporarily Shut Down'' [Wei beian jingnei wangzhan daxian
yizhi; 1/4 wangzhan zhanshi guanbi], Beijing Youth Daily (Online), 1
July 05; see also, ``Operators Refuse to Implement Registration;
Shandong Shuts Down 404 Internet Web Sites'' [Ju bu fuxing beian yean;
shandong guanbi 404 jia hulian wangzhan], Qilu Evening News, reprinted
in Xinhua (Online), 18 July 05.
\45\ ``Xinhua Editorial: The Important Regulation Which Regulates
the Behavior of Those Engaged in News Reporting and Editing'' [Xinhua
shiping: guifan xinwen caibian renyuan xingwei de zhongyao zhidu],
Xinhua (Online), 22 March 05.
\46\ ``Professional Ethical Standards for China Radio and
Television Announcers and Hosts'' [Zhongguo guangbo dianshi boyinyuan
zhuchiren zhiye daode zhunze], issued 2 December 04; ``Professional
Ethical Standards for China Radio and Television Editors and
Reporters'' [Zhongguo guangbo dianshi bianji jizhe zhiye daode zhunze],
issued 2 December 04.
\47\ Notice Regarding Strengthening the Supervision of Radio and
Television Discussion Programs [Guanyu jiaqiang guangbo dianshi
tanhualei jiemu guanlide tongzhi], issued 10 December 04.
\48\ Measures for the Administration of Journalist Accreditation
Cards [Xinwen jizhezheng guanli banfa], issued 10 January 05; Measures
for the Administration of News Bureaus [Baoshe jizhezhan guanli banfa],
issued 10 January 05.
\49\ Interim Rules Regarding the Administration of Those Engaged in
News Reporting and Editing [Guanyu xinwen caibian renyuan congye guanli
guiding], issued 22 March 05. According to one provincial Propaganda
Department official, ``the promulgation of the Rules makes public the
Party's demands regarding news work and those engaged in news work,
what news reporters and editors should do and should not do, and what
methods and behaviors are incorrect. . . .'' ``Published Extracts of
Speeches at the Forum of the Province's Primary News Work Units to
Study the Implementation of the `Regulations' '' [Shengnei zhuyan
xinwen danwei xuexi guanche ``guiding'' zuotanhui shangde fa yan
zhaideng], Gansu Daily (Online), 9 May 05.
\50\ Interim Implementation Rules for Administration of Those
Employed as Radio and Television News Reporters and Editors, art. 4.
These rules also state: ``With respect to reports on breaking events
relating to minorities and minority areas, it is necessary to have a
cautious grasp, and ask for instructions from the relevant government
agency in a timely manner.'' See also State Administration of Radio
Film and Television Printed and Distributed Notice Regarding Resolutely
Strengthening and Improving Radio and Television Public Opinion
Supervision Work [Guojia guangdian zongju yingfa guanyu qieshi jiaqiang
he gaijin guangbo dianshi yulun jiandu gongzuo de yaoqiu de tongzhi],
SARFT (Online), 10 May 05.
\51\ ``General Office of the Communist Party Prohibits Inter-
Regional Supervision by Domestic Mass Media'' [Zhongban jin neidi
chuanmei yidi jiandu], Ming Pao (Online), 13 June 05.
\52\ Nailene Chou Wiest, ``Closing of Loopholes to Further Gag
Media,'' South China Morning Post (Online), 11 June 05.
\53\ ``Cleaning up and Reorganizing Newspaper Magazine Agencies and
Reporter Stations Nationwide: 642 Shut Down and Had Licenses Removed''
[Quanguo baokanshe jizhezhan qingli zhengdun: tingban zhuxiao 642 jia],
Xinhua, 28 September 04, reprinted in People's Daily, 29 September 04,
10.
\54\ Yuan Xi, ``2004 `Anti-Pornography and Anti-Illegal
Publications': 200 Million Illegal Publications Confiscated'' [2004
Nian ``saohuang dafei'': 2 yi jian feifa chubanwu bei shoujiao],
People's Daily, reprinted in Xinhua (Online), 24 January 05.
\55\ See, e.g., ``Make the Important Points Stand Out, Place Stress
on Implementation, Earnestly Protect the Order of the Publication
Market (Sichuan)'' [Tuchu zhongdian, henzhua luoshi, qieshi weihu
chubanwu shichang zhixu (Sichuan)], Sichuan Office on ``Sweep Away
Pornography, Strike Down Illegal Publications,'' 29 December 04,
reprinted on National Working Group Office on ``Sweep Away Pornography,
Strike Down Illegal Publications'' Web site, 29 December 04.
\56\ ``2004 News Publishing Industry Development Report: Further
Developing and Flourishing'' [2004 nian xinwen chuban ye fazhan baogao:
jin yibu fazhan fanrong], Xinhua, 30 January 05, reprinted in People's
Daily, 1 February 05, 11.
\57\ ``Eight Departments and Agencies: Maintain the Dignity of the
Nation's Territory, Strengthen the Supervision of the Map Market'' [Ba
bumen: weihu guojia bantu zunyan, jiaqiang ditu shichang jianguan],
Xinhua (Online), 27 April 05.
\58\ Qu Zhihong, ``GAPP and Others Publicly Announced 60 Kinds of
Illegal Periodicals'' [Guojia xinwen chuban zongshu deng gongbu qudi 60
zhong feifa qikan], Xinhua, 28 April 05, reprinted in People's Daily
(Online), 28 April 05.
\59\ ``Central Authorities Govern Newspapers and Magazines, the
Leading Group Dispatched Supervision and Inspection Groups to
Investigate 10 Jurisdictions' Newspaper and Magazines Control''
[Zhongyang zhili baokan lingdao xiaozu pai jianchazu jiancha shi
shengqu baokan zhili], China Journalism Review, reprinted in Xinhua
(Online), 29 March 04.
\60\ ``China Banning Illegal Publications For Overhauling
Publications Market, Official Says,'' Xinhua (Online), 14 May 05.
\61\ Qu Zhihong, ``Various Illegal Foreign Newspapers and Magazines
Will be Banned According to Law'' [Duozhong weifa waiwen baokan jiang
bei yifa chachu qudi], Xinhua (Online), 28 April 05. In July 2005,
several Chinese government agencies issued a joint notice announcing
the commencement of a campaign to ``investigate, prosecute, and ban''
unauthorized foreign language publications. ``GAPP and Five Agencies
Unite to Investigate, Sanction, and Shut Down Illegal Foreign Language
Periodicals'' [Xinwen chuban zongshu deng 5 bumen jiang lianhe chachu
qudi feifa waiwen baokan], Xinhua (Online), 19 July 05.
\62\ For detailed information on the regulations governing book
publishing, see China's Book Publishing Flowchart on the Commission's
Web site.
\63\ ``A New Basis for Book Recalls: Those with an Error Rate
Greater Than 0.05 Percent Should Be Recalled Within 30 Days'' [Tushu
shouhui xin yiju: chacuolu da wanfen zhi wu 30 tian nei shouhui],
Beijing Star Daily, reprinted in People's Daily (Online), 2 March 05.
\64\ See, e.g., Zhang Yonghua, Pan Hua, and Liu Jia, ``Current
Situation and Challenges for Foreign Media's Entry into Shanghai''
[Jingwai meiti jinru: shanghai de xianzhuang yu tiaozhan], News
Journalist, reprinted in People's Daily (Online), 7 June 05:
[A]dministrative rules regulate the entry and journalistic
activities of foreign news agencies residing in China: an approval
system is imposed on journalists assigned by foreign news agencies and
their resident news bureaus; and when any resident news bureau or its
personnel interviews a government bureau or other work unit, it must
first apply for permission from the relevant foreign affairs agency.
\65\ ``Hong Kong Reporters Detained in Beijing'' [Xianggang jizhe
zai Beijing bei koucha], Boxun (Online), 29 January 05; ``Chinese
Government Bans Two Canadian Journalists with Chinese-Language TV
Station,'' Radio Free Asia (Online), 18 January 05; Didi Kirsten
Tatlow, `` `Give Us All Your Notes and Pictures,' '' South China
Morning Post (Online), 17 April 05; Serena Fang, ``Silenced,''
Frontline (Online), 17 January 05; Edward Lanfranco, ``Hebei Incident
Shows China's Dark Side,'' United Press International, reprinted in
Washington Times (Online), 19 July 05.
\66\ ``GAPP Book Office Responsible Person Work Report for Previous
Year on National Book Publishing Administration Work'' [Zongshu tushusi
fuzeren tongbao qunian quanguo tushu chuban guanli gongzuo], Press and
Publication (Bureau) of Guangdong Web site, 24 February 05.
\67\ Erik Eckholm, ``Aide for Times Revealed Secrets, China
Charges,'' New York Times (Online), 22 October 04; Human Rights in
China Press Release, ``Update on Zhao Yan Case,'' September 04.
\68\ Broadcast Administration Regulations on the Introduction of
Foreign Television Programs [Jingwai dianshi yewu yinjin, bochu guanli
banfa], issued 23 September 04, art. 15.
\69\ ``Journalist Gets 10 Years in Jail for Leaking Top State
Secrets,'' Xinhua (Online), 30 April 05.
\70\ Notice of Certain Decisions Regarding Non-Public Investment in
Cultural Industries [Guanyu feigongyou ziben jinru wenhua chanyede
ruogan jueding], issued 13 April 05; Rules on the Administration of
Radio, Film, and Television System's Local Foreign Affairs Work
[Guangbo yingshi xitong difang waishi gongzuo guanli guiding], issued 6
July 05; Regulations on the Administration of Commercial Performances
[Yingyexing yanchu guanli tiaoli], issued 7 July 05; Measures Regarding
Strengthening the Administration of the Importation of Cultural
Products [Guanyu jiaqiang wenhua chanpin jinkou guanlide banfa] issued
3 August 05; Certain Opinions Regarding the Introduction of Foreign
Investment into the Cultural Domain [Guanyu wenhua lingyu yinjin waizi
de ruogan yijian], issued 4 August 05; Notice Regarding Further
Strengthening the Administration of Radio and Television Channels
[Guanyu jinyibu jiaqiang guangbo dianshi pindao guanlide tongzhi],
issued 4 August 05.
\71\ ``China's Progress in Human Rights in 2004,'' State Council
Information Office White Paper, 13 April 05.
\72\ ``45 Sino-Foreign Cooperative Projects on Periodicals Approved
by the General Administration of Press and Publication'' [45 ge
zhongwai qikan hezuo xiangmu yi huo zongshu pizhun], Media Undo,
reprinted in People's Daily (Online), 8 September 04.
\73\ Liu Binjie, ``Motivated by the Goal of Reform, Speed Up
Development in the News Publishing Industry'' [Yi gaige wei dongli
jiakuai xinwen chubanye fazhan], Youth Journalist, reprinted in
People's Daily (Online), 26 January 05.
\74\ Geraldine Fabrikant, Keith Bradsher, ``Media Executives Court
China, But Still Run Into Obstacles,'' New York Times, 29 August 05,
C1; Pietro Ventani, ``Sex and the City (and China's Media Crackdown),''
Asia Times (Online), 27 August 05; ``Aiming at Virgin Investment
Territory; A Roadmap of the Creative Ways that Foreign Companies Get
Into China's Cultural Industry'' [Miaoxiang ziben chunudi; waizi qiaoru
zhongguo wenhua chanye luxiantu], International Finance News, reprinted
in Xinhua (Online), 2 September 05.
\75\ ``[I]t is necessary to clarify the goal of the reforms, and
that is to establish within newspaper and periodical enterprises
leadership by Communist Party committees, government administration,
industry self discipline, and administrative management systems. . .
.'' Yang Chiyuan and Cha Guowei, ``2005 Observation of Media Reform and
Development: Meeting on Direction of Media Reform and Development Was
Held, Experts Analyzed Reform Policies and Speculated Media Direction''
[2005 chuanmaiye gaige yu fazhan gaoduan guancha: chuanmeiye gaige yu
fazhan zoushi yantaohui zhao kai, zhuanjia xuezhe jiexi gaige zhengce
bamai chuanmei zoushi], Media, reprinted in People's Daily (Online), 18
April 05. For example, in April 2005, the People's Daily reported that
the GAPP had approved the establishment of China's first media
organization using a shareholding system. The report stated the company
would be ``co-led'' by a board of directors and a Communist Party
committee. ``Our Country's First News Organization With a Complete
Stockholding System Established Today in Beijing'' [Woguo shoujia
zhengti shixing gufanzhi de xinwen jigou zai jing jiepai], People's
Daily (Online), 19 April 05.
\76\ ``GAPP: Private Book Companies Cannot Form Private Publishing
Houses'' [Chuban zongshu: minying shuye buke chengli minying
chubanshe], China News Net, reprinted in People's Daily (Online), 10
September 04.
\77\ Liu Binjie, ``Motivated by the Goal of Reform, Speed Up
Development in the News Publishing Industry'' Regardless of how we go
about reforming or what organization system we implement, we cannot
allow any change in the correct guidance of public opinion. This
relates to the problem of strengthening Marxist ideology, it relates to
the problem of ensuring the dominant position of Marxist ideology, it
relates to the problem of disseminating the Party's primary ideology.
What we must first allow for is that we must insist that the Party's
primary media remain state owned.
\78\ Antoaneta Bezlova, ``Big Brother's Book Ban Blues,'' The Hong
Kong Standard (Online), 31 May 05.
\79\ David Barboza, ``Pushing (and Toeing) the Line in China,'' New
York Times (Online), 18 April 05.
\80\ ``China: Foreign Affairs Magazine Shuttered after Criticism of
North Korea,'' Committee to Protect Journalists, 22 September 04.
\81\ ``Editor Fired for Advocating China's Reform,'' United Press
International, reprinted in Washington Times (Online), 26 October 04.
Authorities later stripped Xiao of his seat on the Guangdong Political
People's Consultative Conference. Leu Siew Ying, ``Former Editor of
`Tong Zhou Gong Jin' Stripped of Political Post,'' South China Morning
Post (Online), 16 March 05.
\82\ ``Central Propaganda Department Criticized by Name, Beijing
University Stopped Jiao Guobiao from Teaching'' [Zhongxuanbu dianming
piping, beida zanting Jiao Guobiao shouke], Sound of Hope Radio
Network, reprinted in Dajiyuan (Online), 9 October 04; ``China Fires
Media Professor Who Called For Press Freedom,'' Radio Free Asia
(Online), 29 March 05.
\83\ Philip P. Pan, ``China Frees Pioneering Journalist,''
Washington Post, 28 August 04, A19.
\84\ ``Lawyer for Several Journalists and Cyberdissidents Harassed
and Facing a Professional Ban,'' Reporters Without Borders (Online), 4
March 05.
\85\ Joseph Kahn, ``China Detains 3 Who Criticized Government,''
New York Times (Online), 14 December 04.
\86\ Hao Keyuan, ``Twelve Big Changes in the Principles of Running
a Newspaper'' [Banbao linian de shier da bianhua], People's Daily
(Online), 25 October 04.
\87\ Ibid.; see also Edward Cody, ``Party Censors Leave Harbin to
Speculate on Corruption Scandal,'' Washington Post, 1 November 04, A13:
One stratagem, they said, is to turn off cell phones and tell their
secretaries to inform callers the boss is out. Another is to keep a
story quiet until 5 p.m., when most censorship bureaucrats leave for
home, and then push it into the paper so the news is out by the time
censors' advice notices are faxed over the next day.
\88\ Liu Yuzhu, ``Positively Facing the Challenge of the Internet
Age'' [Jiji yingdui wangluo shidai de tiaozhan], Seeking Truth
(Online), 1 January 05: ``[W]e should strengthen supervision over
telecommunications operators and Internet service providers, and
request that they assume the responsibility of inspectors and
supervisors. Relevant domestic Web sites should practice strict self-
discipline, should not provide obscene and other illegal content, and
regularly and timely remove harmful information posted by Internet
users.''
\89\ Zheng Qian, ``Professors and Mentors Participate in
Discussions Online: Shanghai University BBS Stop Illegal Rumors.
\90\ Charles Hutzler, ``China Finds New Ways To Restrict Access To
the Internet,'' Wall Street Journal, 1 September 04.
\91\ Zhang Song, ``Underground Market Full of Chaos and Dishonesty,
Why Is It Hard to Administer Private Satellite Installation Despite
Existing Laws? '' [Dixia shichang youluan youhei, sizhuang weixing
dianshi weihe youfa nanzhi?], Economic Information Daily, reprinted in
Xinhua (Online), 6 December 04.
\92\ ``Foreign Newspapers Will Be Allowed to be Printed in China,
Currently No One Has Formally Applied'' [Waiguo baozhi jiang huozhun
zai hua yinshua, muqian hai meiyou yijia tichu zhengshi shenqing],
Beijing News, reprinted in People's Daily (Online), 26 November 04.
\93\ Interim Regulations on the Administration of Sino-Foreign
Joint and Cooperative Ventures in Radio and Television Program
Production Operating Enterprises [Zhongwai hezi, hezuo guangbo dianshi
jiemu zhizuo jingying qiye guanlin zhanxing guiding], issued 28 October
05, art. 12.
\94\ ``New Regulations Surfaced: Foreign Invested Movie,
Television, and Media Corporations Can Only Participate in Joint-
Ventures'' [Xin guiding chutai: waizi yingshi chuanmei zhineng kai
yijia hezi gongsi], Shanghai Morning Post, reprinted in People's Daily
(Online), 7 March 05; Measures on the Administration of Foreign
Satellite Television Channel Reception, issued 1 August 04, art. 12.
\95\ Liu Yuzhu, ``Positively Facing the Challenge of the Internet
Age'' [Jiji yingdui wangluo shidai de tiaozhan], Seeking Truth
(Online), 1 January 05.
\96\ ``Internet Filtering in China in 2004-2005: A Country Study,''
OpenNet Initiative (Online), 14 April 05.
\97\ Xuan Zhaoqiang, ``Monitoring and Controlling Internet Cafe
Information at Anytime: `Thousand-Mile-Eyes' System is Available for
Jinan Internet Cafe Monitoring'' [Suishi jiankong wangba xinxi: Jinan
wangba jianguan youle ``qianliyan''], Hua Dong News, reprinted in
People's Daily (Online), 24 January 05.
\98\ ``Shuimu BBS Makes Adjustments to Become an Internal School
BBS, Beijing University and Other Higher Education BBS Sites Have Also
Already Made Adjustments'' [Shuimu BBS tiaozheng wei xiaonei xing,
beida deng gaoxiao BBS zhan ye yi tiaozheng], Beijing Times, reprinted
in the People's Daily (Online), 19 March 05.
\99\ ``Internet Cafes to Implement Fingerprint Recognition System:
Effectively Prevent Underage Children From Entering Internet Cafes''
[Wangba jiang tui zhiwen shibie: youxiao fangfan weichengnianren jin
wangba], Xinhua (Online), 15 March 05.
\100\ Zhou Wei, Hu Jinwu, ``How Can the Regulation of Internet
Cafes Only Involve the Regulation of Cafes and Not the Internet? ''
[Wangba zhengzhi qineng zhiba bu zhiwang?], Xinhua (Online), 11 October
04.
\101\ ``Information Supplied by Yahoo! Helped Journalist Shi Tao
Get 10 Years in Prison,'' Reporters Without Borders (Online), 6
September 05.
\102\ Ching-Ching Ni, ``Yahoo Accused of Aiding China in Arrest,''
Los Angeles Times (Online), 8 September 05.232 Shi Tao Written
Judgment, Hunan Province Changsha Municipality Intermediate People's
Court, Criminal Written Judgment, Changsha Intermediate Criminal
Division One, Trial in First Instance Document Number 29 (2005), 27
April 05.
\103\ ``In Imprisoning Journalists, Four Nations Stand Out,''
Committee to Protect Journalists (Online), 3 February 05.
\104\ Louise Arbour, the United Nations High Commissioner for Human
Rights, arrived in Beijing on August 29, 2005 for an official visit. On
that day, Chinese police raided the office of the Empowerment and
Rights Institute, a legal and human rights advisory group in Beijing.
The group's director, Hou Wenzhuo, said that the police came to her
home as well, but did not arrest her. Kahn, ``Beijing Police Raid
Rights Group Office.'' Also on that day, Liu Xiaobo, president of the
Independent Chinese PEN Center, wrote an article saying that since the
United Nations High Commissioner for Human Rights arrived in Beijing,
police had been deployed near his house, as well as near the houses of
political theorist Zhang Zuhua and author Liu Di (also known as the
``Stainless Steel Mouse''). ``A High Level Human Rights Official
Arrives, and the Police Once Again Take Up Their Posts'' [Renquan gaoji
guanyuan laile, jingcha you shanggangle], China Information Center Web
site, 29 August 05.
\105\ Benjamin Kang Lim, ``China Frees SARS Hero,'' Reuters, 23
March 05; ``Jiang Yanyong Still Under House Arrest After Being Released
from Prison'' [Jiang yanyong huoshi hou chuyu bei ruanjin zhuangtai],
Radio Free Asia (Online), 14 October 04.
Notes to Section III(f)--Status of Women
\1\ ``Chinese Police Beat Up AIDS Activist During UN Rights
Visit,'' Radio Free Asia (Online), 31 August 05.
\2\ Joseph Kahn, ``Beijing Police Raid Rights Group Office,'' New
York Times, 30 August 05, A9.
\3\ Margaret Woo, ``When Gender Differences Become a Trap: The
Impact of China's Labor Law on Women,'' 14 Yale J.L. & Feminism 69, 71
(2002).
\4\ ``Bias or Protection? Can Women Retire at the Same Age as Men?
'' Xinhua (Online), 29 January 03.
\5\ Law of the People's Republic of China on the Protection of the
Rights and Interests of Women [hereinafter Women's Rights and Interests
Protection Law], enacted 3 April 92, amended 28 August 05.
\6\ Jonathan Hecht, ``The Legal Protection of Women's Rights in
China,'' in Human Rights in China, China Rights Forum (Fall 1995).
Since passage of the Women's Rights and Interests Law, a number of
institutions have been established in China to enable and encourage
women to assert their rights. One example is the Center for Women's Law
and Legal Services of Peking University, founded in December 1995 as
the first center specializing in women's law in China. The Center has
led to the development of a number of other institutions to promote
women's rights, such as the recently founded Web site ``Women's Watch--
China.''
\7\ Women's Rights and Interests Protection Law. See also Chen
Liping, ``Thoroughly Implementing the Women's Law is the Common
Responsibility of the Entire Society'' [Guanche shishi funufa shi quan
shehui gongtong zeren], Legal Daily (Online), 30 August 05; Chen
Liping, ``Interpretation of the Law on the Protection of the Rights and
Interests of Women'' [Jiedu funuquanyi baozhangfa xiugai zhengan],
Legal Daily (Online), 29 August 05; ``China Daily `Opinion' on Draft
Amendments of Women's Rights Laws,'' China Daily (Online), 5 July 05.
The drafting committee said the ten goals of the draft are: to write
the basic national principle of equality between the sexes into law; to
specify which government officials have the duty to enforce the law; to
specify the duties of the All-China Women's Federation (ACWF) at each
level; to increase the number of women in positions of authority in the
government and the Party; to prohibit bias against women in school
admissions; to prevent gender bias in the job market and the workplace,
loss of labor benefits because of special protective labor regulations,
and unequal access to rights and benefits like social security,
welfare, and health insurance; to protect the right of rural women,
regardless of their marital status, to receive land use contracts and
get an equal share of any compensation for expropriated land; to
prohibit sexual harassment, to rescue and rehabilitate trafficking
victims, and to forbid use of ultrasound to determine fetal sex for
purposes of non-medical abortion; to clarify the responsibility of the
police, the government, and the judiciary to eliminate domestic
violence and provide for the rescue and rehabilitation of victims; and
to clarify the administrative, civil, and criminal responsibility of
those who break the Women's Rights and Interests Protection Law, as
well as to provide legal assistance for women seeking redress under it.
See also Rong Jiaojiao, ``Law to Catapult Women's Rights into the New
Century,'' China Daily (Online), 12 August 05.
\8\ Women's Rights and Interests Protection Law, art. 40. See also,
``Sexual Harassment Law Gives Hope to Women Suffering in Silence,''
South China Morning Post (Online), 8 August 05; ``China Outlaws Sexual
Harassment,'' Xinhua (Online), 29 August 05; ``Women who Encounter
Sexual Harassment Have the Right to Complain to their Work Unit and
Relevant Departments'' [Zao xingsaorao nuxing youquan xiang danwei he
youguan jiguan tousu], People's Daily (Online), 23 August 05. However,
some commentators have noted that the term ``sexual harassment'' is not
defined in the law. ``Those Who Sexually Harass to Be Legally Liable;
But Outlines of Offense Still Unclear'' [Xingsaoraozhe jiang bei
zhuijiu falu zeren; jieding chidu reng wu biaojun], Xinhua (Online), 29
August 05.
\9\ ``China Issues White Paper on Gender Equality and Women's
Development'' [`Zhongguo xingbie pingdeng yu funu fazhan zhuangkuang'
baipishu zhichu], China Legal Information (Online), 24 August 05, The
white paper cites many facts and figures to show improvements achieved
in the status of women, although other research shows continued
inequality in access to political power, education, healthcare,
employment opportunity, and property. Wang Ying, ``Gender Inequality
Serious in Rural Areas,'' China Daily (Online), 8 September 05
(describing research by Professor Li Xiaoyun in ten poor villages in
2005).
\10\ ``PRC Official Discusses Improvements in Women's Status at
World Conference,'' Xinhua (Online), 30 August 05.
\11\ ``Hu Jintao Addresses Beijing Meeting on Anniversary of World
Conference on Women,'' Xinhua (Online), 29 August 05.
\12\ Guowuyuan funuertong gongzuo weiyuanhui, currently chaired by
Vice Premier Wu Yi. The Committee's Web site is at <http://
www.nwccw.gov.cn/>.
\13\ Zhonghua chuanguo funulianhehui, currently led by Huang
Qingyi. The Federation's Web site is at < http://www.women.org.cn/>.
\14\ See, for example, the manual entitled All-China Women's
Federation Compilation of Laws Relating to Women and Children (April
2002). Recent progress on establishing hotlines and local legal
assistance centers for women facing domestic violence is touched on in
``One Fifth of Women Convicts in Yunnan Jailed Because of Retaliation
Against Abusive Spouses'' [Yunnan sheng nufan liangcheng yin jiating
baoli fanzui], Chuncheng Evening News, reprinted in Xinhua (Online), 19
August 05.< http://www.yn.xinhuanet.com/newscenter/>. See also ``Ten
Years of Work on Gender Equality in Yunnan: More than 600 Projects''
[Yunnan sheng nannu pingdeng gongzuo 10 nian chunhua qiushi: 600 duo
xiangmu], Chuncheng Evening News, reprinted in Xinhua (Online), 3
August 05.
\15\ ``Program for the Development of Chinese Women'' [Zhongguo
funufazhan gangyao], Xinhua (Online), 3 September 03. The Program and
some discussion of its contents are posted on the China Women's Net.
\16\ See Section III(i)--Population Planning. As a mass line
organization, the ACWF is dominated by Party members and functions to
convey and implement Party policies among the people. The ``One Child
Policy,'' although now expressed in a national law, was originally
promulgated as Party policy and remains a key element of Party policy.
It should be noted that article 7 of the amended Women's Rights and
Interests Protection Law specifies that all levels of the ACWF have the
affirmative duty to protect women's rights and interests.
\17\ Successful projects to protect women's rights have also been
run by the Guangdong Women's Federation Legal Services Center and the
Shaanxi Province Research Association for Women and the Family, founded
in 1988.
\18\ Ma Jianxiong, ``Sex Ratio, Marriage Squeeze, and Ethnic
Females Marriage Migration in China'' [Xingbiebi, hunyin jizhuang yu
funuqianyi], Journal of Guangxi Universities for Nationalities, Vol.
26, No. 4, July 2004. International trafficking particularly harms
women and girls, as evident in the estimates cited in the State
Department's 2005 Report on trafficking that of the 600,000 to 800,000
victims trafficked each year, 80 percent are women and up to 50 percent
minors. Trafficking in Persons Report, June 2005, available on the
Department of State Web site, 6. The United States Trafficking Victims
Protection Act of 2000, as amended in 2003 [hereinafter TVPA] requires
the State Department to cover ``countries of origin, destination, or
transit for a significant number of victims of severe forms of
trafficking.'' Ibid., 26. The Trafficking in Persons reports assign the
countries covered to one of three tiers based on their compliance with
the TVPA's minimum standards for combating trafficking. Ibid, 29. In
order to indicate trends in trafficking and efforts to fight it, the
TVPA was amended in 2003 to add a fourth category, the ``Tier 2 Special
Watch List,'' which focuses special attention on countries that are
making efforts to cope with trafficking but need to do more. The 2005
Trafficking in Persons Report puts China in the Tier 2 Special Watch
List because of its failure to provide evidence of increased efforts to
cope with trafficking, especially of victims trafficked to Taiwan and
North Koreans trafficked into China and forcibly repatriated. Ibid.,
83-84.
\19\ Cindy Sui, ``Baby Trafficking in PRC's Rural Areas
`Widespread,'' Agence France-Presse (Online), 5 February 05.
\20\ Yunnan Provincial Women's Federation, in collaboration with
Yunnan Provincial Bureau of Statistics, the Bureau of Statistics,
Education Commission, and Justice Bureau of Jiangcheng and Menghai
Counties, Yunnan Province, ``China Situation of Trafficking in Children
and Women: A Rapid Assessment'' (August, 2003) (sponsored by ILO Mekong
Sub-Regional Project to Combat Trafficking in Children and Women (IPEC-
TICW).
\21\ ``Yulin: 28 Baby Girls Drugged and Stuffed Into Plastic Bags
for Shipping,'' Xinhua (Online), 31 May 04; ``Baby Business,'' China
Daily (Online), 28 October 03. Several of the traffickers in this case
were sentenced to death. ``Infant Trading Gang Given Death Sentence,
Jail Terms,'' Xinhua (Online), 30 November 03. Police have recently
broken up similar gangs trafficking dozens of young babies and children
in Henan province, ``Woman Sentenced to Death in China for Trafficking
Babies,'' Agence France-Presse (Online), 19 June 04, and ``Baby
Traffickers in China Shift Focus to Girls,'' South China Morning Post
(Online), 4 August 05; Hohot in Inner Mongolia, ``China Halts Baby
Trafficking Ring,'' BBC News (Online), 13 July 04<http://
news.bbc.co.uk>; Putian city in Fujian, ``Police Make Arrests in China-
Burma Baby Trafficking Case,'' Agence France-Presse (Online), 3
February 05; and Kunming city in Yunnan, ``Yunnan Baby Trafficking Gang
Jailed,'' Xinhua (Online), 14 August 2003; ``Police Smash Women,
Children Trafficking Gang in SW China,'' Xinhua (Online), 15 November
2003.
\22\ Relevant criminal provisions are included in Chapter IV of the
PRC Criminal Law, Crimes of Infringing Upon Citizens' Right of the
Person and Democratic Rights, especially arts. 240, 241, and 242. PRC
Criminal Law, enacted 1 July 79, amended 1 October 97, 14 March 97, 25
December 99, 31 August 01, 29 December 01, 28 December 02.
\23\ Yunnan Province Women's Federation, in collaboration with
Yunnan Provincial Bureau of Statistics, Bureau of Statistics, Education
Commission, and Justice Bureau of Jiangcheng and Menghai Counties,
Yunnan Province, China Situation of Trafficking in Children and Women:
A Rapid Assessment, (August, 2003) (sponsored by ILO Mekong Sub-
Regional Project to Combat Trafficking in Children and Women (IPEC-
TICW).
\24\ PRC Criminal Law, art. 240. One commentator, Zhu Jianmei,
seeks further revision because, as a result of these changes, the
trafficking of boys over 14 and other similarly powerless victims is
relegated to the much milder crime of ``Unlawful Detention.'' PRC
Criminal Law, art. 238. Zhu also argues that coercive trafficking of
women into the sex trade and raping trafficked women should be separate
crimes rather than just aggravating circumstances to a basic
trafficking offense. ``Several Issues Concerning the Crime of
Trafficking in Women and Children'' [Guaimai funuertong zui de jige
wenti], Journal of Jiangsu Public Security College, March 2004, 57-61.
The relevant provisions of the PRC Criminal Code are Articles 238, 239
and 240. See also Tao Ziqiang and Yang Jionghong, ``How Should We
Handle the Crime of Trafficking a Boy Over 14? '' [Guaimai shisi sui
yishang nanxing ruhe dingzui?], Procuratorial Daily (Online), 16
February 04.
\25\ UNICEF, ``Abuse, Exploitation and Trafficking of Children in
East Asia,'' in UNICEF East Asia and the Pacific Regional Office
Presentation, cited in UNICEF, End Child Exploitation, July 2003, 10-
11, 35.
\26\ ``Over 50,000 Trafficked Women and Children Rescued by Police
Over Four Years,'' [Sinianjian chuanguo gonganjiguan jiejiu bei guaimai
funuertong 5 wan duo ren], Shanxi Evening News (Online), 18 August 05.
The author of this article seems to have acquired the statistics from
the Fourth National Meeting on Women's and Children's Work, held on
August 15-16, 2005. For comparison, a police report covering the years
from 2001 to 2003 said 42,215 victims had been rescued during that
period. Tian Yu, ``Chinese Police Rescue 42,215 Women and Children over
Three Years'' [Woguo gong'an jiguan sannian jiejiu bei guaimai funu
ertong 42,215 ren], Xinhua (Online), 2 March 04. It is difficult to
ascertain the degree of overlap between the two reports. Statistics
announced at a conference held in Guangxi in August 2005 to commemorate
the 1995 Conference on Women in Beijing claim that a crackdown on
trafficking across the border with Vietnam resulted in the rescue of
1800 victims over the course of five years. ``Guangxi Strikes Hard at
Cross-Border Crime of Trafficking in Women and Children,'' [Guangxi
yanda kuaguo guaimai funu ertong fanzui], China Radio International
(Online), 25 August 05.
\27\ Yan Wei, ``Countries Strike Back--Stamping Out the Trafficking
of Women in South and Southeast Asia Needs a Tougher, More Strategic
Approach,'' Beijing Review (Online), 1 July 05.
\28\ Ibid.
\29\ Alice Yan, ``Beijing Women's Federation: Women Still Lag,
Despite Jiang's Promise of Job Equity,'' South China Morning Post
(Online), 5 August 05; ``Report on the Rights of Women Workers in the
Workplace'' [Guanzhu nugong quanyi chuangkuang], Workers' Daily
(Online), 5 April 05.
\30\ State Council Women's Development Program, 2001-2010 [Zhongguo
funufazhan gangyao, 2001-2010], May 2001; see also ``Plan for
Implementation of the Women's Development Program, 2001-2010'' [Guanche
luoshi funufazhan gangyao, 2001-2010], China Education Online, 11
September 03
\31\ State Council Women's Development Program, 2001-2010.
\32\ Ibid.; see also recent research led by professor Li Xiaoyun of
the China Agricultural University, ``Gender Inequality Serious in Rural
Areas,'' China Daily (Online), 8 September 05; ``Inequality in Town and
Countryside: Still Obstacles for Girls' Education'' [Chengxiang bu
pingdeng: nutong shou jiaoyu reng cun fang'ai], China Education News
(Online), 15 August 05.
\33\ Country Team China, United Nations, Common Country Assessment
2004, 59.
\34\ ``Becoming the Ideal Support in the Wing--On Women's Right to
Education'' [Wei lixiang chashang chibang--guanyu funu jiaoyu quanli],
Ningbo Government Net (Online), 6 December 04. Premier Wen Jiabao has
recently reaffirmed the need to address gender inequalities in health
and education in China. ``Chinese Premier Wen Jiabao Emphasizes
Protecting Rights of Women, Children,'' Xinhua (Online), 16 August 05.
\35\ Amy Phariss and Drew Thompson, ``Women and HIV/AIDS in
China,'' conference hosted by the CSIS Freeman Chair in China Studies,
1 December 04.
\36\ ``Sex Ratio of HIV Carriers Reaches 2:1,'' Xinhua (Online), 7
July 05.
\37\ Phariss, Thompson, ``Women and HIV/AIDS in China.''
Notes to Section III(g)--The Environment
\1\ ``Pollution, Urbanization Threaten Health of East Asian People:
World Bank,'' Xinhua (Online), 22 April 05. ``Polluted Fog Leaves a
City Gasping,'' South China Morning Post, 8 April 05 (FBIS, 8 April
05). ``Those Hazy Days of Spring in Beijing,'' South China Morning
Post, 7 April 05 (FBIS 7 April 05). ``China's Environmental Suicide,''
New Delhi Swadeshi Patrika, 1 May 05 (FBIS 6 July 05).
\2\ ``China To Build Wind Farms Offshore,'' China Daily (Online) 16
May 05.
\3\ ``Reckless Human Activity Blamed for Frequent Mountain
Torrents,'' Xinhua (Online), 23 June 05. ``World Research Group on
Erosion Founded in China,'' People's Daily (Online), 20 October 04.
\4\ ``Growth Leaves Country High and Dry,'' China Daily (Online),
28 December 04; ``Thirsty Countryside Demands Safe Water,'' Ministry of
Water Resources Web site, 23 March 05.
\5\ ``Clean Energy Crunch Time,'' Beijing Review (Online), 31 March
05; ``China Drafts Vision 2010 for Cyclical Economy,'' People's Daily
(Online), 26 May 05.
\6\ ``China, U.S. Launch Program to Reduce Vehicle Emissions,''
Agence France-Presse, 17 November 04 (FBIS, 17 November 04); ``Deputy
Secretary Zoellick Unveils Asia-Pacific Energy Initiative,'' U.S.
Department of State (Online), 28 July 05; ``EU and China Partnership on
Climate Change,'' EUROPA (Online), 2 September 05.
\7\ ``Delays Hit Treatment Facilities on Water Line,'' South China
Morning Post (Online), 23 March 05; National Development and Reform
Commission, Full Text: Report on China's Economic and Social
Development Plan, People's Daily (Online), 15 March 05.
\8\ ``Those Who Violate Environmental Law will Increasingly Be
Criticized by Name'' [Weifan huanjing fagui yihou dianming piping hui
yuelaiyue duo], People's Daily (Online), 1 June 05.
\9\ Ibid.
\10\ ``All 30 Law-Breaking Projects Building Stopped,'' China Daily
(Online), 3 February 05; ``Environmental Bureau Issues Notice of Fine
and Demand for Corrective Measures to Three Gorges Corporation''
[Guojia huanbao zongju xiang san xia zonggongsi fachu xianqi zhenggai
he xingzheng chufa tongzhishu], Beijing News (Online), 1 February 05;
``Recast: China Blacklists 46 Thermal Power Plants for Threatening
Environment,'' Xinhua (Online), 27 January 05.
\11\ ``China Halts Construction of Six Large Aluminum Projects,''
Xinhua (Online), 28 April 05; ``Old Summer Palace Must Complete an
Environmental Impact Assessment in 40 Days'' [Yuanmingyuan jiao
huanping xianqi 40 tian], Beijing News (Online), 9 May 05.
\12\ ``The `Environmental Assessment Storm' Is Normal Enforcement
of the Law'' [``Huan ping fengbao'' shi zhengchang zhifa jiandu],
Beijing News (Online), 14 March 05. SEPA's focus appears to be on
increasing sanctions and fines for government officials and industry
leaders when they fail to comply with environmental laws.
\13\ ``Those Who Violate Environmental Law Will Increasingly be
Criticized by Name,'' People's Daily; ``Public Interest Litigation:
Environmental Suits--The Tool To Resolving Problems, But Which Hasn't
Taken Off Yet'' [Gongyi susong: huanbao guansi jiekun zhi men jiang qi
wei qi], 21st Century Business Herald (Online), 5 February 05; ``An
Example of a Difficult Environmental Lawsuit: The People on the
Outskirts of the Yellow Phosphorous Factory'' [Yi ge huanjing susong
kunjing yangben: huanglin chang zhoubian de naxie renmin], 21st Century
Business Herald (Online), 5 February 05. Senior SEPA officials have
expressed support for a system allowing environmental NGOs, not merely
state prosecutors, to bring lawsuits on behalf of the public.
\14\ ``Those Who Violate Environmental Law Will Increasingly be
Criticized by Name,'' People's Daily. SEPA officials are currently
coordinating revisions of the Water Pollution Prevention Law. ``The
National People's Congress is Going to Use Legislation to Endow People
With Environmental Rights'' [Quanguo ren da jiang lifa fuyu gongmin
huanjing quan], Xinhua (Online), 1 June 05.
\15\ ``Environmental Protection Fund Worthy,'' China Daily
(Online), 3 February 05. The effectiveness of the proposal will depend
on management of funds and assessment of taxes and adjusted prices that
is free from favoritism or unfair bias.
\16\ ``Foreign Investment Welcomed in Environmental Protection,''
Xinhua (Online), 18 May 05. ``Let Investors Help With Environment
Protection,'' China Daily (Online), 29 April 05.
\17\ ``Beijing Will Begin Experimenting With Green GDP This Year''
[Luse GDP Beijing shidian jinnian qidong], Beijing News (Online), 1
March 05; ``The `Environmental Assessment Storm' is Normal Enforcement
of the Law,'' Beijing News.
\18\ ``China Dedicated to Realizing `Green Growth:' Official,''
Xinhua (Online), 28 March 05; ``SEPA Vice Director Pan Yue: The Summer
Palace Incident Is Only the Beginning'' [Guojia huanbao zongju fu
juzhang Pan Yue: Yuanmingyuan shijian zhi shi yi ge kaishi], Southern
Daily (Online), 18 April 05; ``Growing From Grassroots: Environmental
NGOs Are Having a Growing Impact on Development,'' Beijing Review
(Online), 25 November 04; ``Chinese College Students Work in NGOs For
Environmental Protection,'' Xinhua (Online), 27 March 04.
\19\ ``SEPA Vice Director Pan Yue: The Summer Palace Incident Is
Only the Beginning,'' Nanfang Daily; ``Chinese Public Want Greater Say
on Environmental Issues,'' Xinhua (Online), 12 April 05.
\20\ ``73 People Obtain Permission to Participate in the Old Summer
Palace Public Hearing'' [73 ren huozhun canjia Yuanmingyuan
tingzhenghui], Beijing News (Online), 13 April 05.
\21\ SEPA officials used the controversy to highlight problems with
enforcement of the Environmental Impact Assessment (EIA) Law and work
to address weaknesses in the EIA industry. ``Those Who Violate
Environmental Law will Increasingly Be Criticized by Name,'' People's
Daily; ``SEPA to Re-Organize 800 Environmental Impact Assessment
Bodies'' [Huanbao zongju zhengsu 800 jia huanping jigou], 21st Century
Business Herald (Online), 23 May 05; ``Since the Environmental Impact
Assessment (EIA) Body Did Not Accept the Old Summer Palace Assessment
Project, the Statutes of the Environmental Impact Assessment Law Will
Be Examined for Deficiencies'' [Cong huanping jigou bu jie Yuanmingyuan
de hua kan huanping fa falu queshi], Chinalaw.Net (Online), 13 May 05.
\22\ ``The National People's Congress is Going to Entrust Citizens
With Environmental Rights,'' Xinhua.
\23\ ``Renewable Resources Law Released--China Is Undertaking
Resource Reform'' [Ke zaisheng nengyuan fa chutai--zhongguo jinxing
nengyuan geming], 21st Century Business Herald (Online), 2 March 05.
\24\ ``Growing From Grassroots: Environmental NGOs Are Having a
Growing Impact on Development,'' Beijing Review.
\25\ Environmental NGOs in China: Encouraging Action and Addressing
Public Grievances, Staff Roundtable of the Congressional-Executive
Commission on China, 7 February 05, Written Statement and Testimony of
Elizabeth Economy, C.V. Starr Senior Fellow and Director of Asia
Studies, Council on Foreign Relations.
\26\ ``Government Turns Up NGO Volume,'' China Daily (Online), 26
April 05; ``New NGO Founded To Rally All Chinese People Against
Worsening Pollution,'' Xinhua (Online), 23 April 05.
Notes to Section III(h)--Public Health
\1\ Cao Haidong and Fu Jianfeng, ``20 Years of Health Care Reform
in China'' [Zhongguo yigai 20 nian], Southern Daily (Online), 5 August
05;, 19562 ``Chinese Red Cross Sets Up Charity Fund To Help Rural Poor
With Medical Bills,'' China Daily (Online), 11 August 05; Ofra Anson
and Shifang Sun, Health Care in Rural China (Ashgate, Aldershot, Hants,
2005), 15-17.
\2\ ``Cooperative Medicare System Helps Prevent Farmers Becoming
Poorer,'' China's Human Rights (Online), 7 January 04. http://
www.humanrights-china.org/.
\3\ See, e.g., ``Nearly 2 Million Farmers in Heilongjiang Benefit
From New Rural Cooperative Medical Scheme,'' Heilongjiang Daily, 15
April 05 (FBIS, 16 April 05).
\4\ Yu Tianu and Jin Rongsheng, ``New Rural Cooperative Medical
Scheme Warmly Received by Farmers in Liaoning's Youyan Autonomous
County,'' Liaoning Daily, 18 April 05 (FBIS, 14 May 05).
\5\ A pilot program of rural medical cooperatives instituted in
Qinghai in 2004 was expanded in 2005, and the number of rural citizens
covered rose from 2 to 3 million. In Qinghai, the effort to establish
basic-level health care through these cooperatives was led by the
Provincial Leading Group for Rural Health Work. ``Qinghai Province
Plans to Expand Coverage of New Rural Cooperative Medical Scheme by End
of 2005,'' Qinghai Daily, 16 April 05 (FBIS, 14 May 05). On May 20,
2005, the governor and Party of Hainan announced a project to expand
the rural co-op scheme to all residents by 2010, as well as to build a
few high-standard general and special hospitals on the island. ``Hainan
Governor Wei Liucheng Chairs Meeting on Construction of Township, Town
Medical Centers,'' Hainan Daily, 21 May 05 (FBIS, 30 May 05).
\6\ ``With the Help of Rural Medical Coops, Farmers in Jiangjin,
Chongqing Speed Towards Prosperity'' [Nongcun hezuo yiliao bangzhu
Chongqing Jiangjin nongmin ben qianmian xiaokang], Chongqing City
Statistics Bureau Web site, <http://www.stats.gov.cn/>, 3 June 05.
\7\ ``Farmers in Sichuan Province Speak Highly of New Rural Medical
Cooperative System,'' Sichuan Daily, 22 April 05 (FBIS, 14 May 05); see
also ``China to Promote Rural Cooperative Medical System,'' Xinhua
(Online), 10 August 05.
\8\ ``Expert Says China's Medical Reform `Basically Not
Successful,' '' Xinhua (Online), 29 July 05; Josephine Ma, ``Think-tank
Lashes the Mainland's Health Care,'' South China Morning Post (Online),
30 July 05; ``Health Ministry Says Rural Medical System Still Facing
Several Major Problems,'' China Daily (Online), 4 July 05; ``A Half-
Baked Reform Leaves Patients Unsatisfied, Hospitals Unsatisfied,
Government Unsatisfied'' [Huanzhe, yiyuan, zhengfu wuren manyi; yigai
zhaishengfan; yuan zi liang dian mixin], Xinhua (Online), 4 August 05;
``State Must Lead Medical Reforms,'' China Daily (Online), 4 August 05
(citing Yanzhao Metropolis Daily); ``Gao Qiang, Minister of Health,
Urges More Investment in Health Care'' [Wesiheng buzhang Gao Qiang:
Zhengfu ying jiada yiliao touru], Number One Economic Daily (Online), 5
August 05; Wang Zhenghua, ``Hospitals Overcharge Patients for
Profits,'' China Daily (Online), 5 August 05; ``PRC Health Ministry
Report Details `Serious Problems' Facing Sector,'' Agence France-Presse
(Online), 5 August 05; ``Gaps Within Troubled China's Health Sector,''
Xinhua (Online), 8 August 05; ``Heated Disputes Over Privatization:
Rethinking China's Healthcare Reform'' [Jibian ``shichanghua'' Zhongguo
yigai fanse yu chulu], 21st Century Economic Journal, 8 August 05;
``Health Reform Plan to be Launched By End of the Year'' [Yigai xin
fang'an huo niandi qidong], Beijing News (Online), 8 August 05; ``China
Premier Under Fire Over Rising Medical Costs,'' Reuters (Online), 11
August 05; ``Half of all Children Who Die of Illness in the Countryside
Had Not Received Medical Treatment'' [Wo guo yin bing siwang de nongcun
ertong reng you yiban wei dedao yiliao], People's Daily (Online), 17
August 05; ``What are the Root Problems of Healthcare Reform? '' [Yigai
de sixue zai nar?], Southern Weekend (Online), 18 August 05; ``China's
Health Care System is Sick: Patients' Complaints Mount up, Many Turn to
Violence'' [Zhongguo yiliao xitong bingle; huanzhe tousu jizeng;
shiyong baolizhe zhong], Asia Times (Online), 18 August 05; ``Fujian
Suicide Bombing: A Wake-up Call for Health-care Reform? '' South China
Morning Post (Online), 18 August 05; Zhang Feng, ``Rural Kids `Need
Better Healthcare,' '' China Daily (Online), 18 August 05; ``China's
Exorbitant Healthcare Fees Spark Suicides,'' Reuters (Online), 18
August 05. See also David Blumenthal and William Hsiao, ``Privatization
and it Discontents--The Evolving Chinese Health Care System,'' 353 New
England Journal of Medicine 1165 (15 September 05).
\9\ ``Health Ministry Says Rural Medical System Still Facing
Several Major Problems,'' China Daily.
\10\ ``Half of All Farmers Do Not Seek Care for Illness'' [Zhongguo
nongmin yiban kanbuqi bing], Beijing News (Online), 6 November 04;
``Half of All Children Who Die of Illness in the Countryside Had Not
Received Medical Treatment,'' People's Daily.
\11\ ``Half of All Children Who Die of Illness in the Countryside
Had Not Received Medical Treatment,'' People's Daily.
\12\ ``China's Children Severely Malnourished,'' China Youth Daily
(Online), 7 July 05.
\13\ ``China Ranks Second in World in Terms of TB Patients; Nearly
10,000 People in Guangxi Die of Tuberculosis Every Year,'' Wen Wei Po,
24 Mar 05 (FBIS, 27 March 05).
\14\ ``Zhejiang's TB Incidence Noticeably Rises,'' Zhejiang Daily,
24 Mar 05 (FBIS, 27 March 05).
\15\ ``Jiangxi To Fulfill Tuberculosis Control Task in 2005,''
Jiangxi Daily, 25 March 05 (FBIS, 27 March 05).
\16\ ``Experts Say Infectious Diseases Biggest Biological Threat to
Modern China,'' China Daily (Online), 6 April 05.
\17\ UNICEF, ``At a Glance--China,'' available on the UNICEF Web
site. The report indicates that over 90 percent of all one-year-olds
were fully immunized against TB, DPT3, and polio and 84 percent were
fully immunized against measles in 2003. On March 16, 2005, the State
Council issued the Regulation on the Management of the Circulation of
Vaccines and Preventive Inoculations [Yimiao liutong he yufang guanli
tiaoli], issued 24 March 05, providing for free provision to citizens
of the vaccines specified under the State Immunization Plan.
\18\ ``China's Immunization Scheme Makes Progress Amid Problems,''
Xinhua (Online), 8 June 05.
\19\ A total of 30,017 measles cases resulting in 20 deaths were
reported in the first quarter nationwide. The number of cases and
mortality rate are significantly higher than those reported for the
same period in 2004. Most victims are pre-school age children.
``Infectious Disease Data, 1st Quarter, 2005,'' Ministry of Health, 4
April 05 (FBIS, 1 June 05).
\20\ Ibid.; see also ``Migrant Workers Get Vaccines,'' China Daily
(Online), 25 December 03. This article reports on the administration of
free vaccinations to migrant workers in Beijing. It cites Li Guoying,
an official with the Municipal Disease Control and Prevention Centre,
as saying that most of the 800,000 rural migrants in Beijing at the
time had never been vaccinated before due to weak rural health care.
\21\ ``Anhui Province Issues Report on Epidemic Situation in First
Quarter of 2005,'' Anhui Daily, 21 April 05 (FBIS, 14 May 05). 13618.
\22\ ``Experts Urge Government To Improve Vaccination Program
Against Hepatitis B,'' China Daily (Online), 18 July 05.
\23\ ``PRC Public Opinion Defeats Hepatitis B Virus
Discrimination,'' China Net (Online), 23 September 04.
\24\ PRC Law on the Prevention and Control of Infectious Diseases,
enacted 29 February 89, amended 28 August 04. See also CECC, 2004
Annual Report, 61. China's first hepatitis B health discrimination case
was filed by Zhang Xianzhu in 2003 when his application to work for the
city of Wuhu in Anhui province was rejected because of the illness.
Although the court in that case held for Zhang, it did not invalidate
the underlying regulation that prohibited the hiring of hepatitis
carriers. The amended national law should prevent such discrimination
in the future.
\25\ ``China Pushes for AIDS Legislation,'' China News Agency, 3
July 05 (FBIS, 5 July 05)19889; Jasper Becker, ``AIDS in Asia: China
Becomes Proactive,'' San Francisco Chronicle (Online), 9 February 04.
\26\ ``PRC State Council Sets Steps for Fighting AIDS at Meeting
With Wen Jiabao Presiding,'' Xinhua (Online), 15 June 05. See also
UNICEF--China, ``For Every Child: Progress Report for UNICEF-China,
2003/2004'' (2005), 5.
\27\ ``PRC State Council Sets Steps for Fighting AIDS at Meeting
With Wen Jiabao Presiding,'' Xinhua (Online), 15 June 05. The same
meeting added ``it is necessary to strengthen the building of the legal
system for the prevention and control of AIDS and standardize and give
guidance to the prevention and control of AIDS according to law and in
an orderly manner.''
\28\ ``AIDS Prevention Classes Included in University,'' Agence
France-Presse (Online), 10 September 04; but see ``Students Find Sex
Education Inadequate,'' China Daily (Online), 26 July 04; Bao Xinyan,
``Jiangsu Intensifies AIDS Prevention,'' China Daily (Online), 2 August
04.
\29\ ``Hubei Province Issues Preemptive Plan for Prevention and
Control of Occupational Exposure to AIDS Virus,'' Hebei Daily, 18 May
05 (FBIS, 30 May 05).
\30\ ``HIV/AIDS Controversy at the Central Party School''
[Zhongyang dangxiao de aizi guannian jiaofeng], Southern Weekend
(Online), 23 June 05.
\31\ ``Yunnan Province Holds Seminar for Provincial Leading Cadres
on Drug Control and AIDS Prevention,'' Yunnan Daily, 2 May 05 (FBIS, 30
May 05).
\32\ ``Jiangxi Province Draws up Plan for Province-Wide Propaganda
and Education Campaign on AIDS Prevention and Control,'' Jiangxi Daily,
21 May 05 (FBIS, 30 May 05).
\33\ ``Free Education for HIV Children in Guangdong,'' Shenzhen
Daily (Online), 19 January 05; ``HIV Rate Soars in Southern China
City,'' United Press International (Online), 30 March 05.
\34\ ``China to Fight AIDS With Free Condoms, Needle Exchanges,''
Associated Press (Online), 8 June 05; ``New Ministry of Health
Prostitute, Addict AIDS Plan `Controversial,' '' China Daily (Online),
13 June 05; Edward Cody, ``In China, an About-Face on AIDS Prevention:
Once-Reluctant Government Increasingly Promoting Efforts to Battle
Spread of Disease,'' Washington Post (Online), 8 December 04.
\35\ Fu Jing, `` `Hospital on Wheels' to Offer Farmers Health
Care,'' China Daily (Online), 2 August 04; ``Taking Affordable Medical
Service to Farmers,'' China Daily (Online), 11 June 05.
\36\ Zhang Feng, ``HIV/AIDS Proposals Announced for 2005,'' China
Daily (Online), 19 March 05.
\37\ Zeng Liming, ``Yunnan Plans To Give HIV Tests to Targeted
Groups of 300,000 in 2005,'' Xinhua (Online), 14 June 05 (FBIS, 14 June
05). Similar rules are in effect in Henan province. ``Health Checks for
Sex Workers--Boon or Bane? '' Beijing Review (Online), 7 April 05.
\38\ ``Chinese Province Wants Its Hospitality HIV-Tested,''
Associated Press, reprinted in Lexis-Nexis, 23 March 05.
\39\ Human Rights Watch, Restrictions on AIDS Activists in China,
June 2005, 19; International Federation for Human Rights, Alternative
Report to the Committee on Economic, Social and Cultural Rights: China:
`At a Critical Stage,' Violations of the Right to Health in the Context
of the Fight Against AIDS, April 2005.
\40\ Pierre Haski, ``A Report from the Ground Zero of China's AIDS
Crisis,'' Yale Global (Online), 30 June 05.
\41\ ``NGOs Active in China's Fight Against AIDS,'' China Daily
(Online), 20 June 04.
\42\ See, e.g., Ministry of Health and Bureau of State Secrets
Explanation on the Regulation on the Specific Scope of the National
State Secrets Law and Classification of State Secrets in Health Work,
issued 1 March 91.
\43\ ``Highlights: PRC Domestic Public Health Topics 2 -- 30 May
05,'' Foreign Broadcast Information Service, 30 May 05 (FBIS, 19 May,
2005) (citing the Jiangxi Daily, 19 May 05).
\44\ Many news stories refer to the Chinese authorities' tendency
to hide or downplay disease outbreaks. ``China Defends Failure to
Report Hoof and Mouth Disease Outbreak,'' Xinhua (Online), 30 May 05;
``China Denies Foot and Mouth Disease in Beijing Suburbs,'' Wen Wei Po,
24 May 05; Zhao Huanxin, ``Bird Flu Outbreak in Qinghai An `Isolated'
Case,'' China Daily (Online), 25 May 05; ``Report: Local PRC Media
Reveal Meningitis Outbreak in December,'' Foreign Broadcast Information
Service, 7 February 05 (FBIS, 7 February 05); ``Let's Talk About Pork--
and All Food Safety,'' South China Morning Post (Online) 18 August 05.
A quick-moving and virulent strain of pig-borne streptococcus sickened
215 humans and caused 39 fatalities in Sichuan province in July 2005.
Only after the Chinese health authorities had completed their own
investigations were they willing to share their results with the World
Health Organization (WHO). ``Outbreak Associated With Streptococcus
Suis in Pigs in China: Update,'' World Health Organization Newswire, 16
August 05; ``Media Blackout as Pig-Borne Disease Spreads,'' Radio Free
Asia (Online), 2 August 05.
\45\ Alan Sipress, ``Bird Flu Drug Rendered Useless,'' Washington
Post (Online), 18 June 05.
\46\ Debora MacKenzie, ``China to Stop Using Human Drug on
Poultry,'' The New Scientist (Online), 22 June 05.
\47\ Alan Sipress, ``China Denies Promoting Use of Drug on
Chickens,'' Washington Post (Online), 22 June 05.
\48\ Shi Ting and Vivien Cui, ``PRC Teams To Ensure Anti-Viral
Drugs Not Used on Poultry,'' South China Morning Post (Online), 22 June
05.
\49\ ``Recombinomics Commentary,'' Recombinomics Web site, 9 July
05.
\50\ Alan Sipress, ``China Has Not Shared Crucial Data On Bird Flu
Outbreaks, Officials Say,'' Washington Post (Online), 19 July 05.
Notes to Section III(i)--Population Planning
\1\ PRC Population and Family Planning Law, enacted 29 December 01;
Beijing Declaration and Platform for Action (1995), para. 17; Cairo
International Conference on Population and Development (1994),
Programme of Action of the International Conference on Population and
Development, para. 72.
\2\ PRC Population and Family Planning Law, enacted 29 December 01,
art. 41.
\3\ ``Rights Defender Chen Guangcheng Released, But Remains Under
Police Surveillance,'' Chinese Rights Defenders' Information Bulletin
(Online), 8 September 05; Philip P. Pan, ``Rural Activist Seized in
Beijing,'' Washington Post (Online), 7 September 05 (reporting violent
seizure of Chinese activist against abuses in enforcement of one child
policy); Philip P. Pan, ``Who Controls the Family? '' Washington Post
(Online), 27 August 05 (discussing Chinese activist collecting
testimony of abuses in one child policy enforcement in preparation for
class-action lawsuit against population control officials); ``The One-
Child Policy: Stripping Away Human Rights in the Name of the State,''
Laogai Research Foundation (Online), 16 June 05; Better Ten Graves Than
One Extra Birth: China's Systemic Use of Coercion to Meet Population
Needs (Washington, D.C.: Laogai Research Foundation, 2004); Thomas
Scharping, Birth Control in China, 1949-2000: Population Policy and
Demographic Development (New York: Routledge, 2002); John S. Aird,
Slaughter of the Innocents: Coercive Birth Control in China
(Washington, D.C.: AEI Press, 1990). In July 2005, a Hong Kong woman,
pregnant with her third child, was visiting relatives in Shanghai. When
local population control officials saw her with her two other children,
they immediately attempted to take her--by force--to a local
government-run abortion clinic. She protested that she was not from
China to no avail. Only the physical intervention of her relatives
prevented a forced abortion. ``PRC Tries to Force HK Woman to Abort
Six-Month Pregnancy,'' Agence France-Presse, 12 July 05 (FBIS, 12 July
05).
\4\ 54 China: Human Rights Violations and Coercion in One Child
Policy Enforcement, Hearing of the Committee on International
Relations, U.S. House of Representatives, 14 December 04; ``Man Whose
Wife Was Sterilized in China Wins Asylum,'' Los Angeles Times (Online),
9 March 05.
\5\ Steven W. Mosher, ``The Passion and Mrs. Wong,'' Global Family
Life News, March-May 2005, 3, 9f.
\6\ China: Human Rights Violations and Coercion in One Child Policy
Enforcement, Hearing of the Committee on International Relations, U.S.
House of Representatives, Testimony of John S. Aird, Former Senior
Research Specialist on China, U.S. Bureau of the Census; ``Violence in
Enforcing Family Planning in a Chinese City,'' Chinese Rights Defenders
Information Bulletin (Online), 23 June 05; ``Chinese Jails for
Violators of One-Child Policy,'' Kyodo World Service (Online), 11 July
05; ``At a Meeting of Part-Time Members of the State Population and
Family Planning Commission, Hua Jianmin Stresses the Need to Implement
the Basic National Policy on Family Planning Unswervingly and Strive to
Stabilize the Low Birth Rate,'' Xinhua, 9 July 05 (FBIS, 9 July 05);
``China Adheres to Family Planning to Keep Low Birth Rate: Official,''
Xinhua (Online), 10 July 05; ``Unreasonable Hunan Officials Arbitrarily
Apply `One-Child Policy' by Forcing Hong Kong Woman To Have Abortion;
Hong Kong Immigration Department Successfully Rescues Victim Within 24
Hours,'' Apple Daily (Online), 11 July 05 (FBIS, 12 July 05); ``PRC
Tries to Force HK Woman to Abort Six-Month Pregnancy,'' Agence France-
Presse, 12 July 05 (FBIS, 12 July 05); ``Gaocheng City Abuses
Illustrate Flaws of China's Family Planning Policy,'' Laogai Research
Foundation (Online), 15 July 05; ``Henan Family Planning Official
Brutalizes Local Residents,'' China Information Center (Online), 15
July 05; ``Family Planning Cadres in Sichuan Cities Line Their Pockets
With `Violator's' Fines,'' China Information Center (Online), 21 July
05; ``Henan Woman Seized on the Street and Coerced to Have an
Abortion,'' China Information Center (Online), 18 July 05.
\7\ ``Comments of Yu Xuejun, spokesperson for NPFPC and Director
General of the NPFPC Department of Policy and Legislation on the
Preliminary Results of Investigating Family Planning Practices in Linyi
City of Shandong Province,'' National Population and Family Planning
Commission of China (Online), 19 September 05. Regarding the violence
in Linyi, see, Philip P. Pan, ``Who Controls the Family? '' Washington
Post (Online), 27 August 05; Hannah Beech, ``Enemies of the State? ''
Time (Online), 12 September 05; Michael Sheridan, ``China Shamed by
Forced Abortions,'' Times (London) (Online), 18 September 05; Philip P.
Pan, ``China Terse About Action on Abuses of One-Child Policy,''
Washington Post (Online), 20 September 05.
\8\ Philip P. Pan, ``Rural Activist Seized in Beijing,'' Washington
Post (Online), 7 September 05; ``Blind Social Activist, Lawyers Beaten
in China,'' Radio Free Asia (Online), 4 October 05. The case of Chen
Guangcheng is also discussed extensively in Pan, ``Who Controls the
Family? ''; Beech, ``Enemies of the State? ''; Pan, ``China Terse About
Action on Abuses of One-Child Policy.''
\9\ ``One-Child Policy Opponent Tortured,'' Human Rights in China
(Online), 5 October 04; ``Violence Against Women,'' in Report 2005,
Amnesty International (Online) (covering events from January-December
2004). See also, ``China Denies Detaining Woman Who Protested 1-Child
Policy,'' Associated Press, 10 January 05 (FBIS, 10 January 05);
``Chinese Woman Tortured After Coerced Abortion Faces More Jail Time,''
LifeNews (Online), 5 January 05; PRC Anti-Abortion Protestor Released,
Continues to Face Police Harassment,'' Agence France-Presse (Online),
30 September 05; China: Human Rights Violations and Coercion in One
Child Policy Enforcement, Hearing of the Committee on International
Relations, U.S. House of Representatives, Testimony of Michael G.
Kozak, Acting Assistant Secretary, U.S. Department of State, Bureau of
Democracy, Human Rights and Labor.
\10\ The Chinese government also does long-term population
planning. It has set population targets through the mid-21st century.
State Council Information Office, ``White Paper on China's Population
and Development in the 21st Century'', December 2000.
\11\ But there are other exceptions to the one-child rule: in some
rural areas at some times two children were allowed in all cases;
couples in which both spouses were only children were usually allowed
two children; in some places, couples in which one spouse is an only
child and the other a farmer were allowed two children; and members of
minority communities have also been allowed more children--though it is
unclear how often the government respected this latter exception.
``China's Family Planning Policy `Misinterpreted,' '' Xinhua, 16 May 05
(FBIS, 16 May 05); Charles Hutzler and Leslie T. Chang, ``China Weighs
Easing Its Harsh `One Child' Rule,'' Wall Street Journal (Online), 4
October 04; ``More Shanghai Couples Have Second Child,'' Xinhua, 15
April 05.
\12\ ``China to Continue Its Population Control Policy,'' Xinhua, 5
January 05 (FBIS, 5 January 05); ``China Remains Firm in Carrying Out
Family Planning: Official,'' Xinhua, 9 June 05 (FBIS, 9 June 05);
Charles Hutzler and Leslie T. Chang, ``China Weighs Easing Its Harsh
`One Child' Rule,'' Wall Street Journal (Online), 4 October 04; ``Is
China's High-Level Leadership Taking the Lead on Research for a
Reevaluation of the Family Planning Policy? '' [Zhongguo sangaoguan
qiantou yanjiu jihuashengyu zhengce mianlin tiaozheng?], Xinhua
(Online), 19 October 04; Low Birth Rate Unstable: Official,'' Xinhua
(Online), 16 September 05. Indications that the population control
policy aims not only to reduce population growth but also to improve
population ``quality'' can be found in ``Family Planning Policy Saves
China 300 mln Births,'' People's Daily, 8 September 05 (FBIS, 8
September 05); ``China To Focus on Improving Population Qualities:
Official,'' Xinhua (Online), 27 June 05 (FBIS, 27 June 05); ``At a
Meeting of Part-Time Members of the State Population and Family
Planning Commission, Hua Jianmin Stresses the Need to Implement the
Basic National Policy on Family Planning Unswervingly and Strive to
Stabilize the Low Birth Rate,'' Xinhua (Online), 9 July 05 (FBIS, 9
July 05); China: Human Rights Violations and Coercion in One Child
Policy Enforcement, Hearing of the Committee on International
Relations, U.S. House of Representatives.
\13\ ``Tougher Line Sought on Aborting Girl Fetuses,'' South China
Morning Post, 28 February 05 (FBIS, 28 February 05); ``Building a Girl-
Caring Society,'' Xinhua (Online), 21 June 05; Vanessa L. Fong, Only
Hope: Coming of Age Under China's One-Child Policy (Palo Alto,
California: Stanford University Press, 2004); ``Sex Imbalance Could
Threaten Progress: Experts Say Excess of Single Men May Lead to
Instability,'' Agence France-Presse (Online), 21 July 05.
\14\ Life tables for China published by the World Health
Organization document a mortality pattern in which female infants have
a much higher mortality rate than male infants. For background on this
topic, see, Judith Banister, ``Shortage of Girls in China Today,''
Journal of Population Research, No. 1, 2004, 19-34.
\15\ ``China to Outlaw Aborting Female Fetuses,'' Canadian
Broadcasting Corporation News (Online), 7 January 05. There were also
many provincial regulations on this. ``PRC to Amend Criminal Law to
Curb Unbalanced Sex Ratio: Population Official,'' People's Daily, 10
January 05 (FBIS, 10 January 05); ``Abuse of Fetus Identification Could
Result in More Men than Women,'' Xinhua, 7 March 05 (FBIS, 7 March 05).
\16\ ``China Moves to Tighten Up Laws Against Selective Abortion,''
Agence France-Presse, 7 January 05 (FBIS, 7 January 05).
\17\ Howard W. French, ``As Girls Vanish, Chinese City Battles Tide
of Abortions,'' New York Times (Online), 17 February 05; ``New
Chongqing Regulation--RMB 50,000 Fine for Termination of Pregnancy
Based on Gender After Midway Point'' [Chongqing xuanze xingbie zhongzhi
zhongqi yishang renshen zuigao kef a wuwan yuan], Xinhua (Online), 29
September 05.
\18\ ``China Remains Firm in Carrying Out Family Policy:
Official,'' Xinhua, 9 June 05 (FBIS, 9 June 05).
\19\ The government rewards couples with monetary payments,
remission of children's tuition fees, and the addition of points onto
children's university entrance examination scores. ``Cash Rewards for
Family Planners,'' China Daily, 26 October 04 (FBIS, 26 October 04);
``Rewards Give Impetus to China's One-Child Policy,'' Xinhua, 27
February 05 (FBIS, 27 February 05); ``China Rewards Old Rural Couples
Observing National Family Planning Policy,'' Xinhua, 8 April 05 (FBIS,
8 April 05); ``China Rewards Rural Couples Practicing Family Planning
With Special Allowances,'' Xinhua, 3 June 05 (FBIS, 3 June 05);
``Building a Girl-Caring Society,'' Xinhua.
\20\ ``A Bitter Task Becomes A Sweet Task: The Hui Autonomous
Region in Ningxia Implements the `Fewer Births Means Faster Fortune'
Poverty Reduction Project'' [Kuse de shiye biancheng le tianmi de
shiye: Ningxia Huizu zizhiqu shishi `shao sheng kuai fu' fupin
gongcheng de shijian], Seeking Truth (Online), No. 1, 2005.
\21\ ``China Faces Up to Aging Population,'' Xinhua (Online), 7
January 05.
\22\ Li Weiwei, ``At the General Meeting of the National Committee
on Aging, Hui Liangyu Stresses the Need to Do the Work on Aging in a
Solid Way and Promote the Building of a Harmonious Society,'' Xinhua,
22 February 05 (FBIS, 22 February 05); Vivien Ci, ``Mainland Struggles
to Care for the Aged,'' South China Morning Post, 2 February 05 (FBIS,
2 February 05).
\23\ ``Our Country Already Delegates Second Child Powers to Every
Provincial and Municipal People's Congresses for Self-Regulation'' [Wo
guo yijing ba sheng ertong quanli xiafang geshengshi renda zixing
guiding], Beijing News (Online), 15 March 05.
\24\ ``China Ranks Among Developed Countries With a Low Fertility
Level,'' Xinhua (Online), 7 September 04 (total fertility rate remains
below replacement level); ``Shanghai Eases Up Family Planning Policy,''
Xinhua, 8 September 04 (FBIS, 8 September 04); ``More Couples Have a
Second Child,'' Xinhua, 15 April 05 (FBIS, 15 April 05); ``Home
Alone,'' The Guardian (Online), 9 November 04; ``Sichuan Officials Sell
`Right of Birth' for Money,'' China Information Center (Online), 21
July 05; ``Nanjing: the `Red Document' Expressly States the Conditions
in Which a Second Child May Be Approved'' [Nanjing `hongtou wenjian'
mingque ke pizhun sheng ertai de qingkuang], People's Daily (Online), 3
February 05.
\25\ ``Beijing Sticks Tough To One-Child Policy,'' China Daily, 21
October 04 (FBIS, 21 October 04) (Beijing couples who want a second
child must prove that their first child has some kind of disability and
both mother and father must be only children).
\26\ Zhu Zhe, ``For Students, Degree Weighs More Than Wedding
Ring,'' Xinhua, 1 September 05 (FBIS, 1 September 05); ``China Lifts
Ban on Student Marriage,'' United Press International (Online), 11
August 05; ``China to Lift Ban on Marriage, Childbearing for University
Students,'' Xinhua (Online), 21 January 05. ``More Chinese Graduate
Students Marry in Secret,'' Xinhua (Online), 12 July 05; Paul Mooney,
``China Withdraws Ban on Marriage and Childbearing by Students,''
Chronicle of Higher Education, 11 February 05.
Notes to Section III(j)--Freedom of Residence and Travel
\1\ For a more detailed discussion of the Chinese hukou system and
recent reforms, see ``China's Household Registration System: Sustained
Reform Needed to Protect China's Rural Migrants,'' Topic Paper of the
Congressional-Executive Commission on China, 7 October 05; China's
Household Registration System, Staff Roundtable of the Congressional-
Executive Commission on China, 2 September 05; Fei-Ling Wang,
Organizing Through Division and Exclusion (Stanford: Stanford
University Press, 2005).
\2\ Ibid., 177-203. Reports in the Chinese media on such reforms
tapered off almost completely in the first half of 2005, despite
statements by public security and NPC officials that authorities were
in the process of considering the passage of a comprehensive national
hukou law. He Chunzhong, ``China's Hukou Management System Contains
Three Major Flaws, New Hukou Law To Be Passed Soon'' [Woguo huji guanli
zhidu cun san da biduan jiang zhiding xin hujifa], China Youth Daily,
reprinted in Sina.com (Online), 24 February 05.
\3\ State Council Office Notice Regarding Improving Employment
Prospects for Migrants in Urban Areas [Guowuyuan bangongting guanyu
jinyibu zuo hao wanshan nongmin jincheng jiuye huanjing gongzuo de
tongzhi], issued 27 December 04. A chart surveying various local,
provincial, and national hukou reforms through the end of 2004 is
available on the Freedom of Residence resources page of the
Commission's Web site.
\4\ See, e.g., State Council Notice on Approving the Public
Security Bureau's Opinions on Promoting Reform of the Management System
for Residence Permits in Small Towns and Cities [Guowuyuan pizhuan
gong'an bu guanyu tuijin xiaochengzhen huji guanli zhidu gaige yijian
de tongzhi], issued 30 March 01.
\5\ See, e.g., Nanjing City Government Notice Approving the Public
Security Bureau's ``Nanjing City Temporary Residence Permit
Registration System'' [Shi zhengfu pizhuan shi gong'anju guanyu
``Nanjing shi huji zhunru dengji zanxing banfa''], issued 19 June 04
[hereinafter Nanjing City Government Notice], art. 3; Gansu Provincial
Public Security Bureau, Opinions on Further Deepening of Hukou System
Reform [Guanyu jinyibu shenhua huji guanli zhidu gaige de yijian],
issued 30 September 03, art. 1.
\6\ Nanjing City Government Notice, art. 9.
\7\ Li Zhanyong, ``Hebei Releases Implementation Details on
Residence Status Reform'' [Hebei chutai huji gaige shishi xize],
People's Daily (Online), 26 September 03.
\8\ The limit often set is the locally determined minimum standard
of living (zui di shenghuo baozhang xian). Ibid.; Danyang Municipality
Basic Requirements for Obtaining Local Hukou [Danyang shi hukou zhunru
jiben tiaojian], Danyang Municipal Web site, 29 June 05, art. 1(4).
\9\ Notice of the Zhejiang Provincial People's Government's Office
Regarding the Issuance of the Provincial Public Security Bureau's
Opinions Regarding the Deepening of Reform of the Residence Permit
System [Zhejiang sheng renmin zhengfu bangongting zhuanfa sheng gong'an
ting guanyu shenhua huji guanli zhidu gaige yijian de tongzhi], issued
29 March 02, art. 2.
\10\ Chongqing City Government Notice of Issuance of the City
Public Security Bureau ``Opinions Related to the Speeding Up of
Municipal Urbanization and Steps Regarding the Reform of the Hukou
System'' [Chongqing shi renmin zhengfu bangongting zhuanfa shi gongan
ju ``Guanyu jiakuai woshi chengzhenhua jincheng jin yibu shenhua huji
zhidu gaige de yijian'' de tongzhi], issued 29 July 03, art. 1.
\11\ Open Content of Official Affairs of the Jinhua City Public
Security Documentation Center [Jinhua shiqu gong'an banzheng zhongxin
zhengwu gongkai neirong], issued 16 August 01, arts. 5, 6(4), 8(2).
\12\ Even China's state-run media has discussed these problems in
depth. Fu Jing, ``Rights of Migrants Must Be Protected,'' China Daily
(Online), 24 June 05 (noting that ``[i]n some places, discriminatory
policies against migrants have prevented them from integrating into
cities where they are treated like second-class citizens in terms of
employment, social welfare, medical care and education provision for
their children.'') Migrants face other exploitative and abusive
practices by both public and private actors. These are surveyed in
Human Rights in China, Institutionalized Exclusion: The Tenuous Legal
Status of Internal Migrants in China's Major Cities, 6 November 02.
\13\ United Nations Committee on Economic, Social, and Cultural
Rights, Concluding Observations of the Committee on the Initial Report
of the People's Republic of China (including Hong Kong and Macao), 13
May 05, 3.
\14\ State Council Notice on the Opinion of the Education and Other
Ministries Relating to Further Work on Migrant Children's Compulsory
Education [Guowuyuan ban'gongting zhuanfa jiaoyubu deng bumen guanyu
jin yibu zuohao jincheng wugong jiuye nongmin zinu yiwu jiaoyu gongzuo
yijian de tongzhi], issued 17 September 03, art. 6.
\15\ At least one province has announced ambitious plans to expand
local educational opportunities to migrant children of long-term
residents, even those who lack local hukou, over the next two decades.
Liao Yanyan, ``Long-Term Residents With Non-Local Hukou Will Receive
Mandatory Education, Guangdong Will Take Preliminary Steps to Promote
Free Mandatory Education'' [Fei huji changzhu renkou jiang xiang yiwu
jiaoyu guangdong quansheng jiang chubu tuixing mianfei yiwu jiaoyu],
Southern Metropolitan Daily (Online), 19 October 04.
\16\ The most recent State Council circular on migrant education
directs local authorities to ``take steps towards'' providing equal
treatment to migrant and local children. State Council Notice on the
Opinion of the Education and Other Ministries Relating to Further Work
on Migrant Children's Compulsory Education [Guowuyuan bangongting
zhuanfa jiaoyubu deng bumen guanyu jin yibu zuohao jincheng wugong
jiuye nongmin zinu yiwu jiaoyu gongzuo yijian de tongzhi], issued 17
September 03, art. 6. Provincial authorities have interpreted this to
allow schools to charge migrant families ``temporary schooling fees''
(jiedufei). Notice of the Zhejiang Education, Pricing, and Finance
Bureaus Regarding the Issuance of the ``Opinion of the Ministry of
Education, National Development and Reform Commission, and the Ministry
of Finance Regarding Implementing the `One Fee System' in Compulsory
Education'' [Zhejiang sheng jiaoyuting zhejiang sheng wujiaju zhejiang
sheng caizhengting zhuanfa ``Jiaoyubu guojia fazhan he gaige weiyuanhui
caizhengbu guanyu zai quanguo yiwu jiaoyu jieduan xuexiao tuixing
`yifeizhi' shoufei banfa de yijian'' de tongzhi], issued 12 August 04,
art. 1(2); Zhejiang Provincial Measures on Compulsory Education Fees
[Zhejiang sheng yiwu jiaoyu shoufei guanli banfa], issued 19 June 03,
art.8.
\17\ See also Human Rights in China, Shutting Out the Poorest:
Discrimination Against the Most Disadvantaged Migrant Children in City
Schools, 8 May 02, 14-5.
\18\ Chloe Froissart, ``Restrictions on the Right to Education in
China: An Investigation Into the Education of Migrant Children in
Chengdu'' [Les Aleas du Droit a l'Education en Chine, Enquete sur la
Scolarisation des Enfants de Travailleurs Migrants a Chengdu], 77
Chinese Perspectives (Online) (2003); Human Rights in China, Shutting
Out the Poorest, 25-27.
\19\ For the chart of allowable educational fees in Beijing, see ``
`One Fee System' Implemented in Compulsory Education,'' [Yiwu jiaoyu
shoufei shixing ``yifeizhi''], Beijing Municipal Government Web site.
\20\ These practices depress the numbers of migrant children who
actually enroll in school. Statistics vary wildly on this point.
Official Chinese media sources suggest that roughly 10 percent of
migrant children are not in school. ``Nearly 10 Percent of Migrant
Workers' Children Not in School,'' Xinhua, 6 November 04 (FBIS, 6
November 04). U.S.-based NGOs cite sources suggesting the number could
be substantially higher. Human Rights in China, Shutting Out the
Poorest, 8-10.
\21\ Fei-Ling Wang, Organizing Through Division and Exclusion, 192.
\22\ Ibid., 192-93.
\23\ Ibid., 189.
\24\ See, e.g., ``Xinjiang Jimusaer County Hukou Reform Completely
Wipes Out Rural-Urban Division'' [Xinjiang jimusa'er xian huji gaige
chedi quxiao chengxiang chabie], Xinhua, reprinted on People's Daily
(Online), 12 April 03; ``Chongqing Smashes The Dual Urban-Rural Hukou
System, Carries Out Hukou Unification'' [Chongqing dapo chengxiang
eryuanzhi huji jiegou, shixing hukou yiyihua], People's Daily (Online),
8 August 03.
\25\ Yu Jindong, ``Important Reforms in the Jiangsu Residence
Permit System'' [Jiangsu huji zhidu zhongda gaige], China News Net
(Online), 28 March 03.
\26\ See, e.g., the relevant regulations for Gansu and Shandong.
Gansu Provincial Public Security Bureau, Opinions on Further Deepening
of Hukou System Reform; Shandong Provincial Public Security Bureau,
Opinions on Further Deepening of Hukou System Reform [Guanyu jin yibu
shenhua huji guanli zhidu gaige de yijian], issued 26 June 04.
\27\ Public security officials have also undertaken reforms aimed
at centralizing and computerizing hukou records in order to strengthen
police monitoring. Fei-Ling Wang, Organizing Through Division and
Exclusion, 107-12, 228 n.95.
\28\ Congressional-Executive Commission on China, 2004 Annual
Report, 5 October 04, 18.
\29\ ``Hangzhou Eliminates Migrant Sweeps'' [Hangzhou quxiao wailai
renkou qingcha xingdong], Southern Metropolitan Daily (Online), 31
October 03.
\30\ Zhang Jing, ``Shenyang Eliminates Temporary Residence Permits,
Leads Nation in Proposing Reporting Mechanism for Temporary Residence''
[Shenyang quxiao zanzhuzheng, zai quanguo shuaixian tuichu shenbao
zanzhuzheng jizhi], Xinhua (Online), 22 July 03.
\31\ State Council Office Notice Regarding Improving Employment
Prospects for Migrants in Urban Areas. The directive also instructs
local governments to work on improving employment assistance programs,
resolving outstanding violations of migrants' rights (such as back wage
complaints); and regulating labor markets more tightly (by, for
example, increasing government supervision of labor contracts).
\32\ ``Beijing Eliminates Regulations on the Management of
Migrants'' [Beijing feizhi wailai renyuan guanli tiaoli], Beijing News
(Online), 26 March 03. For an English analysis of the abolished
regulations, see Human Rights in China, Shutting Out the Poorest, 99.
\33\ Zhong Angang, ``Legislative Focus: Migrant Rights Await Legal
Protection'' [Lifa guanzhu: nongmin quanyi qidai falu baohu], Legal
Daily (Online), 31 March 05; ``Hot Topic: Understanding Legal
Protections for Migrants'' [Redian huati: Jiedu nongmingong de falu
baohu], Legal Daily, reprinted in People's Daily (Online), 31 March 05;
Zhao Jin, ``Jiang Deming: Pass a `Law on the Protection of Migrant
Rights' As Quickly as Possible'' [Jiang Deming: jinzao zhiding `nongmin
quanyi baohu fa'], China Economic Times, reprinted in People's Daily
(Online), 11 March 03.
Notes to Section V(a)--The Development of Civil Society
\1\ According to Ministry of Civil Affairs (MOCA) statistics, the
number of registered social organizations have risen from 130,000 in
2002 (3.1 percent growth from the prior year), to 142,000 in 2003 (6.8
percent), to 153,000 in 2004 (7.7 percent). Registered non-
governmental, non-commercial enterprises (NGNCEs) have increased from
111,000 in 2002, to 124,000 in 2003, to 135,000 in 2004. ``Ministry of
Civil Affairs Releases 2004 Statistical Report on the Development of
Civil Affairs Work'' [Minzheng bu gongbu 2004 nian minzheng shiye
fazhan tongji baogao], Xinhua (Online), 11 May 05. These statistics
understate the actual numbers of Chinese civil society organizations,
as many operate without official registration. Regarding the work of
environmental NGOs, see Elizabeth Economy, The River Runs Black
(Cornell: Cornell University Press, 2004), 130-9.
\2\ Environmental NGOs in China: Encouraging Action and Addressing
Public Grievances, Staff Roundtable of the Congressional-Executive
Commission on China, 7 February 05, Written Statement submitted by
Elizabeth Economy, C.V. Starr Senior Fellow and Director of Asia
Studies, Council on Foreign Relations. Rural Chinese organizations
range from formally registered rural cooperative organizations that
seek to protect the economic rights of local farmers or provide social
services to independent (and often underground) ``burden reduction
committees'' that vigorously challenge local tax policies. Wang Ximing,
``The Current State of Organizational Construction Among Chinese
Farmers: Analytic Report of House-to-House Survey Regarding the
Organizational Construction of Chinese Farmers'' [Zhongguo nongmin
zuzhi jianshe de xianzhuang: zhongguo nongmin zuzhi jianshe ruhu
diaocha wenjuan fenxi baogao], 519 China (Hainan) Research Institute of
Reform and Development Bulletin (Online), 22 October 04; Yu Jianrong,
``Organized Resistance of Farmers and Its Political Risks: An
Investigation of H County in Hunan Province'' [Nongmin you zuzhi
kangzheng ji qi zhengzhi fengxian: hunan sheng H xian diaocha],
Strategy and Management, No. 3, 2003.
\3\ Human Rights Watch, Restrictions on AIDS Activists in China,
June 2005, 1.
\4\ Ibid., 1, 3, 31-6, 40; Roundtable on HIV/AIDS, Staff Roundtable
of the Congressional-Executive Commission on China, 9 September 02,
Written Statement submitted by Dr. Bates Gill, Freeman Chair in China
Studies, Center for Strategic and International Studies.
\5\ National regulations allow for ordinary citizens to organize
and apply to MOCA for registration of foundations (jijinhui), social
organizations (shehui tuanti) (SOs), and NGNCEs. SOs are voluntary
associations such as academic or professional groups, while NGNCEs are
nongovernmental service providers such as schools, hospitals, sports
organizations, or employment service organizations. To Serve the
People, NGOs and the Development of Civil Society in China, Staff
Roundtable of the Congressional-Executive Commission on China, 23 March
03, Written Statement submitted by Qiusha Ma, Assistant Professor, East
Asian Studies, Oberlin College, Research Associate, the Mandel Center
for Nonprofit Organizations, Case Western Reserve University. Existing
SO and NGNCE regulations were issued in 1998, while regulations
governing foundations were issued in 2004. All require approval of a
sponsor organization in order to register. Sponsors provide
``guidance'' for the civil society organizations they supervise and
participate in their annual review. See, e.g., Regulations on the
Registration and Management of Social Organizations [Shehui tuanti
dengji guanli tiaoli], issued 25 September 98, arts. 9 and 28.
\6\ The 2004 annual MOCA review of approved national social
organizations lists their corresponding sponsor organizations and
illustrates the Party/government links with Chinese civil society
organizations. ``Report on the 2004 Annual Review of National Social
Organizations'' [2004 niandu quanguoxing shehui tuanti nianjian jieguo
gonggao], MOCA Web site, 16 May 04.
\7\ Yu Nan, ``Three Big Research Centers Propose Legislation on
Social Organization Management, The Spring of Grassroots NGOs Is
Approaching'' [San da zhiku jianyan shetuan guanli lifa, caogen NGO de
chuntian lailin], 21st Century Business Herald (Online), 29 November
04; Katrin Fiedler, ``New Regulations for the Management of
Foundations,'' Amity Foundation Newsletter (Online), January-March
2005.
\8\ Zhao Ling and Dong Shuhua, ``New Regulations on Social
Organizations to be Issued This Year: Civil Society Organizations to
Receive Appropriate Encouragement'' [Xin shetuan tiaoli nian nei
chutai: minjian zuzhi jiang huo shidu guli], Southern Weekend (Online),
18 May 05.
\9\ Wang Ximing, ``The Current State of Organizational Construction
Among Chinese Farmers.''
\10\ One survey of 22 Chinese NGOs revealed five unregistered ones
which ``conducted their activities openly without experiencing any
explicit control exerted by any government agencies.'' In contrast, the
same study found that ``supervisory organizations of GONGOs [quasi NGO-
organizations directly organized by state actors] . . . not only
supervised the operations of these [GONGOs], but indeed exerted
financial and/or personnel control over those [GONGOs].'' Environmental
NGOs in China: Encouraging Action and Addressing Public Grievances,
Written Statement submitted by Jiang Ru, Ph.D. in Environmental
Management and Planning, Stanford University.
\11\ Shi Jiangtao, ``Tough Rules for NGOs May Impede Volunteer
Scheme,'' South China Morning Post (Online), 7 June 05.
\12\ Environmental NGOs in China: Encouraging Action and Addressing
Public Grievances, Written Statement submitted by Elizabeth Economy; Ma
Li, ``Hearing on Yuanming Garden to Convene This Morning, 73 People
Approved to Attend'' [Yuanmingyuan tingzhenghui jinri shangwu zhaokai
73 ren huozhun canjia], People's Daily (Online), 13 April 05.
\13\ Guo Xiaojun, ``Possibility that NGO Registration Will Not Need
Sponsoring Unit'' [NGO zhuce youwang wuxu zhuguan danwei], Beijing News
(Online), 18 October 2004; ``Who is Stopping China's Wealthy From
Becoming Philanthropists? '' [Shei zuaile zhongguo furen chengwei
cishan jia?], 21st Century Business Herald (Online), 1 March 04.
\14\ According to Chinese news reports, specific changes in the
MOCA drafts under consideration by the State Council include: (1)
reducing the amount of registered capital required; (2) eliminating
examination procedures; and (3) removing the restriction on having more
than one NGO of the same type (e.g., bird watching association) in the
same administrative region. The new regulations would apply to foreign
NGOs as well. They also require local governments to give unspecified
policy ``assistance'' to NGOs. Zhao Ling and Dong Shuhua, ``New
Regulations on Social Organizations to Come Out Within the Year: Civil
Society Organizations to Receive Appropriate Encouragement.'' Many of
these elements broadly resemble those found in the national foundation
regulations passed in 2004. CECC, 2004 Annual Report, 73-4; Carl
Minzner, ``New Chinese Regulations on Foundations,'' 2 International
Journal of Civil Society Law 110 (April 2004). The fact that the 2004
foundation regulations explicitly apply the sponsor organization
requirement to representative offices of foreign foundations that seek
to register in China suggests that future revisions to the national SO
and NGNCE regulations may do so also.
\15\ Guan Zhehui and Li Xiaopeng, `` `Zhejiang Provincial
Regulations on Professional Farmers' Cooperatives' Issued'' [``Zhejiang
sheng nongmin zhuanye hezuoshe tiaoli'' chutai], China Court Web site,
12 November 04; ``Farmers' Cooperatives Receive Legal Person Status For
the First Time'' [Nongmin hezuo zuzhi shou huo faren shenfen], Beijing
News (Online), 10 May 05. The Zhejiang regulations require agricultural
officials at the county level and higher to guide (zhidao), coordinate
(xietiao), and provide services (fuwu gongzuo) to the farmers'
associations, but do not vest them with supervisory authority and do
not require them to serve as a sponsor organization. Zhejiang
Provincial Regulations on Professional Farmers' Cooperatives [Zhejiang
sheng nongmin zhuanye hezuoshe tiaoli], issued 11 November 04, art. 5.
The regulations charge the State Administration of Industry and
Commerce with reviewing and approving applications to establish farmers
associations. Ibid., art. 10. However, ongoing organizational
supervision is vested in a board selected and run by association
members. Ibid., arts. 14-17.
\16\ MOCA Notice Regarding the Issuance of ``Guiding Opinion
Regarding Strengthening the Cultivation and Development and Managing
the Registration Work of Rural Professional Economic Associations''
[Guanyu yifa ``guanyu jiaqiang nongcun zhuanye jingji xiehui peiyu
fazhan he dengji guanli gongzuo de zhidao yijian'' de tongzhi], issued
29 October 03, art. 2.
\17\ Fan Lixiang, ``Zhejiang Raises the Question: Correcting the
Misunderstanding about Agricultural Cooperatives'' [Zhejiang poti: wei
nongye hezuoshe zhengshen], 21st Century Business Herald (Online), 21
October 04.
\18\ Vivien Cui, ``AIDS Group Told To Change Name or Close,'' South
China Morning Post, 24 March 05 (FBIS, 24 March 05); ``Beijing AIDS
Institute of Health Education Receives Permission to Change Name to
`Beijing Zhiaixing Information and Counseling Center' '' [Beijing
aizhixing jiankang jiaoyu yanjiusuo mingcheng huozhun biangeng wei
``Beijing zhiaixing xinxi zixun zhongxin''], Open Letter from Wan
Yanhai, 28 March 05 (on file with Commission).
\19\ Human Rights Watch, Restrictions on AIDS Activists in China,
17-22.
\20\ Environmental NGOs in China: Encouraging Action and Addressing
Public Grievances, Written Statement submitted by Elizabeth Economy;
for comments by Liao Xiaoyi, director of Global Village Beijing, see Yu
Nan, `` `Beijing Global Village': Growing Pains of Grassroots NGOs''
[``Beijing diqiu cun'': caogen NGO shengzhang zhi kun], 21st Century
Business Herald (Online), 26 January 05.
\21\ Yu Nan, `` `Beijing Global Village': Growing Pains of
Grassroots NGOs.''
\22\ Yu Renwang, ``When the `Branch' Meets the `Association': The
Story of a Civil Society Trade Organization'' [Dang ``fenhui'' yushang
``xiehui'': yi ge minjian hangye zuzhi de gushi], 21st Century Business
Herald (Online), 6 April 05.
\23\ Yu Nan, `` `Beijing Global Village': Growing Pains of
Grassroots NGOs.''
\24\ Chen Xiangyang, ``PRC: Journal Views NGO Challenges to China,
Warns of Western Infiltration Through NGOs,'' China Economic Daily, 26
May 05 (FBIS, 27 May 05).
\25\ Xu Xinghan, ``People's Daily Commentator: Putting Civil
Organizations to Good Use'' [Renmin ribao pinglunyuan: fahui hao
minjian zuzhi de zuoyong], People's Daily (Online), 11 December 04.
\26\ Qiu Xin, ``China Curbs Civil Society Groups,'' Asia Times
(Online), 19 April 05; ``Enterprise Supervision Bureau Carries Out
Annual Review of Social Science Research Organizations'' [Qijianke
zuohao minban sheke jigou nianjian gongzuo], Beijing Municipal Bureau
of Industry and Commerce (Online), 11 April 05.
\27\ ``New NGO Founded to Rally All Chinese People Against
Worsening Pollution,'' Xinhua, reprinted in People's Daily (Online), 24
April 05; Bao Rong and Wang Shiling, ``China Environmental Protection
Federation: The Birth of a Special NGO'' [Zhonghua huanbao lianhehui:
yi ge teshu NGO de dansheng], 21st Century Business Herald (Online), 25
April 05.
\28\ Commission Staff Interview.
Notes to Section V(b)--Legal Restraints on State Power
\1\ National People's Congress Standing Committee Work Report, 9
March 05.
\2\ Li Weiwei, ``Theme of Legal System Publicity Day Determined:
Developing Constitutional Spirit and Strengthening Legal Concepts''
[Fazhi xuanchuanri zhuti queding: hongyang xianfa jingsheng zengqiang
fazhi guannian], Xinhua, reprinted in People's Daily (Online), 16
November 04.
\3\ For statements on the significance of the amendments and
implementation measures, see, e.g. ``China's Progress on Human Rights
in 2004,'' State Council Information Office, April 2005 (FBIS, 13 April
05); Supreme People's Procuratorate Work Report, 9 March 05;
``Including Human Rights in The Constitution Is a Milestone in China's
Human Rights Cause'' [Renquan ruxian shi zhongguo renquan shiye fazhan
de lichengpai], Xinhua, reprinted in Legal Daily (Online), 22 February
05.
\4\ PRC Constitution, arts. 62, 67.
\5\ A recent example of such complaints can be found in Liao
Weihua, ``Experts Suggest Establishing a Special Constitutional
Committee'' [Zhuanjia jianyi she xianfa zhuanmen weiyuanhui], Beijing
News (Online), 21 September 04.
\6\ For the creation of the NPCSC office to review unconstitutional
laws and regulations, see CECC, 2004 Annual Report, 66-70 (discussing
constitutional reform).
\7\ ``NPC Explains Constitutional Review System, Any Citizen Can
Petition for Constitutional Review'' [Renda jie weixian shenchazhi,
renhe gongmin ke tiqing weixian shencha], Beijing News, reprinted in
Xinhua (Online), 2 December 04.
\8\ ``Two Citizens Petition the NPC to Resolve Legislative
Conflict'' [Liang renmin shangsu quanguo renda qingqiu jiejue falu
chongtu], Procuratorate Daily (Online), 3 August 05. In May 2005, the
China Daily published several commentaries attacking local regulations
that prohibit panhandling. One concluded that ``there has not been an
effective examination of such local regulations'' and that ``the only
way to challenge such a local regulation is to have citizens or
institutions apply to the NPC Standing Committee.'' ``Legitimacy of
Local Rules,'' China Daily (Online), 18 May 05. For the second
commentary, see ``Begging Bans Reveal Intolerant Society,'' China Daily
(Online), 23 May 05.
\9\ Commission Staff Interview.
\10\ Li Shuming, ``Commentary: The Rule of Law Significance of `Any
Citizen May Petition for Constitutional Examination'' [Pinglun: ``Renhe
gongmin dou keyi tiqing weixian shencha'' de fazhi yiyi], Procuratorate
Daily (Online), 8 December 04.
\11\ Commission Staff Interview.
\12\ Commission Staff Interviews. In 2001, the SPC authorized a
court in Shandong province to rely on constitutional provisions on the
right to education in deciding a case. However, the case involved a
tort claim between two private parties and not a claim against the
government or an effort to overturn a law or regulation. Shen Kui, ``Is
it the Beginning or the End of the Era of the Run of the Constitution?
Re-Interpreting China's First Constitutional Case,'' 12 Pacific Rim Law
& Policy Journal 200, 209-10 (January 2003).
\13\ Commission Staff Interview. See also, Liao Weihua, ``Experts
Propose Establishment of a Constitutional Litigation System'' [Zhuanjia
changyi jianli xianfa susong zhidu], Beijing News (Online), 15 January
05.
\14\ Law in Political Transition: Lessons From East Asia and The
Road Ahead for China, Hearing of the Congressional-Executive Commission
on China, 26 July 05, Written Statement submitted by Jerome A. Cohen,
Professor, New York University School of Law.
\15\ Chen Jiren, ``Chinese Lawyers Wave the Flag of the
Constitution and Human Rights,'' Law and Life, Vol. 275, December 2004
(translation on file with Commission). This article ties the creation
of the ACLA committee to a series of rule of law developments that
encouraged ACLA to push more aggressively for the protection of
constitutional rights:
The years 2002, 2003, and 2004 have had great significance in
China's rule of law process. The SARS epidemic triggered a nationwide
discussion on government transparency and citizens' right to
information; the Sun Zhigang case brought out attention to citizens'
rights to petition and government review of unconstitutional action;
the case of a couple being prosecuted for watching pornography ignited
a fight over where we should draw the line between private rights and
public rights; and the Hepatitis-B virus carriers' labor rights case
made a huge national impact. Those different types of cases gave
Chinese lawyers opportunities to get involved in constitutional and
human rights issues, and they managed to get some significant work
done. The time was ripe for the establishment of the Constitution and
Human Rights Committee of ACLA.
\16\ ``Henan Natives Battle Against Hometown Notoriety,'' China
Daily (Online), 25 May 05 (FBIS, 25 May 05); Raymond Zhou, ``Henan
Stigma Highlights Regional Bias,'' China Daily (Online), 16 June 05
(FBIS, 16 June 05).
\17\ In June 2005, the writer Zhang Lin pleaded innocent to
criminal subversion charges stemming from Internet essays he had
posted, arguing that the charges violated his constitutionally
protected freedom of speech. ``An Interview With Zhang Lin's Wife Fang
Cao and Defense Lawyer Mo Shaoping'' [Caifang zhanglin qi fang cao yu
bianhu lushi Mo Shaoping], Dajiyuan (Online), 5 April 05; ``Airing
Views Not a Crime, Says Lawyer for Activist,'' Agence France-Presse,
reprinted in South China Morning Post (Online), 22 June 05. Also in
June 2005, constitutional provisions on gender equality were reportedly
raised in a discrimination lawsuit in Chengdu. Huang Zhiling, ``Women
Win Sexual Discrimination Case,'' China Daily, 20 June 05 (FBIS, 20
June 05).
\18\ Commission Staff Interview. Chen Jiren, ``Chinese Lawyers Wave
the Flag of the Constitution and Human Rights.'' According to these
sources, there are efforts underway to research or draft legislation on
freedom of residence, anti-discrimination, the freedom to strike,
freedom of the press, and other issues. A lawyer in the Henan
discrimination case expressed ``hope the case would give rise to the
promulgation of an anti-discrimination law . . .'' Kristine Kwok,
``Shenzhen Police Sued for Prejudice,'' South China Morning Post, 3 May
05 (FBIS, 3 May 05).
\19\ Various sources emphasize that the subject of constitutional
enforcement is a sensitive one in China. See, e.g., Li Shuming,
``Commentary: The Rule of Law Significance of `Any Citizen May Petition
for Constitutional Examination''; Chen Jiren, ``Chinese Lawyers Wave
the Flag of the Constitution and Human Rights''; Philip P. Pan, ``Hu
Tightens Party's Grip on Power; Chinese Leader Seen as Limiting
Freedoms,'' Washington Post (Online), 25 April 05.
\20\ ``NPC Explains Constitutional Review System, Any Citizen Can
Petition for Constitutional Review,'' Beijing News; ``My Country
Implements the Constitution by NPC Supervision, Constitution Still
Cannot Be The Basis of Litigation'' [Wo guo you renda jiandu xianfa
shishi, xianfa reng buneng chengwei susong genju], People's Daily
(Online), 1 December 04.
\21\ For reports on conferences that took place over the past year,
see Liao Weihua, ``Expert Suggests Establishing a Special
Constitutional Committee''; Liu Hui, ``Constitutional Research
Association 2004 Annual Meeting Calls for Raising the Status of
Constitutional Study'' [Xianfaxue yanjiuhui 2004 nian nianhui huyu
tigao xianfaxue diwei], Procuratorate Daily (Online) 25 October 04;
``China Law Center Holds Conference in China on Constitutional
Review,'' Yale Law School Web site, 17 March 05; Liao Weihua, ``Experts
Propose Establishment of a Constitutional Litigation System''; Joseph
Kahn, ``China Calls Off Rights Conference,'' New York Times (Online),
18 May 04.
\22\ Human Rights in China Press Release, ``Dissidents Thwarted in
Opening Human Rights Consultancy in Beijing,'' 22 April 05.
\23\ Commission Staff Interview; see also Liao Weihua, ``Experts
Suggest Establishing a Special Constitutional Committee.''
\24\ PRC Administrative Litigation Law, enacted 4 April 89, arts.
2, 11.
\25\ PRC State Compensation Law, enacted 12 May 94, art. 2. The law
provides citizens and entities with the right to obtain compensation in
a limited number of situations in which they are harmed by the illegal
acts of government officials. Under certain provisions, citizens have
the right to seek compensation from public security, procuratorial,
judicial, and prison management agencies for a range of illegal acts
that take place in the course of criminal investigations, prosecutions,
and sentencing.
\26\ Number of first instance administrative litigation cases
completed by Chinese courts, by year: 1999 (98,759); 2000 (86,674);
2001 (95,984); 2002 (84,942); 2003 (88,050); 2004 (92,192). ``Situation
of Adjudication Work and Building of Cadre of the People's Courts,
1998-2002'' [1998-2002 nian renmin fayuan shenpan gongzuo he duiwu
jianshe qingkuang], China Court Net (Online), 12 March 03;
``Statistical Table on the Situation of First Instance Administrative
Cases Tried By Courts Nationwide in 2003'' [2003 nian quanguo fayuan
shenli xingzheng yishen anjian qingkuang tongjibiao], China Court Net
(Online), 20 April 05; Supreme People's Court 2004 Work Report, 9 March
05. The SPC reported that courts completed 114,896 administrative
litigation cases in 2003. However, the SPC reported that courts
completed 92,192 first instance cases in 2004, and that this was a 4.7
percent increase over the prior year. The only logical explanation for
the discrepancy is that the SPC combined first and second instance
cases to arrive at the 114,896 number reported for 2003.
\27\ Number of state compensation cases completed by Chinese
courts, by year: 1999 (2,113); 2000 (2,400); 2001 (2,705); 2002
(2,642); 2003 (3,124); 2004 (3,134). ``Situation of Adjudication Work
and Building of Cadre of the People's Courts, 1998-2002,'' China Court
Net; Supreme People's Court 2003 Work Report, 10 March 04; SPC 2004
Work Report, 9 March 05. These court statistics do not include all
state compensation cases, as some cases are handled directly by the
``defendant'' agency and not appealed to people's courts.
\28\ See Section II--Introduction and Section V(e)--Access to
Justice, for the growing number of public protests and citizen
petitions.
\29\ Ling Hu, ``Gov't Administration Should Be in Line With Law,''
China Daily (Online), 16 November 04; Li Fei, ``Official Documents Must
Come Under Scrutiny,'' China Daily, 4 June 05 (FBIS, 4 June 05); Wang
Songmiao, ``Commentary: State Compensation: Why Is it `Pleasant to the
Ear But Not Use' '' [Pinglun: Guojia peichang: weishenme ``zhongting bu
zhongyong''], Procuratorate Daily (Online), 5 January 05. The law
applies only to a range of ``specific administrative acts'' that target
a specific person or entity, and not to government regulations and
policies that are generally binding. However, the scope of the law has
gradually been expanded under SPC Interpretations.
\30\ See, e.g., Zheng Lifei, ``Officials Forced to Appear in
Court,'' China Daily, 18 July 03 (FBIS, 18 July 03); ``Lack of
Confidence Is the Main Reason for the Decline in Administrative
Lawsuits'' [Quefa xinxin shi xingzheng susongan shao zhuyin], China
Youth Daily, reprinted in Xinhua (Online), 17 October 03; Irene Wang,
``Beijing Citizens Turn to Law,'' South China Morning Post, 6 January
04 (FBIS, 6 January 04); Fan Fu, ``20 Years of Administrative
Adjudication: Not Suing on Pain of Death A Thing of the Past''
[Xingzheng shenpan 20 nian: chusi bu gao guan cheng wangshi], China
Court Net, 23 February 04; ``Citizens Suing Officials, Defendants Seat
Is Empty'' [Min gao guan, bei gao xi shan `kong dang dang'], Shenyang
Evening News, reprinted in People's Daily (Online), 26 February 04;
Xiao Yang, ``Placing Parameters on Administrative Justice,'' China
Daily, 1 April 04 (FBIS, 1 April 04); Guo Zhichun, ``What the Large
Contrast in Success Rates of Citizens Suing Officials Explains'' [Min
gao guan shengsulu de juda fancha shuoming le shenme], China Youth
Online, 18 November 04; Wang Songmiao, ``Commentary: State
Compensation: Why Is it `Pleasant to the Ear But Not Use.' ''
\31\ Guo Zhichun, ``What the Large Contrast in Success Rates of
Citizens Suing Officials Explains.'' SPC officials cite a 30 percent
overall plaintiff success rate from 1989 to 2003. ``Thirty Percent of
Citizen Plaintiffs Win Lawsuits Against Government Departments,''
Xinhua, 1 April 04 (FBIS, 1 April 04).
\32\ ``Including Human Rights in The Constitution Is a Milestone in
China's Human Rights Cause,'' Xinhua.
\33\ Xu Lai, ``SPC Demands: Resolutely Enforce Effective State
Compensation Judgments,'' China Lawyer Net, 14 November 03 (citing SPC
Vice President as acknowledging that the enforcement rate dips as low
as 10 percent in some locales); Wang Songmiao, ``Commentary: State
Compensation: Why Is it `Pleasant to the Ear But No Use' ''; see also
``SPC: Administrative Trials Must Vigorously Grasp the Execution of
Effective Judgments and Decisions'' [Zuigaofa: xingzhen shenpan yao
henzhua shengxiao caipan yu panjue de zhixing], Xinhua (Online), 24
January 04.
\34\ For discussion of possible amendments, see Yang Yuxin,
``Bright Points and Blind Areas in the Major Amendment Draft of the
Administration Litigation Law'' [Xingzheng susongfa `da xiugao'
jingdian yu mangqu], Legal Daily (Online), 26 May 05; Qin Ping, ``
`Major Amendment' or `Minor Adjustment' to the State Compensation Law''
[Guojian peichangfa shi ``daxiu'' haishi ``xiaobu''], Legal Daily
(Online), 29 July 05.
\35\ PRC Administrative Licensing Law, adopted 1 August 03. For
statements in China's official media on the purpose of the law, see,
e.g., Xiao Jiao, ``Law Defines G'vt Licensing Role,'' China Daily, 28
August 03 (FBIS, 28 August 03); ``Licensing Law--Driving Force of
China's Administrative Reform,'' Xinhua, 6 February 04 (FBIS, 6
February 04); ``Concept of Human Rights Went Deep in Legislation and
Government Power Was Controlled in 2004,'' People's Daily, 23 December
04 (FBIS, 23 December 04); Shen Lutao, Zou Shengwen, and Zhao Ruizhen,
``2004: Witness Steps in China's Democratic Legal System'' [2004:
jianzheng zhongguo minzhu fazhi de jiaobu], Xinhua, reprinted in
People's Daily (Online), 28 February 05.
\36\ ``Concept of Human Rights Went Deep in Legislation and
Government Power Was Controlled in 2004,'' People's Daily.
\37\ ``Five Major Flashpoints in Government Work,'' People's Daily,
31 March 05 (FBIS, 31 March 05).
\38\ PRC Administrative Licensing Law, enacted 1 August 03, arts.
70-81. Almost all enforcement provisions focus on top-down supervision
and rectification, not on bottom-up citizen enforcement. The emphasis
on top-down enforcement is evident in the Circular of the State Council
on implementation of the Licensing Law. State Council Notice on
Implementing the Administrative Licensing Law [Guowuyuan guanyu guanche
shishi xingzheng xukefa de tongzhi], issued 9 September 03. The one
provision that facilitates direct citizen enforcement is Article 71 of
the Licensing Law. In a recent survey of 1,166 enterprises in Beijing
municipality, 85 percent expressed dissatisfaction with their ability
to obtain compensation for violations of the Licensing Law. Li Li,
``How Far We Have Gone Towards Rule of Law Government'' [Women xiang
fazhi zhengfu maijin le duoshao], Legal Daily (Online), 22 March 05.
\39\ The APA, or xingzheng chengxufa is sometimes confused with the
Administrative Litigation Law because some sources also translate the
Administrative Litigation Law (xingzheng susongfa) as ``Administrative
Procedure Law.''
\40\ Cui Li, Yuan Chunlin, ``Procedural Blind Spots Lead to
`Citizens Suing Officials'--NPCSC Proposes Formulating an
Administrative Procedure Act'' [Chengxu mangdian daozhi `min gao
guan'--daibiao weiuan jianyi zhiding xingzheng xukefa], China Youth
Online, 14 March 05.
\41\ Commission Staff Correspondence; ``Final Decision on 05
Legislative Plan'' [05 nian lifa jihua gaoding], China Youth Online, 3
March 05.
\42\ For example, in April 2004, the State Council issued a plan,
entitled ``Implementation Program for Comprehensively Promoting
Administration According to Law,'' to build the rule of law over a ten-
year period. ``Wen Jiabao Emphasizes Comprehensively Promoting
Administration According to Law and Striving to Build a Government With
the Rule of Law at a National Teleconference on Administration
According to Law,'' Xinhua, 29 June 04 (FBIS, 29 June 04).
Notes to Section V(c)--China's Judicial System
\1\ See Section III(e)--Freedom of Expression; Section V(a)--The
Development of Civil Society; Section V(e)--Access to Justice. Similar
use of top-down management techniques is evident in the judiciary as
well. Cheng Jie, ``Supreme People's Court Launches Roving Work System:
Ten Inspection Teams Set Out to Monitor Five Issues'' [Zuigaofa qidong
xunshi gongzuozhi: shi xunshi zu chudong jiandu wu fangmian], Beijing
Youth Daily, reprinted in Xinhua (Online), 11 October 04.
\2\ Other reform goals include the strengthening of basic level
people's tribunals, construction of a juvenile justice system, and
improved enforcement of court decisions. Supreme People's Court Work
Report, 9 March 05.
\3\ According to Chinese media reports, reforms under consideration
include: (1) requiring adjudication committees to use experienced
judges, rather than court administrators lacking legal expertise; (2)
requiring adjudication committees to base their review of trial
decisions on written case materials or oral hearings attended by the
parties, rather than oral reports of the trial judge; (3) requiring
adjudication committees to issue their case decisions publicly,
providing the names of the members making the decision and their
reasons for doing so; and (4) limiting the scope of review of
adjudication committees to legal issues alone, leaving questions of
fact to trial judges. Dai Dunfeng, ``The Debate Over Whether to Keep or
Abolish Adjudication Committees'' [Shenweihui cunfei zhi bian],
Southern Weekend (Online), 3 February 05; Chen Huan, ``The Supreme
People's Court Sets the Tone for Adjudication Committee Reforms''
[Zuigaofa ding diao shenweihui gaige], 21st Century Business Herald
(Online), 16 March 05.
\4\ Under Chinese law, retrials may be initiated either by the
parties to the case or a court of a higher level than the court in
which the case was last tried. For example, according to Article 179 of
the Civil Procedure Law, a court should grant a retrial requested by a
party to the case if: (1) new evidence becomes available which requires
the original decision or ruling to be overturned; (2) the main evidence
used to determine the facts in the original decision or ruling is
insufficient; (3) there is an error in the legal usage of the original
decision or ruling; (4) the court violated procedure, influencing the
correctness of the decision or ruling; or (5) lower court judges
received bribes or otherwise broke the law. The first, second, and
third requirements offer parties and courts significant leeway to
reopen closed cases.
\5\ Chinese judges themselves note these problems. For the
extensive critical analysis by one Jiangxi county judge, see Zhou
Taoyu, ``A Brief Discussion on Perfecting the Civil Retrial System''
[Qianyi minshi zaishen zhidu de wanshan], China Commercial Law Net,
reprinted in Legal Daily (Online), 20 October 04.
\6\ Tian Yu, ``2005 Court Reform: People's Assessors Begin Work on
`May First' '' [2005 nian fayuan gaige: renmin peishenyuan `wuyi'
shanggang], Xinhua (Online), 14 February 05.
\7\ Ibid.; Decision of the Standing Committee of the National
People's Congress Regarding the Improvement of the System of People's
Assessors [Quanguo renmin daibiao dahui changwu weiyuanhui guanyu
wanshan renmin peishenyuan zhidu de jueding], issued 1 May 05, art. 1.
\8\ Decision of the Standing Committee of the National People's
Congress Regarding the Administration of Expert Testimony [Quanguo
renmin daibiao dahui changwu weiyuanhui guanyu sifa jianding guanli
wenti de jueding], issued 1 October 05, art. 7.
\9\ Tan Lin, ``Courts and Judicial Departments May Not Establish
Forensic Centers: An Interpretation of the Decision on the
Administration of Expert Testimony'' [Fayuan he sifa bumen bu de she
jianding jigou: jiedu sifa jianding guanli jueding], Southern
Metropolitan Daily (Online), 9 March 05.
\10\ Wang Ying, ``Reforming the System of Guarantees for Judicial
Fees: Establishing the Foundation for Judicial Fairness'' [Gaige sifa
jingfei baozhang jizhi: dianding sifa gongzheng jichu], 21st Century
Business Herald (Online), 16 March 05.
\11\ In 2004 and 2005, the Ministry of Justice launched a campaign
aimed at strengthening local justice bureaus (sifasuo). Zhang Qingshui,
``The Construction of 45 Thousand Basic Level Judicial Bureaus to be
Completed Nationwide Before the End of Next Year'' [Quanguo jiang zai
mingnian di qian wancheng 4.5 wan ge jiceng sifasuo jianshe], Legal
Daily (Online), 16 May 05. These efforts parallel Party-led propaganda
campaigns to study the example of Cao Fagui, a people's mediator who
was killed while mediating a civil dispute, that stress the importance
of judicial bureaus as the ``first line of defense'' in protecting
social stability. Zhang Qingshui, ``Meeting to Report on the Advanced
Accomplishments of Cao Fagui, Model People's Mediator, to Convene in
Beijing'' [Mofang renmin tiaojieyuan Cao Fagui xianjin shiji baogao hui
zai jing juxing], Ministry of Justice Web site, 3 September 04.
\12\ Liao Weihua, ``Possibility that the Design of the Courts will
be Separate from Administrative Districts'' [Fayuan shezhi youwang yu
xingzheng qu hua fenli], Beijing News (Online), 29 November 04.
\13\ Tian Yu, ``Supreme People's Court: Court Reform Cannot Be
Separated From China's Reality'' [Zuigao fayuan: renmin fayuan gaige
buneng tuoli zhongguo xianshi], Xinhua, reprinted in People's Daily
(Online), 7 December 04; Zong Bian, ``Head of SPC Research Department
Discusses Court Reform'' [Zuigao renmin fayuan yanjiushi fuzeren tan
renmin fayuan gaige wenti], China Court Net (Online), 8 December 04.
\14\ ``Patience for Judicial Reform,'' China Daily (Online), 13
December 04.
\15\ Both the SPC's response to the academic proposal and
accompanying media commentary heavily criticized the proposal to remove
the word ``people's'' from the official title of Chinese courts, i.e.
to shift the title from ``Supreme People's Court'' (zuigao renmin
fayuan) to ``Supreme Court'' (zuigao fayuan), suggesting that judicial
authorities remain concerned with creating impressions that they seek
to challenge traditional political norms.
\16\ Tian Yu, ``Higher Educational Level Does not Equal Increased
Ability: Diploma Cannot Be the Only Goal of Training of Judges''
[Wenping shangqu bu deng yu shuiping tigao: faguan peixun buneng zhi
benzhe wenping qu], Xinhua (Online), 11 March 04. Tian Yu and Zhang
Xiaojing, ``Supreme People's Court: Training the Nearly 150 Thousand
Basic Level Judges in Three Years'' [Zuigao fayuan: 3 nian nei ba jin
15 wan jiceng faguan peixun yibian], Xinhua (Online), 1 July 04.
\17\ Supreme People's Court Notice Regarding the Promulgation of
``Forms for Criminal Judgments by People's Courts'' [Zuigao renmin
fayuan yinfa ``fayuan xingshi susong wenjian yangshi''], issued 30
April 1999; Supreme People's Court Measures on the Management of
Publication of Judgment Documents [Zuigao renmin fayuan panjue wenshu
gongbu guanli banfa], issued 15 June 2000. For example, the Kunming
Intermediate People's Court has published certain civil case decisions
online since February 4, 2005. Yu Jingmeng, ``Kunming Intermediate
Court: Publishing Decisions on the Internet'' [Kunming zhongyuan:
wangshang gongbu panjueshu], China Youth Daily (Online), 4 February 05.
The Zhengzhou Intermediate People's Court began to require legal
reasoning for criminal sentences in November 2004. Liu Hongjian, Zhao
Yongchun, and An Shiyong, ``No Longer Formulaic but Clear Legal
Language--Zhengzhou Intermediate Court Experiments with Publishing
Reasoning for Criminal Sentences'' [Buzai yong geshi yuyuan yibi daiguo
ershi yong fayu fayuan qingxi daolai--Zhengzhou zhongyuan shixing
liangxing liyou zhanshi zhidu], Fuzhou Daily (Online), 9 November 04.
\18\ In Shaanxi province, rural basic level court judges earn
between 500 to 800 yuan per month. Urban judges in Xi'an or Guangdong
earn several thousand yuan per month. Experienced judges and recent law
graduates are commonly ``raided'' by courts in more developed coastal
areas. Over 65 percent of basic-level Shaanxi courts had no new
personnel pass the national judicial exam from 1999 to 2003. As one
vice president of a Yan'an court noted, 61 percent of the judges on his
court were 40 years or older, and within 5 to 10 years, approximately
60 percent of the judges on his court would retire or leave. However,
since 1999, his court has had no new judges join. These trends have
increased the workload of rural basic people's courts. Rural court
authorities strongly advocate reducing the required criteria for judges
in rural areas, perhaps allowing graduates with only a vocational
school (dazhuan) degree to serve or allowing individuals with lower
scores on the national judicial exam to serve. Du Meng, ``Difficult to
Enter, Difficult to Stay, Poor Treatment, Old Age: The Crisis of the
Gap Among Shaanxi Judges Becomes Prominent'' [Jin ren nan liu ren nan
daiyu di nianling da: shanxi faguan duanceng weiji aoxian], Legal Daily
(Online), 26 April 05.
\19\ CECC, 2003 Annual Report, 65-6.
\20\ Ibid. Local courts often report to Party authorities seeking
their assistance in resolving outstanding financial and personnel
issues, reducing judicial independence by making court officials
dependent on Party leaders for career and institutional development.
Ren Hongqi and Wang Yuxin, ``Xixia County Party Committee Solves Three
Large Problems for the Courts in Three Years'' [Xixia xian wei san nian
wei fayuan jiejue san jian da shi], Beijing News (Online), 3 September
04.
\21\ CECC, 2004 Annual Report, 81 and nn.781-82.
\22\ See generally Benjamin Liebman, ``Watchdog or Demagogue? The
Media in the Chinese Legal System,'' 105 Colum. L. Rev. 1 (2005).
\23\ CECC, 2004 Annual Report, 79.
\24\ The SPC has attempted to address some of these problems
through limiting judicial actions which may be disciplined under
responsibility systems. Ibid., 78 and n.744; Ni Shouming, ``Based On
`No Mistakes and Rapid Development': Xintai Courts Implement Diligent
and Honest Self-Discipline Foundation'' [Lizu yu ``bu chu shi kuai
fazhan'': Xintai fayuan shixing qin jian zilu jijin zhidu], China Court
Network (Online), 5 October 04.
\25\ CECC, 2004 Annual Report, 79-82.
\26\ Wei Wenbiao, ``Request for Advice from `Higher Authorities'
Same as Changing Case Decision' '' [Pan an qingshi ``shangji'' dang
gai], Yanzhao Metropolis Daily reprinted in Guangming Daily (Online),
24 January 05. Chinese judicial authorities at both the central and
local level have attempted to limit the use of internal advisory
requests (qingshi), but reforms often prove difficult to enforce in
light of the incentives created by responsibility systems. For further
discussion, see CECC, 2004 Annual Report, 78-81.
Notes to Section V(d)--Democratic Governance and Legislative Reform
\1\ Kevin O'Brien and Lianjiang Li, ``Accommodating `Democracy' in
a One-Party State: Introducing Village Elections in China'' in
Elections and Democracy in Greater China, eds. Larry Diamond and Ramon
H. Myers (New York: Oxford University Press, 2001), 104-6, 109-10, 119-
20, 124-5.
\2\ Shi Weimin, ``Open and Direct Elections--Research on the System
of Township LPC Elections'' [Gongxuan yu zhixuan--xiangzhen renda
xuanju zhidu yanjiu], (Beijing: China Social Science Publishing Press,
2000), 301-2.
\3\ John Pomfret, ``Taking on the Party in Rural China: Reformer
Risks Livelihood for Direct Elections,'' Washington Post (Online), 27
September 03.
\4\ Directly elected village committees, for example, remain
heavily controlled by Party organizations. One Fujian survey revealed
that 66 percent of village committee heads are party members, while 55
percent of village committee members are. Wu Miao, ``A Quantitative
Analysis of the Quality of Village Committee Elections'' [Cunweihui
xuanju zhiliang de lianghua fenxi], in Silent Revolution [Wusheng de
geming], ed. Yawei Liu (Xi'an: Northwest University Press, 2002), 114-
5.
\5\ Shi Yonghong, ``Some Jiangsu Bureaus Heavily Engage in
`Advertising Their Accomplishments' '' [Jiangsu bufen danwei da da
``zhengji guanggao''], Beijing News (Online), 15 December 04.
\6\ CCP Central Committee Decision Regarding Strengthening the
Party's Construction and Ability to Rule [Zhonggong zhongyang guanyu
jiaqiang dang de zhizheng nengli jianshe de jueding], issued 19
September 04.
\7\ For a different translation of the above quote which makes the
point in a slightly different fashion, see China's State Control
Mechanisms and Methods, Hearing of the U.S.-China Economic and Security
Review Commission, 14 April 05, Written Statement submitted by Richard
Baum, Director of the UCLA Center for Chinese Studies.
\8\ Village Elections in China, Staff Roundtable of the
Congressional-Executive Commission on China, 8 July 02, Written
Statement submitted by Yawei Liu, Associate Director, The Carter
Center's China Village Elections Project; International Republican
Institute, Village Elections in China: Progress, Problems and
Prospects, January 2001.
\9\ Li Lianjiang, ``The Empowering Effect of Village Elections in
China,'' 43 Asian Survey 648 (2003); ``Elections and Popular Resistance
in Rural China,'' 16 China Information 89 (2002).
\10\ Xiang Jiquan, ``The Practical Basis and Effects of China's
Village Autonomy'' [Zhongguo cunmin zizhi de shijian jichu he
chengxiao], in Silent Revolution, 312-3.
\11\ In addition to the examples discussed in the text, continued
reliance of village officials on higher-level discretionary funding,
mixed with heightened village autonomy, often leads to greater
financial mismanagement. Lily Tsai, ``The Dangers of Decentralization:
Fiscal Mismanagement and Informal Institutions in Rural China,'' 3
April 05, 1 (draft manuscript on file with the Commission).
\12\ Edward Cody, ``An Unusual Sort of Democracy: Allegations of
Party Vote-Buying Surround Village Election in China,'' Washington Post
(Online), 20 June 05; John Ruwitch, ``People Clash With Party in China
Village Poll,'' Reuters (Online), 7 June 05.
\13\ Chairman of the Taishi Village Impeachment Committee Has
Resigned,'' [Taishi cun bamian weiyuanhui zhuren cizhi], Radio Free
Asia, 20 September 05.
\14\ See, e.g., Wang Haiyan, ``Her Election and His Defeat'' [Ta de
dangxuan yu ta de luoxuan], Southern Metropolitan Daily (Online), 17
December 03; Robert L. Moore, ``Don't Count Out China's Communists,
Despite Village Elections, Party Maintains Power,'' Orlando Sentinel
(Online), 27 June 05.
\15\ Village and residents committees (VCs and RCs) are the lowest
level of governance in Chinese rural and urban areas, underneath
township (xiang/zhen) or street committees (jiedaochu). VCs and RCs
serve as tools of top-down social control. They keep tabs on local
residents, provide information to local police, and monitor compliance
with government policies such as birth control and taxation
requirements. However, VCs and RCs also operate as community
institutions addressing local needs. They provide basic social
services, mediate civil disputes, and offer a forum for residents to
address local problems. Anne Thurston, United State Institute for
Peace, ``Muddling Toward Democracy, Political Change in Grassroots
China,'' August 98, 18; Allan Choate, The Asia Foundation, ``Local
Governance in China, Part II, An Assessment of Urban Residents
Committees and Municipal Community Development,'' November 1998, 8-9,
16-25. Chinese authorities began to experiment with VC and RC elections
as a means to address governance challenges posed by social and
economic changes in the 1980s and 1990s. See O'Brien and Li,
``Accommodating `Democracy' in a One-Party State,'' 104-6, 109-10; Li
Fan, ``The Launch of Reforms for Direct Elections of Chinese Urban
Community Residents' Committees'' [Zhongguo chengshi shequ juweihui
zhijie xuanju gaige de qidong: 1998-2003] in Electoral Reform of Urban
Community in China [Zhongguo chengshi shequ zhijie xuanju], ed. Li Fan,
(Xi'an: Northwest University Press, 2003), 7-8.
\16\ PRC Organic Law on Village Committees (Trial), enacted 24
November 87, art. 9
\17\ O'Brien and Li, ``Accommodating `Democracy' in a One-Party
State,'' 111-20.
\18\ PRC Organic Law on Village Committees, enacted 4 November 98,
art. 11; Village Democracy in China, Staff Roundtable of Congressional-
Executive Commission on China, Written Statement of Anne Thurston,
Associate Professor of China Studies, School of Advanced International
Studies; O'Brien and Li, ``Accommodating `Democracy' in a One-Party
State,'' 120-2.
\19\ Li Fan, ``The Launch of Reforms for Direct Elections of
Chinese Urban Community Residents' Committees,'' 10-1.
\20\ Ibid., 12, 16-21; Fu Jianfeng, ``Direct Elections for Urban
Residents Committees: Ningbo Style'' [Chengshi shequ zhixuan de ningbo
moshi], Southern Metropolitan Daily (Online), 5 December 03.
\21\ Li Fan, ``The Launch of Reforms for Direct Elections of
Chinese Urban Community Residents' Committees,'' 13.
\22\ County election leadership groups supervise village election
work. They are comprised of county-level party, LPC, and government
officials. MOCA officials are participants, but not heads, of these
groups. Shanxi Provincial Civil Affairs Bureau Notice Regarding the
Issuance of the ``Shanxi Provincial Village Committee Election Rules''
(Trial) [Shanxi sheng minzhengting guanyu yinfa ``shanxisheng cunmin
weiyuanhui xuanju guicheng (shixing)'' de tongzhi], issued 10 October
99, chapter 1, art. 2(2). 2005 Shanxi provincial regulations state that
MOCA officials should ``guide'' (zhidao) the election process, but that
local Party organizations should play the ``core leadership role''
(lingdao hexin zuoyong). Shanxi Provincial Village Election Rules
(Shanxi zheng cunmin weiyuanhui xuanju banfa], issued 29 July 05, arts.
6, 8.
\23\ Shanxi rules provide that outgoing village committee heads are
generally responsible for nominating the heads of village election
committees. If the former head is unable to serve, the township
government is responsible for selecting the person who will head the
nomination process for village election committee heads. The rules also
provide that the head of the village election committee should be the
village party secretary or other party member with a high degree of
local respect. Ibid., chap. 1, art. 2(3).
\24\ Sun Long and Tong Zhihui, ``Procedural Guidance and the
Regularization of Village Committee Elections'' [Chengxu yindao yu
cunweihui xuanju de guifanhua], in Silent Revolution, 75. Another
Chinese scholar notes, ``[T]here is almost an unwritten rule that not
only is the head of the election committee the village party secretary,
but village party members serve as a matter of course as members of the
election commission. . . .'' Wu Miao, ``A Quantitative Analysis of the
Quality of Village Committee Elections,'' 121.
\25\ Wu Miao, ``A Quantitative Analysis of the Quality of Village
Committee Elections,'' 121. As one Chinese academic noted, ``Experience
reveals that pursuing democratic supervision . . . without democratic
[VC and RC] elections results in a number of problems. Under this
system, the ``democracy'' experienced by residents is an incomplete,
passive democracy . . . . While it may appear on the surface that there
are reforms, the active participation of residents can't be achieved. .
. .'' largely because residents can sense the uselessness of elections.
Li Fan, ``The Launch of Reforms for Direct Elections of Chinese Urban
Community Residents' Committees,'' 37.
\26\ Some local municipal regulations permit migrants lacking local
hukou to register to vote in RC elections. Beijing Municipal Residence
Committee Election Measures [Beijing shi jumin weiyuanhui xuanju
banfa], issued 26 April 00, art. 12. Some draft amendments to national
laws governing RC elections would extend voting rights to individuals
lacking a local hukou, but possessing a fixed place of abode in
municipal areas. Others would limit the franchise based on hukou
identification alone. Lai Haoning, ``Outsiders Should Receive The Right
to Participate in Residents Committees Elections'' [Wailai ren ying huo
juweihui canxuan zige], Beijing News (Online), 18 December 04. Foreign
observers have noted resistance of local residents to enfranchising
migrants and allowing them to participate in decisions regarding the
allocation of revenues generated by collectively owned land.
International Republican Institute, Election Observation Report--Fujian
Province, May 2003, 14-5.
\27\ See, e.g., Zhejiang Provincial Village Committee Election
Measures [Zhejiang sheng cunmin weiyuanhui xuanju banfa], issued 22
October 99, amended 17 September 04, art. 22 (charging the village
electoral commission with organizing campaign speeches, and requiring
candidates wishing to make public speeches to request permission of the
electoral commission). Observers have recommended allowing more
campaigning for VC and RC elections. International Republican
Institute, Election Observation Report--Fujian Province, 3.
\28\ MOCA Notice Regarding Carrying Out the Work of 2005 Village
Committee Elections [Minzheng bu guanyu zuohao 2005 nian cunweihui
huanjie xuanju gongzou de tongzhi], issued 18 January 05, art. 3;
Zhejiang Provincial Village Committee Election Measures, art. 23-4.
\29\ Liu Weitao, ``China's Village Committees Will Generally Hold
Direct Elections This Year, MOCA Officials Explain'' [Woguo cunweihui
jinnian pupian shixing zhixuan minzhengbu jiedu], People's Daily
(Online), reprinted on the Ministry of Justice Web site (Online), 31
January 05.
\30\ See, e.g., Wang Yijun, ``Overloaded With Responsibilities,
Unclear Powers, Organic Law of Residents Committees Will Be Amended''
[Zhineng chaozai zhiquan youxian, chengshi juweihui zuzhifa xiuding],
Ministry of Justice Web site (Online), 28 January 05.
\31\ Linda Jakobsen, ``Local Governance: Village and Township
Direct Elections,'' in Governance in China, ed. Jude Howell (Lanham:
Rowman and Littlefield, 2004), 108-10. Other localities have
experimented with forms of electoral participation in the selection of
township officials, although the extent of citizen participation in
these has been carefully controlled. Ibid., 110-3.
\32\ ``Transcript of MOCA Basic-Level Governance and Community
Development Bureau Chief Zhang Chengfu Online Discussion With
Citizens'' [Minzheng bu jiceng zhengquan he shequ jianshe si sizhang
Zhang Chengfu yu wangyou zai xian jiaoliu shilu], Ministry of Civil
Affairs (Online), 14 January 2005.
\33\ Notice of the Shenzhen Municipal Party Committee and Shenzhen
Municipal People's Government Regarding the Issuance of ``2005-2010
Plan for Shenzhen Municipal Community Construction'' [Zhonggong
shenzhen shiwei, shenzhen renmin zhengfu guanyu yinfa ``Shenzhen shi
shequ jianshe faguihua gangyao 2005-2010 nian'' de tongzhi], Shenzhen
Municipal Government (Online), issued 18 February 05, art. 4(3)(1).
\34\ Wu Miao, ``A Quantitative Analysis of the Quality of Village
Committee Elections,'' 103-4.
\35\ Liu Weitao, ``MOCA: Election Activities Which Have Not Been
Expressly Prohibited By Law Do Not Necessarily Constitute Electoral
Corruption'' [Minzheng bu: falu wei mingque jinzhi de xingwei bushu
huixuan], People's Daily (Online) 26 January 05.
\36\ Young Nam Cho, ``Symbiotic Neighbor or Extra-Court Judge? ''
176 China Quarterly 1068, 1070-73 (2003). This expanded activism is
sometimes a mixed blessing. LPCs often use their power of review to
interfere in the decisions of the institutionally weaker courts (via
the process of individual case supervision), rather than challenge
those of politically more powerful local governments. Ibid.; see also
CECC, 2004 Annual Report, 81.
\37\ Young Nam Cho, ``From `Rubber Stamps' to `Iron Stamps': The
Emergence of Chinese Local People's Congresses as Supervisory
Powerhouses,'' 171 China Quarterly 724, 731-37 (2002).
\38\ Hearings are expressly authorized under article 34 of the PRC
Legislation Law, enacted 15 March 00. According to statistics provided
by one Chinese scholar, from 2000 to 2004, 24 provincial LPCs held 38
hearings regarding legislation. Cai Dingjian, ``The Current State of
Legislative Hearings and Proposals For Improvement'' [Lifa tingzheng de
xianzhuang ji gaijin yijian], Legal Daily (Online), 4 May 05. On
September 27, 2005, the National People's Congress (NPC) held its first
public legislative hearing on a draft amendment to raise the minimum
taxable income. Authorities chose 20 participants (including both
academics and migrant workers) from nearly 5,000 applicants. Cary
Huang, ``A Small Step Toward Transparent Lawmaking.'' South China
Morning Post (Online), 28 September 05.
\39\ Young Nam Cho, ``From `Rubber Stamps' to `Iron Stamps,' ''
735-9.
\40\ Ibid. Prior to 2004, township elections were on a three-year
cycle, while county elections operated on a five-year cycle. Zhao Lei
and Meng Nuo, ``NPC Standing Committee Passes Amendments to Election
and Organic Laws'' [Quanguo renda changweihui tongguo xuanjufa he
defang zuzhifa xiuzheng'an], Xinhua, reprinted in Red Net (Online), 27
October 04.
\41\ Standing committees conduct LPC work when the LPC is not in
plenary session. Presidiums control the operating of the LPC when it is
in plenary session. Shi Weimin, ``Open and Direct Elections,'' 303. LPC
standing committees also meet relatively infrequently, in bimonthly
sessions of only one or two days each. Young Nam Cho, ``From `Rubber
Stamps' to `Iron Stamps,' '' 735-9.
\42\ Shi Weimin, ``Open and Direct Elections,'' 303.
\43\ PRC Election Law for the National People's Congress and Local
People's Congresses, enacted 1 July 79, amended 10 December 82, amended
2 December 86, amended 28 February 95, amended 27 October 04, art. 12.
\44\ As one Chinese scholar has pointed out, local requirements
that migrants must return to their place of hukou registration to
obtain voter registration authorization often deters migrants from
voting in local elections. Shi Weimin, ``Open and Direct Elections,''
154. This is exacerbated by relatively short deadlines for voter
registration. For one recent local initiative to protect migrant voting
rights, see Amendment to the Implementing Regulations for Beijing City
District, County, Township, National Minority Township, and Town LPC
Elections [Beijing shi qu, xian, xiang, minzuxiang, zhen renmin daibiao
dahui daibiao xuanju shishi xize de xiuzheng'an], issued 5 September
03. Note that at least one recent set of provincial regulations has
taken a particularly liberal stance, allowing migrant voters to
register to vote in their place of residence upon merely presenting
their identity card. Decision of the Anhui Provincial LPC Standing
Committee on amending the ``Anhui Provincial LPC Election Implementing
Regulations'' [Anhui sheng renmin daibiao dahui changwu weiyuanhui
guanyu xiugai ``Anhui sheng geji renmin daibiao dahui xuanju xize'' de
jueding], issued 21 April 05, art. 25.
\45\ Specific changes included: (1) charging LPC standing
committees with the responsibility for supervising LPC elections at the
county level and higher (previous law had made local governments
responsible for supervising such LPC elections, and this change made
LPCs somewhat more independent of local government influence); (2)
allowing more open nominations, from groups of individuals rather than
simply parties and mass organizations; (3) expressly permitting the use
of primary elections (yuxuan) as a means to narrow the candidate list;
and (4) allowing a degree of freedom for ``parties, organizations, and
voters'' to engage in campaigning. PRC Election Law for the National
People's Congress and Local People's Congresses, arts. 7, 26, 28, 30.
\46\ See generally Andrew Nathan, Chinese Democracy (Berkeley:
University of California Press, 1985), 193-223. Specific legal changes
made in the 1980s to reduce the competitive nature of LPC elections
included (1) removing language permitting the use of primaries (yuxuan)
to narrow the candidate list, and (2) removing language allowing
independent campaign activities. PRC Election Law for the National
People's Congress and Local People's Congresses, as amended 2 December
86, arts. 28 and 30; see also Shi Weimin, ``Open and Direct
Elections,'' 42-9.
\47\ PRC Election Law for the National People's Congress and Local
People's Congresses, art. 29.
\48\ Shi Weimin, ``Open and Direct Elections,'' 311-7. Election
laws restrict the number of total candidates who may appear on the
ballot, frequently leading to the elimination of independent
candidates. Chinese observers have noted numerous methods by which
independent LPC candidates are effectively blocked from competing in
LPC elections. These include: 1) limiting the number of independent
candidates; 2) imposing short time limitations for nominations (such as
a single day); and 3) simply disallowing independently nominated
candidates from being placed on the ballot. Ibid., 316.
\49\ PRC Election Law for the National People's Congress and Local
People's Congresses, art. 31. Even preliminary candidate lists need be
released only 15 days prior to elections.
\50\ Shi Weimin, ``Open and Direct Elections,'' 460-1.
\51\ Relevant Decisions of the NPC Standing Committee Regarding
Direct LPC Elections at the County Level and Lower [Quanguo renmin
daibiao dahui changwu weiyuanhui guanyu xianji yixia renmin daibiao
dahui daibiao zhijie xuanju de ruogan guiding], issued 5 March 83, art.
2.
\52\ Ibid., art. 1. Chinese authorities have strengthened county
control over township elections since the original 1983 regulations.
The original regulations merely charged county election committees with
the responsibility of ``supervising'' (zhidao) the work of township-
level election committees. Ibid., art. 2. 1986 amendments to the NPC
and LPC electoral law changed this relationship, charging county
election committees with the responsibility of formally directing the
work (lingdao) of local LPC elections, and provincial LPC standing
committees with that of supervising (zhidao) township and county LPC
elections. PRC Election Law for the National People's Congress and
Local People's Congresses, as amended 2 December 86, art. 7. County-
level election leadership groups are the instrument by which county
governments carry out this direction, as well as the tool by which
county Party organizations organize and monitor lower-level LPC
elections. Shi Weimin, Open and Direct Elections, 108-12.
\53\ One late 1990s study of rural LPC elections found that in
nearly every single county surveyed, the local election committee was
headed by the corresponding party head. Over half of the members of the
election committees were elected to LPC seats. Ibid., 112-7.
\54\ Certain Regulations of the NPC Standing Committee on Direct
Election of Representative to County and Lesser Level People's
Congresses [Quanguo remin daibiao dahui changwu weiyuanhui guanyu
xianji yixia remin daibiao dahui daibiao zhijie xuanju de ruogan
guiding], issued 5 March 83, sect. 2(4).
\55\ Shi Weimin, ``Open and Direct Elections,'' 108-123, 311-7.
\56\ [NPC] Statement Regarding the Draft Amendment to the PRC NPC
and LPC Election Law, [Guanyu zhonghua renmin gongheguo quanguo renmin
daibiao dahui he difang geji renmin daibiao dahui xuanju fa xiuzheng an
`caoan' de shuoming], issued 23 August 04, reprinted on People's Daily
(Online), 23 August 04.
\57\ ``. . . [T]hese `elections' are better viewed as
`designations' [by higher level officials]. Carrying out `dictatorship'
under the cover of `democracy' is easy to be uncovered by delegates,
and is what LPC delegates are most dissatisfied with.'' Shi Weimin,
Open and Direct Elections, 317.
\58\ Qin Wen, ``Xu Zhiyong: `Please Believe That Our Electoral
Rights Are Real' '' [Xu Zhiyong: ``Qing xiangxin women de xuanju quan
shi zhenshi de''], Southern Metropolitan Daily (Online), 16 December
03. This followed the appearance of articles in the official press
encouraging the participation of independent candidates in LPC
elections, as well as similar experiments in Shenzhen. Zhao Ling, Wu
Chen, and Guang Xunan, ``December 19, Beijing Elections'' [12 yue 19
ri, Beijing xuanju], Southern Weekend (Online), 11 December 03.
\59\ Ibid. One candidate received significant media attention as a
result of his creation of a ``campaign headquarters,'' staffed in part
by students, to assist his election efforts. Lin Chufang, ``Quiet
Appearance of Individual Campaign Headquarters'' [Geren xuanju shiwu
bangongshi qiaoran xianshen], Southern Weekend (Online), 30 October 03.
\60\ Qin Wen, ``Xu Zhiyong: `Please Believe That Our Electoral
Rights Are Real.' ''
\61\ In the case of one independent candidate, these included
formal official approvals for the placement of posters, a bar on
campaign contributions, and limits on the ability of campaign
volunteers and staff to assist the candidates. Lin Chufang, ``Quiet
Appearance of Individual Campaign Headquarters.'' Election authorities
also refused to allow him to independently organize events to meet
voters. Local election officials required him to submit written
requests in advance regarding such meetings, and barred the media from
attending. For an insider's look at his campaign, see the summary
written by one of his student staff participants, Zhu Sihao, ``An
Initial Exploration in the System of Voter Small Groups'' [Xuanmin
xiaozu zhidu chutan], Heavenly Teahouse, reprinted in China Elections
(Online), 5 May 04.
\62\ Numerous tactics are detailed in Zhu Sihao, ``An Initial
Exploration in the System of Voter Small Groups.'' For example, the LPC
election law requires that independent candidates receive the
nomination of 10 voters to be placed on the final ballot. The local
election commission interpreted this to mean that 10 voters in a
particular voter ``small group'' (out of the 153 in his district)
select independent candidates through filling out a form on the spot.
Combined with the tight restrictions on campaigning and the control of
the voter ``small groups'' by their heads, this limited the ability of
one such candidate to mobilize support in different areas of the
district to meet the nomination requirement.
\63\ PRC Electoral Law for the National People's Congress and Local
People's Congresses.
\64\ Ibid., art. 31.
\65\ Ibid., art. 33. In contrast, prior law had only instructed an
electoral commission to determine a final candidate list and introduce
candidates to the voters, leaving it unclear as to whether electoral
commissions could organize primary elections or general meet-the-
candidate events. Ibid., arts. 31 and 33. Although many local
authorities commonly rely on ``selection'' and ``discussion'' by Party
or township officials to determine LPC candidates, Chinese scholars
noted that some localities increasingly used open primaries during the
1990s to determine final candidate lists. Shi Weimin, ``Open and Direct
Elections,'' 454-5.
\66\ Commission Staff Interview.
\67\ Shi Weimin, ``Open and Direct Elections,'' 69-70.
\68\ PRC Electoral Law for the National People's Congress and Local
People's Congresses, art. 29. More meaningful reform might involve
eliminating the discretionary power of electoral commissions entirely,
by making the use of primaries mandatory, rather than permissive, in
determining the final slate of candidates. This step would appear to be
a logical extension of the NPC legal affairs bureau's own suggestion
that the introduction of primaries (yuxuan) in the 2004 amendments is a
necessary step towards controlling the problems of ``behind-the-scenes
manipulation of elections'' (anxiang congzuo) raised by existing
electoral procedures. ``NPC to Take Up Election Law Amendment Draft''
[Quanguo renda shenyi xuanjufa xiuzhengan], Chinanews (Online), 23
August 04.
\69\ Beijing Party Organization Bureau Notice Regarding Opinions on
the Implementation of Electoral Work Procedure and Related Items in
Beijing Basic-Level Party Committees [Guanyu jingqu jiceng danwei
dangwei huanjie xuanju gongzuo chengxu ji youguan shixiang de shishi
yijian de tongzhi], issued 9 April 04, arts. 2-7; ``Township (Town)
Party Committee Electoral Work Procedure'' [Xiang (zhen) dangwei
huanjie xuanju gongzuo chengxu], Yuanjiang County Party Organization
Bureau (Online), art. 8; Shi Weimin, ``Open and Direct Elections,'' 22.
\70\ Li Lianjiang, ``The Two-Ballot System in Shanxi Province:
Subjecting Village Party Secretaries to a Popular Vote,'' 42 China
Journal 103 (1999).
\71\ Ibid. This system allows ordinary villagers to weed out
candidates they particularly dislike or distrust, but allows Party
members to decide the ultimate winner.
\72\ He Zhongping, ``The Case of Huazhuang, Sichuan: Directly
Elected Village Party Secretaries Must `Pass Three Tests' '' [Sichuan
huazhuang ge'an: zhixuan cunzhishu ``guo san guan''], 21st Century
Business Daily (Online), 1 September 04.
\73\ Guo Xiaojun, ``Open Competition for the Director Position,
Organizational Nominations are the Majority'' [Gongkai jingzheng
zhengju zuzhi tuijian zui duo], Beijing News (Online), 31 May 05; Wang
Ying, ``Lanzhou Experiment of `Citizens Evaluating Officials' ''
[Lanzhou ``minping guan'' shiyan], 21st Century Business Herald
(Online), 26 January 05.
\74\ Fan Lixiang, ``Jiangsu's Direct Broadcast of Official
Selections: The Latent Pressure of Public Nomination/Public Selection''
[Jiangsu zhibo xuanguan: gongtui gongxuan zhengfaqian guize], 21st
Century Business Herald (Online), 29 September 04. The selection
process for the deputy chief position relied on progressive elimination
of candidates in multiple stages process, including open nominations,
graded public speeches, Party background evaluations, and internal
voting on candidates. Public speeches of the candidates were broadcast
live and evaluated by selected graders, as well as a designated
audience of 150 officials and citizens. Audience evaluation of the
candidates comprised 20 percent of the candidate's grade for that
event. Ibid.
\75\ Zhang Tao, ``Public Nomination/Public Election: A Technical
Adjustment Within the System'' [Gongtui gongxuan: tizhi nei de jishu
xing tiaozheng], Southern Metropolitan Daily (Online), 10 December 03.
Notes to Section V(e)--Access to Justice
\1\ For more comprehensive treatment of the xinfang system, see
Laura Luehrmann, ``Facing Citizen Complaints in China 1951-1996,'' 43
Asian Survey, 845, 847 (2003); Carl Minzner, ``Xinfang: An Alternative
to the Formal Chinese Legal System,'' 42 Stanford Journal of
International Law (forthcoming publication 2006); Wang Bixue, ``114,000
Lawyers, But Distributed Unevenly, 206 Counties Have Not a Single
Lawyer'' [11.4 Wan lushi dan fenbu bu junheng woguo 206 xian wu lushi],
People's Daily (Online), 8 June 05.
\2\ Yasheng Huang, ``Administrative Monitoring in China,'' 143
China Quarterly 828, 848 (1995); Kevin O'Brien, ``Neither Transgressive
Nor Contained: Boundary-Spanning Contention in China,'' 8 Mobilization:
An International Journal 51, 60 (2003).
\3\ For an example of petitioning activity, see ``Retired Hangzhou
Teacher Wears White Coat, Promotes the Constitution, and Is Detained 10
Days'' [Hangzhou tuiyi jiaoshi shenchuan baidapao xuanchuan xianfa bei
juliu 10 tian], Boxun (Online), 25 January 04.
\4\ Kevin J. O'Brien and Lianjiang Li, ``The Politics of Lodging
Complaints in Rural China,'' 143 China Quarterly 756, 758 (1995).
\5\ See Section V(a)--The Development of Civil Society.
\6\ See Section V(d)--Democratic Governance and Legislative Reform.
\7\ See Section V(c)--China's Judicial System; CECC, 2004 Annual
Report, 81.
\8\ ``National Xinfang Bureau Chief: 80 Percent of Petitioners Are
Correct'' [Guojia xinfang juzhang: 80% de shangfang you daoli],
Bimonthly Discussion, reprinted in China.org.cn (Online), 20 November
03.
\9\ ``Petitions'' here is used as a shorthand for all xinfang
items, both letters and visits. Chinese statistics on court cases vary
depending on what is counted as a ``case.'' The 2005 Supreme People's
Court Work Report lists the Chinese court system as handling 7,873,745
total cases, including roughly two million ``executed'' (zhixing)
cases. 2005 Supreme People's Court Work Report, 9 March 05. In
contrast, the 2004 SPC Work Report lists only 5,687,905 cases,
apparently excluding the two million executed cases. 2004 SPC Work
Report, 10 March 04. The text uses the six million figure to keep
consistency with the Commission's prior annual report, as well as with
the SPC's own prior statistics.
\10\ 2005 SPC Work Report, 9 March 05.
\11\ See Carl Minzner, ``Xinfang: An Alternative to the Formal
Legal System.'' For information on the interplay of citizen petitioning
efforts with the administrative legal structure, see generally Kevin
O'Brien, ``Suing the Administrative State: Administrative Litigation in
Rural China,'' 51 China Journal 76 (2004).
\12\ According to one Chinese academic survey of 632 petitioners in
Beijing, approximately two-thirds, or 401 had previously attempted to
file suit in local courts. 42.9 percent of these were rejected and 54.9
percent indicated that they disagreed with the legal decision of the
court. Zhao Ling, ``China's First Report on Xinfang Work Receives High-
Level Attention'' [Guonei shoufen xinfang baogao huo gaoceng zhongshi],
Southern Weekend (Online), 4 November 04.
\13\ Lang Pingping, ``Reform of the Xinfang System Must Be
Coordinated With Judicial Reform'' [Xinfang zhidu de gaige bixu gen
sifa zhidu de gaige xiang xietiao], China Youth Daily (Online), 30
November 04. As scholars have noted, under 2 percent of rural Chinese
grievances ``involve a lawyer, a court, or any office of the judicial
system.'' CECC, 2004 Annual Report, 72 (citing Ethan Michelson,
``Causes and Consequences of Grievances in Rural China,'' (draft
manuscript on file with the Commission)). U.S. studies have found that
approximately 10 percent of American grievances involve lawyers. Survey
data suggest that 10 percent of Beijing ``disputes'' end up in court.
Ibid.
\14\ Zhao Ling, ``China's First Report on Xinfang Work Receives
High-Level Attention''; Li Hui, ``The Dispute Regarding Yu Jianrong's
Proposal For the Elimination of Xinfang Bureaus: Does It Assist Xinfang
Reform?'' [Yu Jianrong xinfang ban chexiao shifou you li xinfang zhidu
gaige yin zhengyi], People of the Times Weekly, reprinted in Sina.com
(Online), 17 November 04.
\15\ Zhao Ling, ``China's First Report on Xinfang Work Receives
High-Level Attention.''
\16\ Hannah Beech, ``Nothing Left to Lose,'' Time Asia (Online), 23
February 04; Carl Minzner, ``Xinfang: An Alternative to the Formal
Legal System.''
\17\ For more comprehensive discussion, see Carl Minzner,
``Xinfang: An Alternative to the Formal Legal System.''
\18\ These systems also punish officials for a wide range of
administrative behavior, including falsification of xinfang reports to
higher officials, failure to execute directives, or abuse of
petitioners. See, e.g., Qingdao Notice on Implementing Leadership
Responsibility System in Xinfang Work [Guanyu shixing xinfang gongzuo
lingdao zeren zhuijiu zhi de jueding], issued May 19, 2003, art. 8(5,
6).
\19\ For a more comprehensive discussion, see Carl Minzner,
``Xinfang: An Alternative to the Formal Legal System.''
\20\ Anhui Provincial Party Office and Provincial Government Notice
Regarding the Implementation Details of the Xinfang Responsibility
System for Leaders [Zhonggong anhui sheng bangongting, anhui sheng
renmin zhengfu bangongting guanyu yinfa Anhui sheng xinfang gongzuo
lingdao zeren zhuijiu zhi shishi xize de tongzhi], issued September 2,
2003, art. 4(3).
\21\ Ibid., art. 6(2).
\22\ Sara Davis, ``China's Angry Petitioners,'' Asian Wall Street
Journal (Online), 25 August 05; Massive Crackdown on Petitioners in
Beijing, Human Rights in China (Online), 8 September 04; CECC, 2004
Annual Report, 75.
\23\ Thomas Bernstein, Center for the Study of Democracy, Unrest in
Rural China: A 2003 Assessment (2004), 11-2 (noting one example of a
countywide petitioning organization with leadership skilled in covert
operational tactics); Access to Justice, Staff Roundtable of the
Congressional-Executive Commission on China, 12 July 04, Written
Statement submitted by Professor Kevin O'Brien, Professor at the
University of California, Berkeley.
\24\ ``National Xinfang Bureau Chief: 80 Percent of Petitioners Are
Correct,'' Bimonthly Discussion.
\25\ 2005 SPC Work Report, 9 March 05. In contrast, previous SPC
Work Reports indicate that the number of formal appeals handled by the
SPC appears to have decreased, from 3,567 in 2003 to 2923 in 2004.
Ibid; 2004 SPC Work Report.
\26\ Zhao Ling, ``China's First Report on Xinfang Work Receives
High-Level Attention.''
\27\ Xiao Tangbiao, ``The Situation of Political Stability in 20
Mainland Villages--A Look at Peasant Movements'' [Ershi yu lai dalu
nongcun de zhengzhi wending zhuangkuang--yi nongmin xingdong de bianhua
wei shijiao], 21st Century, 51-60 (2003).
\28\ Zhao Ling, ``China's First Report on Xinfang Work Receives
High-level Attention.'' Mass petitions to county level and higher Party
and government organs increased by a multiple of 2.8 and 2.6
respectively from 1995-2000, with a further 7.2 and 11.7 percent
increase from 2000 to 2001. Xiao Tangbiao, ``The Situation of Political
Stability in 20 Mainland Villages--A Look at Peasant Movements.''
Provincial authorities have noted steep increases in petitioning
activity as well. Henan provincial xinfang authorities noted a 28.3
percent increase in xinfang cases in 2004 over 2003, and a 35 percent
increase in the number of collective petitioners traveling to Beijing.
Liu Binglu, ``3,000 PSB Heads `Seize' Pending Petitions'' [San qian
gong'an buzhang `jina' xinfang chen'an], Beijing News (Online), 25 May
05.
\29\ Chinese government authorities rejected divergent calls to
either strengthen or weaken xinfang institutions, choosing instead to
follow a ``third path'' of attempting to regularize the system. Zhao
Ling, ``Amendments to Xinfang Regulations Seek to Take a `Third Path'
'' [Xinfang tiaoli xiugai yu zou ``di san tiao lu''], Southern Weekend
(Online), 13 January 05.
\30\ Xinfang Regulations [Xinfang Tiaoli], issued 17 January 05
[hereinafter 2005 Xinfang Regulations], art. 32.
\31\ Ibid., art. 14.
\32\ Ibid., arts. 31, 34-5. The amended 2005 regulations eliminate
reference to the (now abolished) administrative system of custody and
repatriation as a punitive measure for petitioner infractions. Compare
ibid., art. 47, with Xinfang Regulations [Xinfang Tiaoli], issued
October 28, 1995 [hereinafter 1995 Xinfang Regulations], art. 22.
\33\ 2005 Xinfang Regulations, art. 13.
\34\ Ibid., art. 11-2.
\35\ The 1995 regulations merely required governments at the county
level and higher to either establish xinfang bureaus (jigou) or
designate personnel to handle xinfang issues. 1995 Xinfang Regulations,
art. 6. In contrast, the 2005 regulations mandate the establishment of
formal xinfang bureaus for county level and higher governments.
Additionally, the amended regulations require that township governments
either establish formal xinfang bureaus or designate personnel to
handle xinfang issues. 2005 Xinfang Regulations, art. 6. While xinfang
responsibility systems are commonly used in various levels of Chinese
government, the 2005 national amendments mark the first time they have
been formally included in any of the comprehensive provincial or
national xinfang regulations. The 2005 regulations also charge xinfang
bureaus with reporting (along with other statistics) the rate at which
various bureaus adopt the proposals submitted by xinfang bureaus for
corrective action and policy, this also likely represents an effort to
add more teeth to the oversight function of xinfang bureaus. Ibid.,
art. 39 (2), (3).
\36\ Ibid., art. 10.
\37\ In contrast with prior regulations, the 2005 regulations
charge government xinfang bureaus with the responsibility for raising
proposals of corrective action, policy changes, and administrative
punishments with the appropriate bureaus. Ibid., art. 36-8.
\38\ Ibid., art. 39.
Notes to Section V(f)--Commercial Rule of Law and the Impact of the
WTO
\1\ Suan Yuanzhong, ``The Research Committee on WTO Organizational
Law has a Significant Role to Play'' [Shimao zuzhifa yanjiuhui renzhong
daoyuan], Legal Daily (Online), 8 January 04.
\2\ 2002 Supreme People's Court Work Report, 11 March 02, sect.
2(4).
\3\ American Chambers of Commerce, PRC and Shanghai, 2004 White
Paper, September 2004, 4 (``From the perspective of the American
business community on the ground, China's performance on WTO remains a
cornerstone in laying the foundation for business success.'').
\4\ Foreign-invested enterprises have enjoyed more and faster
access to the Chinese market. ``By the end of 2003, China had approved
almost 400,000 foreign-invested enterprises (FIEs) with a contractual
value of over $750 billion from 180 countries, including FIEs from 400
of the world's 500 largest multinational enterprises.'' James M.
Zimmerman, China Law Deskbook, A Legal Guide for Foreign-Invested
Enterprises (Chicago: American Bar Association, 2004), 1-2. In August,
the Ministry of Commerce also reduced the time within which approvals
for foreign-invested enterprises to one month for provincial level
authorities and three months for national authorities. MOFCOM Time
Limits for Approving FIE Projects [Waishang touzi shangye lingyu
xiangmu shenpi shixian], issued 16 August 05.
\5\ American Chambers of Commerce, PRC and Shanghai, 2004 White
Paper, 10.
\6\ Ibid., 10 (noting that WTO-compliant legal changes and a more
open investment structure are the primary reasons for additional
optimism by U.S. companies operating in China).
\7\ Yang Ruichun, ``The Three Year Anniversary of China's WTO
Accession: An Interview with Long Yongtu'' [Zhongguo jiaru WTO
sanzhounian zhichu Long Yongtu yu jizhe jiqing duihua], Southern
Weekend (Online), 11 November 04.
\8\ Ibid.; Wan Xuezhong and Chen Jingjing, ``WTO Entry Advances
Formation of Rule of Law Concept'' [Rushi cujinle fazhi liniande
xingcheng], Legal Daily (Online), 4 January 05.
\9\ `` `City Resident Treatment' Late to Arrive'' [Chidao de
``shimin daiyu''], Red Net (Online) 17 February 04; ``Experts Propose
Registered Migrants Should Enjoy Same Benefits as Local Hukou Holders''
[Zhuanjia jianyi Beijing liudong renkou beian dengji xiangshou shimin
daiyu], Beijing News (Online), 29 May 05.
\10\ ``Urban resident treatment'' is a term taken from the WTO
context that is used for rhetorical force to push local governments to
change their policies with regard to migrants. Ge Yanfeng, Wang Xu,
Tian Kai, ``The Impact of WTO Accession on China's Society and
Government Policy Choices-Completely Strengthens the Protection of
Disadvantaged Communities'' [Rushi dui zhongguo shehuide yinxiang ji
zhengfu zhengce xuanze-quanmian jiaqiang dui ruoshi quntide baohu],
State Council Development Research Center (Online), 16 May 02;
``Xiamen's People's Congress Twelfth Session First Government Work
Report'' [Xiamenshi dishier jie remin daibiao dahui diyi ci huiyi
zhengfu gongzuo baogao], Xiamen People's Government (Online), 3
December 02.
\11\ Office of the U.S. Trade Representative, 2005 National Trade
Estimate Report on Foreign Trade Barriers, 30 March 05, 79.
\12\ Ibid., 112.
\13\ Cheng Dawei, ``Post-Transition Period Will Test Our Wisdom,''
Economic Daily, 8 December 04 (FBIS, 10 December 04). The author
repeatedly describes interaction with foreign competition as a threat
to Chinese enterprises.
\14\ See Discussion of Wireless Local Area Network Architecture and
Privacy Infrastructure (WAPI) in CECC, 2004 Annual Report, 87.
\15\ Office of the U.S. Trade Representative, USTR 2003 Report to
Congress on China's WTO Compliance, 11 December 03, 32; Office of the
U.S. Trade Representative, USTR 2004 Report to Congress on China's WTO
Compliance, 11 December 04, 37.
\16\ PRC Steel Industry Development Policy [Gangtie chanye fazhan
zhengce], issued 20 July 05. The steel policy seeks to increase the
domestic steel industry's capacity to compete globally. Ibid., art. 1.
To accomplish this goal, the policy encourages domestic enterprises to
``use domestic facilities and technology'' while importing only
``equipment and technology that cannot be made domestically or for
which domestic supply is unable to satisfy the requirements.'' Ibid.,
art. 18. The policy prohibits foreign control over domestic steel
enterprises and restricts foreign investment in the steel industry.
Ibid., art. 23. Foreign companies wishing to invest in the domestic
steel industry must have produced either 10 million tons of steel or 1
million tons of high-alloy specialty steel during the previous year.
Ibid. If the foreign company can fulfill these requirements it may
invest in existing Chinese steel facilities, but may not create new
ones. ``Steel Industry's New Plan Released--Steel Factories Access
Closed Down'' [Gangtie chanye xinzheng chutai--gangchang zhunru damen
guanbi], Caijing (Online), 16 July 05.
\17\ Office of the USTR, 2004 Report to Congress on China's WTO
Compliance, 63.
\18\ E.g., Office of the U.S. Trade Representative, Results of
Special 301 Out-of-Cycle Review on China, 29 April 05.
\19\ Intellectual Property Protection as Economic Policy: Will
China Ever Enforce its IP Laws?, Staff Roundtable of the Congressional-
Executive on China, 16 May 05, Written Statement submitted by Eric H.
Smith, President, International Intellectual Property Alliance.
\20\ Intellectual Property Protection as Economic Policy: Will
China Ever Enforce its IP Laws?, Written Statements submitted by Eric
H. Smith and Daniel C.K. Chow, Robert J. Nordstrom Designated Professor
of Law, Ohio State University Michael E. Mortiz College of Law.
\21\ At the April 2004 meeting Wu Yi committed to specific actions
and generally to ``[s]ignficantly reduce IPR infringement levels''
through methods including increasing penalties, conducting a nationwide
enforcement campaign against IPR violations, and extending the ban on
government use of illegal software to the local government level. ``The
U.S.-China JCCT: Outcomes,'' Department of Commerce Office of the China
Economic Area (Online), April 2004. At the July 2005 meetings she made
additional specific commitments including cracking down on the export
of pirated products, increasing police cooperation on IP between China
and the United States, and ensuring that the state-owned sector uses
only legal software. ``The U.S.-China Joint Commission on Commerce and
Trade (JCCT) Outcomes on Major U.S. Trade Concerns,'' U.S. Department
of Commerce and Office of the U.S. Trade Representative (Online), 11
July 05.
\22\ ``Recent Developments in China's IPR Protection'' [Zhongguo
zhishi chanquan baohude xinjinzhan], White Paper of China's State
Council Information Office, 21 April 05 (citing statistics on the
levels of enforcement activity and results in the form of money spent,
activities conducted, and materials seized or destroyed).
\23\ Both the American Chambers of Commerce in China and USTR
reported in fall 2004 that the overall situation of IPR infringement is
worsening. American Chambers of Commerce, PRC and Shanghai, 2004 White
Paper, 28; Office of the USTR, 2004 Report to Congress on China's WTO
Compliance, 63.
\24\ One witness testified that the way to stop infringement is to
use criminal enforcement mechanisms to go after pirates themselves,
while another witness pointed out that one city, Yiwu, Zhejiang
Province, contains vast markets for counterfeit product and that the
production of counterfeit products there supported the local economy.
Intellectual Property Protection as Economic Policy: Will China Ever
Enforce its IP Laws?, Testimony of Eric H. Smith and Daniel C.K. Chow.
China's State Council released a White Paper trumpeting the efforts
China has made to protect intellectual property filled with statistics
on the amount of enforcement that has occurred in recent years. There
is no discussion in the document, however, of the effectiveness of
these enforcement measures. ``Recent Developments in China's IPR
Protection,'' White Paper of China's State Council Information Office.
TRIPs provides that criminal penalties ``available shall include
imprisonment and/or monetary fines sufficient to provide a deterrent,
consistently with the level of penalties applied for crimes of a
corresponding gravity.'' WTO Agreement on Trade-Related Aspects of
Intellectual Property Rights, art. 61 [hereinafter TRIPs Agreement].
\25\ ``We have the examples of Korea, Taiwan, and other countries
in the Asian region that have driven down piracy rates from, in the
mid-1980s, 100 percent piracy in Taiwan and Korea, to--believe me--
piracy rates at the latter part of the 1990s that were down to 15
percent. How did they do it? Very simple. They put pirates in jail. If
it was not a jailable offense, they fined them at levels that were
deterrent. Until China makes the political commitment to do that, it is
not going to be able to deal with this problem.'' Intellectual Property
Protection as Economic Policy: Will China Ever Enforce its IP Laws?,
Testimony of Eric H. Smith.
\26\ ``The HKSAR effectively deployed a new legal weapon that its
neighbors should emulate: tough licensing regulations on optical media
production and equipment import and export chased many pirate plants
elsewhere, and scores of pirate facilities were taken down.''
International Intellectual Property Alliance, 1999 Special 301
Recommendations (Online), 15 February 1999.
\27\ TRIPs Agreement, art. 61.
\28\ PRC Criminal Law, enacted 1 July 79, amended 1 October 97, 14
March 97, 25 December 99, 31 August 01, 29 December 01, 28 December 02,
arts. 213-20. The American Chambers of Commerce in China discuss the
deficiencies in the criminal law. American Chambers of Commerce, PRC
and Shanghai, 2005 White Paper, September 2005, 48 n.1 (``The most
glaring deficiency in the current IPR regime is the one key law not
revised when China joined the WTO--its criminal code. This should be
revised to provide stronger protection, enhanced penalties and further
clarification of standards.'').
\29\ Office of the USTR, Results of Special 301 Out-of-Cycle Review
on China, 4. Another aspect of this is evidentiary: in cases where the
amount of goods seized does not exceed the threshold measured by the
value of the infringing goods, records of additional sales may be used.
Unfortunately, these records usually do not exist or are not seized
with the infringing materials.
\30\ At the WTO, China specifically stated that it would share a
draft of any measure that would revise or replace the previous SPC
interpretation on transfers of IP cases from administrative to criminal
enforcement with other WTO members. Minutes of the Meeting of 18
November 2003, WTO TRIPs Council, 4 February 04, para. 30 (the
Representative of China stated that ``[a]s a major arm in IP
enforcement, the judiciary departments in China were also subjected to
the principle of transparency, which was evidenced by the public
soliciting of comments for judicial interpretations. The Supreme
People's Court would further broaden the scope of commenting in the
course of interpretation.''); Minutes of Meeting of 1-2 December 2004,
WTO TRIPs Council, 11 January 05, para. 276 (``Last year at the TRIPS
Council, China had pledged to increase transparency by making judicial
interpretations on IPR matters available for public comment.''). In
addition, it would have been helpful to publish a draft because issuing
a new interpretation with lowered thresholds was a commitment China
made at the 2004 plenary session of the JCCT, ``The U.S.-China JCCT:
Outcomes,'' Department of Commerce Office of the China Economic Area
(Online), and the reception by U.S. trade officials might have been
less negative if they had provided comments on a draft interpretation
and had those comments favorably considered. Office of the USTR,
Results of Special 301 Out-of-Cycle Review on China, 4.
\31\ Office of the USTR, Results of Special 301 Out-of-Cycle Review
on China, 4.
\32\ Supreme People's Court and Supreme People's Procuratorate
Interpretation Concerning Certain Questions of Using the Criminal Law
to Handle Violations of Intellectual Property Rights [Zuigao renmin
fayuan, zuigao renmin jianchayuan guanyu banli qinfan zhishichanquan
xingshi anjian juti yingyong falu ruogan wentide jieshi], issued 8
December 04. Most enforcement in China occurs within an administrative
system operated by the local administrations of industry and commerce.
Analysts generally believe that the weak nature of such administrative
enforcement has resulted in China's currently high levels of piracy and
counterfeiting. The Interpretation also broadened the circumstances
that precipitate a transfer to criminal enforcement such as mandating
criminal liability for accomplices, a situation that did not
precipitate a transfer under the previous interpretation. On the
negative side, however, the interpretation eliminated automatic
transfer to criminal enforcement for repeat offenders and in cases
involving well-known trademarks. Office of the USTR, Results of Special
301 Out-of-Cycle Review on China, 4.
\33\ American Chambers of Commerce, PRC and Shanghai, 2005 White
Paper, 46 (``SIPO relied on new guidelines issued after the patent had
been granted, and then did not allow the patentee the opportunity to
meet the revised data provision standard of those guidelines.'');
``Viagra Patent Case Opens, Pfizer's Market Domination the Main Issue''
[Weige zhuanliquan an kaishen huirui duba shichang dalue]'' Xinhua
(Online), 31 March 05.
\34\ ``Pfizer Appeals China's Revocation of Viagra Patent,''
Bloomberg (Online), 28 September 04. China's State Food and Drug
Administration also loosened the designation of the pharmaceutical
product as a controlled substance, allowing it to be dispensed in
pharmacies, following the Board's finding invalidating the patent. This
loosening of control benefits the U.S. company as long as the appeal is
active but is limited in effect by the rampant piracy in the market.
Elaine Kurtenbach, ``Pfizer Appeals Chinese Government Decision Against
Patent for Viagra,'' Associated Press (Online), 28 September 04.
\35\ ``The role of counterfeiting in Yiwu, it is no exaggeration to
say, supports the entire local economy and legitimate businesses, such
as restaurants, nightclubs, warehouses, transportation companies, and
hotels. All of them have grown up and they support the trade in
counterfeit goods. If you shut down the trade in counterfeit goods in
Yiwu, you will probably shut down the local economy. Because the
government has invested in these wholesale markets, they are heavily
defended at the local level.'' Intellectual Property Protection as
Economic Policy: Will China Ever Enforce its IP Laws?, Testimony of
Daniel C.K. Chow.
\36\ ``Government Enforces Ban on Falun Gong Publications,''
Xinhua, 23 July 99 (FBIS 23 July 1999).
\37\ ```Truth' of `Folk Cult' Falun Gong,'' Southern Weekend, 13
March 98 (FBIS, 13 March 98).
\38\ Chinese officials had barred the importation of U.S. poultry
products following the discovery of one case of low-pathogenic avian
flu in a bird in Delaware in February 2004. U.S. Department of
Agriculture Foreign Agricultural Service, China Poultry and Products
Semi-Annual 2005 Global Agricultural Information Network Report, 1
February 05, 3.
\39\ ```Measured Progress' at JCCT Meeting,'' Washington Trade
Daily (Online), 12 July 05 (``The agriculture secretary also announced
the approval by China of NK603, a variety of Round Up Ready corn--
bringing the total Chinese biotech approvals to eight varieties of
corn, two of cotton, seven of canola and one variety of soybeans.'').
\40\ ``U.S., China Agree to Food Safety Understanding at JCCT
Meetings,'' Inside U.S.-China Trade (Online), 13 July 05.
\41\ U.S. Department of Agriculture Economic Research Service,
China's Agricultural Imports Boomed During 2003-04, May 05, 2.
\42\ In late 2004, U.S. and Chinese officials reached an agreement
in principle to restart imports of certain low-risk bovine products
from the U.S. but these primarily constitute non-edible products that
either contain no bovine products (cattle feed), reproductive materials
(bull semen and embryos), and bovine products that have no proteins
(non-protein beef tallow). ``U.S., China Reach Deals to Resume Trade in
Beef Products, Feed,'' Inside U.S.-China Trade (Online), 2 December 04.
Importation of some of those products resumed in July 2005. General
Administration of Quality Supervision, Inspection, and Quarantine
Announcement No. 97 [2005 nian di 97 hao], issued 11 July 05.
\43\ China banned imports of U.S. beef following the discovery in
December 2003 of a single cow in the U.S. herd with Bovine Spongiform
Encephalopathy (BSE), commonly known as mad cow. ``USDA BSE Update,''
U.S. Department of Agriculture (Online), 25 December 03. The U.S.
Department of Agriculture has implemented a system, in place since June
2004, that has dramatically increased the number of U.S. cows tested
for BSE and the current surveillance program complies with
international standards maintained by the World Organisation for Animal
Health (commonly known as OIE) for certification that beef is safe.
``Statement by Agriculture Secretary Mike Johanns Regarding the OIE's
Adoption of Changes to the International Animal Health Code Chapter on
BSE,'' U.S. Department of Agriculture (Online), 26 May 05.
\44\ These two bans ended in late 2004, except for cherries from
California. Office of the USTR, 2005 National Trade Estimate Report on
Foreign Trade Barriers, 90-1.
\45\ The maximum residual level has not been enforced yet. Ibid.,
91. WTO Members may avoid a claim that their phytosanitary measure
lacks a scientific basis if they rely on an international standard. WTO
Agreement on the Application of Sanitary and Phytosanitary Measures,
arts. 3.1, 3.3.
\46\ Rebates of VAT paid upon export exist for many products but
this year the rebate appears to provide a subtle means to effect a
specific transfer payment to corn producers. By calculating the rebate
from a fixed base price instead of the contract price for corn, Chinese
authorities can raise the rebate in spite of market conditions. For
2005, even though the market price has dropped following a large 2004
harvest, the fixed base price has increased from 860 RMB/ton to 1100
RMB/ton. This artificially raises the value of the VAT export rebate
from 112 RMB/ton to 143 RMB/ton, regardless of contract price. U.S.
Department of Agriculture Global Agricultural Information Network
(GAIN) Report, People's Republic of China Grain and Feed Corn Trade
Update 2005, 21 March 05, 3. This is while corn exports from China have
been increasing. In early 2005, the U.S. Foreign Agricultural Service
raised by one-third its estimate of the value of corn exports from
China, all regulated by the Chinese government. In February 2005, the
Chinese government issued a 3 million metric ton (mmt) corn export
quota, compared to a 1.4 mmt export quota issued for the first half of
2004. China's trade in corn is primarily with countries in the Asia-
Pacific region and, except for some small quantities in border areas,
is all outbound. These subsidies could affect U.S. corn exports by
undercutting the price for corn in existing U.S. overseas markets, but
since China's corn exports are still small compared to those of the
United States, this effect is probably not occurring yet. China does
not import corn from the United States. U.S. Department of Agriculture
Global Agricultural Information Network (GAIN) Report, People's
Republic of China Grain and Feed Corn Trade Update 2005, 21 March 05,
2-3.
\47\ Office of the USTR, 2005 National Trade Estimate of Foreign
Trade Barriers, 94; Working Party Report on the Accession on the
People's Republic of China to the WTO, 10 November 01, para. 234. The
WTO Agreement on Agriculture allowed its original exporting members to
eliminate impermissible export subsidies over a period of years.
``Agriculture: Fairer Markets for Farmers,'' World Trade Organization
(Online). Because finding a subsidy requires an investigation and
interpretation of the relevant rules, discussions on these issues are
always ongoing, often with no resolution for years. Office of the USTR,
2004 Report to Congress on China's WTO Compliance, 58.
\48\ Working Party Report on the Accession of the People's Republic
of China to the WTO, 10 November 01, para. 234. Once eliminated, China
may not introduce any new export subsidies. WTO Agreement on
Agriculture, art. 9.
\49\ Notification of the People's Republic of China, WTO Committee
on Agriculture, 7 September 04; and Notification of the People's
Republic of China, WTO Committee on Agriculture, 5 April 05.
\50\ The U.S. government has reported on the Chinese government's
changing approach to the agricultural sector, from a source of tax
revenue in both food and cash terms to an eventual participant in
export-led growth. Recent changes have seen ineffective attempts to
provide structural support. In 2004, the Chinese government began to
attempt to make transfers that would directly benefit farmers. United
States Department of Agriculture Economic Research Service Electronic
Outlook Report, China's New Farm Subsidies, 28 February 05, 2.
\51\ The Ministry of Commerce announced the creation of a mechanism
to address inconsistent application of law in 2002 but it is not clear
whether agricultural agencies have instituted similar mechanisms nor
the current status of the MOFCOM office. Office of the USTR, 2004
Report to Congress on China's WTO Compliance, 83.
\52\ China and the WTO: Assessing and Enforcing Compliance, Hearing
of the U.S.-China Economic and Security Review Commission, Statement
submitted by Gary C. Martin, President and Chief Executive Office,
North American Export Grain Association, 3-4 February 05, 353
(asserting that the requirements of AQSIQ's document No. 73 have given
inspection and quarantine officials the ability to cause these problems
for U.S. grain shipments).
\43\ Ibid., 358.
\54\ Protocol of Accession of the People's Republic of China to the
WTO, Part I.2(C)2.
\55\ U.S. Chamber of Commerce, China's WTO Implementation: A Three-
Year Assessment, September 04, 10; Office of the USTR, 2004 Report to
Congress on China's WTO Compliance, 82; American Chambers of Commerce,
PRC and Shanghai, 2004 White Paper, 28.
\56\ For example, drafts of the Anti-Monopoly Law, under
consideration for almost a decade, have been widely circulated among
foreign and domestic experts.
\57\ Protocol on the Accession of the People's Republic of China to
the WTO, I.2(C)2.
\58\ The Law has been through over twenty drafts. The drafting
group, which was at the State Economic and Trade Commission (SETC) and
moved to the Ministry of Commerce in 2003 when some of SETC's functions
were absorbed by the Ministry of Commerce, submitted a final draft to
the State Council's Legal Affairs Office for consideration. Two
sections of the American Bar Association provided comments to the
drafting group in 2003 while the draft was still at the Ministry of
Commerce. American Bar Association (Online), Joint Submission of the
American Bar Association's Sections of Antitrust Law and International
Law and Practice on the Proposed Anti-Monopoly Law of the People's
Republic of China, 15 July 03. Three Sections of the ABA provided
additional comments to a subsequent draft this year after the State
Council returned the draft to MOFCOM for further redrafting. American
Bar Association (Online), Joint Submission of the American Bar
Association's Sections of Antitrust Law, Intellectual Property Law and
International Law on the Proposed Anti-Monopoly Law of the People's
Republic of China, 19 May 05. While the comments are publicly
available, as indicated in these citations, the State Council provides
the drafts themselves on the condition that they not be shared outside
the group responsible for drafting the comments.
\59\ Office of the USTR, Results of Special 301 Out-of-Cycle Review
on China, 4.
\60\ The first publication of the Interpretation was on December
22, 2004, the day it became effective, even though the document itself
is dated December 8, 2004. If the Chinese authorities had sought
comments on the draft before promulgating the final Interpretation,
they could have answered certain complaints about the infringement
valuation methodology and the high threshold of infringement required
to transfer cases from administrative to criminal enforcement.
\61\ Office of the USTR, 2004 Report to Congress on China's WTO
Compliance, 81.
\62\ Ibid., 82.
\63\ State Council, CPC Central Committee Opinion on Advancing the
Improvement of Government Openness [Guanyu jinyibu tuixing zhengwu
gongkai de yijian], issued 24 March 05.
\64\ Ibid. sect. 2 (``It is required that all individual items
regarding administrative management and public service should be
accurately published, except for those related to state secrets and
commercial secrets or personally identifiable information received
lawfully, strictly in accordance with laws, regulations, and related
policy rules.'').
\65\ Protocol of Accession of the People's Republic of China to the
WTO, Part I.2(D) (``Such tribunals shall be impartial and independent
of the agency entrusted with administrative enforcement and shall not
have any substantial interest in the outcome of the matter.'').
\66\ Veron, Mei-Ying Hung, ``China's WTO Commitment on Independent
Judicial Review: Impact on Legal and Political Reform,'' 52 Am. J.
Comp. L. 77, 79-80.
\67\ Ibid., 81-2.
\68\ Ministry of Commerce Measures for the Administration of
Foreign Investment in the Commercial Sector [Waishang touzi shangye
qiye guanli banfa], issued 16 April 04.
\69\ American Chambers of Commerce, PRC and Shanghai, 2004 White
Paper, 164.
\70\ Ibid., 162.
\71\ Ibid., 166 (noting that trade and distribution rights face
many barriers protecting local and regional markets); World Bank, China
and the WTO: Accession, Policy Reform, and Poverty Reduction
Strategies, 7 September 04, 147-8 (This local protectionism is
``evident at the departmental and district levels . . .'' through ``. .
. policies and regulations [that] are often designed according to the
self-interest of the department or district involved. . . . Local
governments do not have identical rules and regulations, and they
always want to protect their local companies.'').
\72\ ``The U.S.-China Joint Commission on Commerce and Trade (JCCT)
Outcomes on Major U.S. Trade Concerns,'' U.S. Department of Commerce
and Office of the USTR.
\73\ Ibid.
\74\ Regulations on the Administration of Direct Selling [Zhixiao
guanli tiaoli], issued 23 August 05; Regulations Prohibiting Pyramid
Selling [Jinzhi chuanxiao tiaoli], issued 23 August 05. Neither of
these measures were published until September 3, 2005.
\75\ PRC Government Procurement Law, enacted 29 June 02, art. 10.
\76\ ``The U.S.-China Joint Commission on Commerce and Trade (JCCT)
Outcomes on Major U.S. Trade Concerns,'' U.S. Department of Commerce
and Office of the USTR.
\77\ Ibid.
\78\ Those measures define domestic software and then require
government agencies to purchase domestic software and software-related
services. Measures for the Implementation of Software Government
Procurement (Version Seeking Comments) [Ruanjian zhengfu caigou shishi
banfa (zhengqiu yijiangao)], issued 18 April 05, art. 2 (``These
measures refer to domestic software including domestic software
products and domestic software services. Domestic software products
take final form in the PRC, their copyright belongs to a PRC natural or
legal person or other organization, and domestic development cost are
not less than 50 percent of the total development cost of the software
product. Domestic software services are computer information systems
integration, information systems engineering inspection as well as
other related specialized technology services furnished by a PRC
natural or legal person or other organization, and of which the part of
the software services that are foreign-supplied services do not exceed
30 percent of the service program's cost.'').
\79\ ``Industry Says China Software Rule Threatens $100 Million in
Exports,'' Inside U.S.-China Trade (Online), 20 January 05; U.S.-China
Economic Relations, Hearing of the Committee on Finance, United States
Senate, 23 June 05, Opening Statement of Chairman Grassley, 2. Chinese
press reports on software procurement stress the importance of using
such rules to take markets away from foreign suppliers. ``Chinese
Domestic Software Breaks Microsoft Monopoly, Gets the Upper Hand in
Government Procurement'' [Guochan ruanjian dapo weiruan longduan,
zhengfu caigou shuliang zhan youshe], Xinhua (Online), 28 March 05.
\80\ PRC Auto Industry Development Policy [Qiche chanye fazhan
zhengce], issued 21 May 04.
\81\ Ibid., art. 13.
\82\ Ibid., art. 4.
\83\ Management Measures for Imports of Auto Parts Having the
Characteristics of a Complete Automobile [Guocheng zhengche tezhengde
qiche lingbujian jinkou guanli banfa], issued 28 February 05, art. 21.
\84\ The Auto Industry Development Policy seeks the development of
a strong export industry but also specifically proscribes misuse of
foreign intellectual property. PRC Auto Industry Development Policy,
arts. 4 and 20.
\85\ ``GM Charges Chery for Alleged Mini Car Piracy,'' China Daily
(Online), 18 December 04. The SPC transferred the case to the Beijing
No. 1 People's Court in 2005. ``GM Daewoo Files Suit Against Chery,''
China Daily (Online), 9 May 05.
\86\ Although Chery was converted into a privately-owned enterprise
after it ended its affiliation with the Shanghai Automotive Industry
Corporation Group in 2003, it nevertheless received tens of millions of
dollars for research and development from Ministry of Science and
Technology in 2004. Su Yang, ```Give Advice' to Chery'' [``Zhizhao''
Qirui], Business Financial Global (Online), 1 May 05.
\87\ ``GM Daewoo Files Suit Against Chery,'' China Daily (Online),
9 May 05.
\88\ ``GM Sues Chery's QQ for Unfair Competition: Plagiarizing the
Spark'' [Tongyong dayu qisu qirui QQ buzheng jingzheng: chaoxi
xuefolan], China Youth Daily (Online), 17 December 04.
\89\ Jim Mateja, ``Why is GM Chery-picking a fight with
Bricklin?,'' Chicago Tribune (Online), 18 May 05; ``PRC Car Maker Vows
To Go Ahead With Overseas Expansion Despite Piracy Allegations,'' China
Daily, 23 May 05 (FBIS 23 May 05) (noting that GM has not confirmed
that it will take this action).
\90\ Ministry of Commerce Auto Trade Policy [Shangwubu qiche maoyi
zhengce], issued 10 August 05.
\91\ Ibid., art. 45.
\92\ Ibid., art. 37.
\93\ ``MOFCOM Market Development Department Officials Decipher the
`Auto Trade Policy''' [Shangwubu shichang jianshesi fuzeren jiedu
``qiche maoyi zhengce''], Xinhua (Online), 23 August 05.
Notes to Section VI--Tibet
\1\ Steven Marshall and Susette Cooke, Tibet Outside the TAR:
Control, Exploitation and Assimilation: Development with Chinese
Characteristics (Washington D.C.: self-published CD-ROM, 1997), Table
7. The 13 autonomous areas include the provincial-level Tibet
Autonomous Region (TAR) as well as 10 Tibetan autonomous prefectures
and two Tibetan autonomous counties located in Qinghai, Gansu, Sichuan,
and Yunnan Provinces. The 13 areas are contiguous and total 2.24
million square kilometers (865,000 square miles).
\2\ Bureau of East Asian and Pacific Affairs, U.S. Department of
State, Report on Tibet Negotiations, April 2005. The Report is mandated
by Section 611 of the Foreign Relations Authorization Act, 2003, and
was sent to the Congress in April 2005.
\3\ Ibid.
\4\ Ibid. ``Encouraging substantive dialogue between Beijing and
the Dalai Lama is an important objective of this Administration. The
United States encourages China and the Dalai Lama to hold direct and
substantive discussions aimed at resolution of differences at an early
date, without preconditions. The Administration believes that dialogue
between China and the Dalai Lama or his representatives will alleviate
tensions in Tibetan areas and contribute to the overall stability of
China.''
\5\ Laurence Brahm, ``Conciliatory Dalai Lama Expounds on Winds of
Change,'' South China Morning Post (Online), 14 March 05.
\6\ U.S. State Department, Report on Tibet Negotiations.
\7\ In addition to serving as the Dalai Lama's Special Envoy, Lodi
Gyari is the Executive Chairman of the International Campaign for Tibet
(ICT). According to the ICT mission statement, ICT ``promotes self-
determination for the Tibetan people through negotiations between the
Chinese government and the Dalai Lama.'' The ICT Web site describes
Tibet as an ``occupied country'' of 2.5 million square kilometers
(965,000 square miles) with Lhasa as its capital.
\8\ ``Statement by Special Envoy Kasur Lodi Gyari, Head of the
Delegation to China,'' Tibetan Government-in-Exile (Online), 13 October
04. The envoys met Liu Yandong, Vice Chairperson of the Chinese
People's Political Consultative Committee and head of the United Front
Work Department of the Chinese Communist Party (UFWD); Zhu Weiqun, the
deputy head of the UFWD; Chang Rongjung, UFWD Secretary General; and
other officials in Beijing. The delegation visited Lhasa, Tashi Lhunpo
Monastery, and Samye Monastery in the TAR, and several counties in
Ganzi Tibetan Autonomous Prefecture (TAP), including Xinlong, Lodi
Gyari's birthplace.
\9\ Ibid.
\10\ ``Dalai Lama's Envoys Meet Chinese Officials in Switzerland
for Fourth Round of Talks,'' Tibetan Government-in-Exile (Online), 1
July 05. The envoys met with Zhu Weiqun and Sithar of the UFWD. (Zhu is
also a ``senior official'' of the State Council Information Office
according to ``Economy Grows in Minority Regions,'' China Daily
(Online), 31 May 05.)
\11\ ``Statement by Special Envoy of His Holiness the Dalai Lama
Kasur Lodi Gyari, Head of the Tibetan Delegation for the Fourth Round
of Meetings with the Chinese Leadership,'' Tibetan Government-in-Exile
(Online), 7 July 05.
\12\ The Tibetan government-in-exile's representation of Tibet
exceeds the total area of Chinese-designated Tibetan autonomy by about
100,000 square miles. Aside from pockets of long-term Tibetan
settlement in Qinghai province, most of that area is made up of
autonomous prefectures or counties allocated to other ethnic groups in
Qinghai, Gansu, Sichuan, and Yunnan provinces. The area includes
substantial Han Chinese populations, some established for centuries.
\13\ ``Spokesman: Differences on Tibet's Definition Persist Between
China, Dalai Lama,'' Associated Press (Online), 8 July 05.
\14\ Surojit Mahalanobis, ``Options in Exile,'' Times of India
(Online), 6 June 03. For example, during this interview in June 2003,
Samdhong Rinpoche said, ``In Hong Kong, the Chinese have agreed to a
one-country-two-systems policy. The Dalai Lama is negotiating such a
status for Tibet.'' He said that ``genuine autonomy'' means, ``A little
more than what Hong Kong enjoys.''
\15\ ``The Statement of the Kashag on the 46th Anniversary of the
Tibetan People's Uprising Day,'' Tibetan Government-in-Exile (Online),
10 March 05. ``After the return of the third visit of His Holiness's
envoys last year, and carefully studying the minutes of their
discussions, we have decided to put more efforts towards negotiations.
. . . [T]he entirety of the Tibetan population having legitimate rights
within the constitutional framework of the People's Republic of China
to enjoy genuine national regional autonomy is the legitimate
requirement of the Tibetan people. Therefore, the need of such an
autonomy, equally and uniformly practiced amidst all the Tibetan
people, has already been emphasized; not just once but many times. We
would like to once again state that this basic principle can not be
changed at all.''
\16\ ``We Have To Accept Ground Realities,'' Outlook India
(Online), 19 March 05.
\17\ ``Dalai Lama More and More Unpopular Among Tibetans, Says
Chairman,'' Xinhua, 31 May 05 (FBIS, 31 May 05). Chairman of the TAR
government Jampa Phuntsog (Xiangba Pingcuo) said, ``Dalai Lama had
before put forward a series of ideas puffing [as received] high degree
autonomy in Tibet or establishing a `big Tibetan area' that involves
four more Chinese provinces of Sichuan, Yunnan, Qinghai and Gansu.
However, according to the Chinese history, there was only one `big
Tibetan area' about one thousand years ago in southwest China but no
more reappeared thereafter. As far as today's Tibet is concerned, such
an area is absolutely nothing but impossible.''
\18\ Aloke Tikku, ``Dalai Envoys Plan China Talks,'' The Telegraph,
Calcutta (Online), 9 March 05. Samdhong Rinpoche referred to the ``non-
negotiable'' demand for autonomy for all Tibetans and said, ``The
Chinese thought we were seeking consolidation of Tibetan areas and
eventually independence. Whether the Tibetans then wanted to be
governed as one administrative entity or separately is something that
can be looked at later.''
\19\ ``Dalai Lama More and More Unpopular Among Tibetans, Says
Chairman,'' Xinhua. Chairman of the TAR government Jampa Phuntsog said,
``What Dalai and some Western forces really want is nothing but
splitting Tibet from China. Whatever the names he invents for Tibetan
independence, his nature will remain the same.''
\20\ ``PRC FM Spokesman: US Must Not Use Tibet To Interfere in
China's Internal Affairs,'' Xinhua, 24 April 05 (FBIS, 24 April 05).
\21\ ``Transcript: Presidents Clinton, Jiang Debate Rights,
Tiananmen,'' U.S. Department of State (Online), 27 June 98. During the
televised debate President Clinton said, ``I reaffirmed our
longstanding one-China policy to President Jiang and urged the pursuit
of cross-strait discussions recently resumed as the best path to a
peaceful resolution. In a similar vein, I urged President Jiang to
assume a dialogue with the Dalai Lama in return for the recognition
that Tibet is a part of China and in recognition of the unique cultural
and religious heritage of that region.'' President Jiang responded,
saying, ``Just now President Clinton also mentioned the Tibetan issue
and the dialogue with the Dalai Lama. Actually, as long as the Dalai
Lama can publicly make the statement and a commitment that Tibet is an
inalienable part of China and he must also recognize Taiwan as a
province of China, then the door to dialogue and negotiation is open.''
\22\ ``TSGs and the Struggle of the Tibetan People,'' Department of
Information and International Relations, Tibetan Government-in-Exile
(Online), May 2000; Speech by Secretary Kesang Y. Takla to the Third
International Conference of Tibet Support Groups, Berlin, 11-14 May 00.
``First of all I believe that it is the responsibility of His Holiness
to speak for the Tibetan people, for the status of Tibet, which he has
always consistently done, and it is entirely for the people of Taiwan
to speak their voice.''
\23\ PRC Law on Regional Ethnic Autonomy, adopted 31 May 84,
amended 28 February 01, preamble: ``The implementation of regional
autonomy of minority nationalities embodies the spirit of the state
fully respecting and protecting the right of every minority nationality
to manage their own internal affairs as well as the principle of the
state adhering to the principle of equality, unity, and common
prosperity for all nationalities.''
\24\ Ibid., art. 7: ``Organs of national autonomous areas should
place the overall interests of the state in the first place and
actively fulfill all tasks handed down by higher-level state organs.''
\25\ Theodore C. Sorenson and David L. Phillips, Legal Standards
and Autonomy Options for Minorities in China: The Tibetan Case
(Cambridge, Mass.: Harvard University, Belfer Center for Science and
International Affairs, 2004), 45.
\26\ China's Regional Ethnic Autonomy Law: Does it Protect Minority
Rights?, Staff Roundtable of the Congressional-Executive Commission on
China, 11 April 05, Written Statement submitted by David L. Phillips,
Senior Fellow, Council on Foreign Relations.
\27\ Theodore C. Sorenson and David L. Phillips, Legal Standards
and Autonomy Options for Minorities in China: The Tibetan Case, 78.
\28\ Ibid., 78.
\29\ Tashi Rabgey and Tseten Wangchuk Sharlho, Sino-Tibetan
Dialogue in the Post-Mao Era: Lessons and Prospects (Washington: East-
West Center, 2004), ix.
\30\ Ibid.
\31\ In May 2002, a Commission staff delegation visited the Central
Nationalities University and the Chinese Center for Tibetan Studies in
Beijing, the Southwest Minority Nationalities University and the
Sichuan University Center for Tibetan Studies (Chengdu, Sichuan
province), and the Tibet Academy of Social Sciences (Lhasa, TAR). In
September 2003, a Commission staff delegation met with staff of the
Qinghai Province Ethnic Minority Institute (Xining, Qinghai province),
and visited the Huangnan TAP Teacher Training College and the Tongren
Tibetan Language Middle School (Tongren, Qinghai province). In April
2004, a Commission staff delegation visited the Chinese Center for
Tibetan Studies in Beijing, the Northwest Nationalities University
(Lanzhou, Gansu province), and the Gannan TAP Teacher Training School
(Hezuo, Gansu province). Commission staff impressions were based on
meetings with administrators, faculty, and students, visits to campus
facilities, statistics on graduation, and private meetings with experts
that corroborated Commission impressions.
\32\ Tabulation on Nationalities of 2000 Population Census of
China, Department of Population, Social, Science and Technology
Statistics, National Bureau of Statistics, and Department of Economic
Development, State Ethnic Affairs Commission (Beijing: Ethnic
Publishing House, September 2003). Table 2-3, based on persons aged 15
and over, shows that the Dongxiang, Salar, Baoan, Monba, and Lhoba
nationalities have higher rates of illiteracy than Tibetans. Table 2-3
provides rates of illiteracy for Mongols and Uighurs of 8.40 and 9.22
percent, respectively.
\33\ Tabulation on Nationalities of 2000 Population Census of
China. Data provided in Table 2-3 show that 9.08 percent of China's
population aged 15 and over is illiterate; 47.55 percent of Tibetans
aged 15 and over are illiterate.Tabulation on the 2000 Population
Census of the People's Republic of China (Beijing: China Statistics
Press, August 2002). Data provided in Table 1-8 show that 89,629,436 of
1,156,700,293 persons aged six and over in China have had no schooling.
\34\ Tabulation on the 2000 Population Census of the People's
Republic of China. Table 1-9 provides provincial rates of illiteracy
based on the illiterate population aged 15 and over.
\35\ Ibid. Data provided in Table 2-2 show that the highest level
of education attained by 35.2 percent of Tibetans aged 6 and over is
primary school.Ibid. Data provided in Table 1-8 show that the highest
level of education attained by 38.2 percent of China's population aged
6 and over is primary school.
\36\ Ibid. Table 2-2 shows that of 1,061,196,336 Han aged six and
over, 93,677,240 (8.83 percent) reached senior middle school and
13,323,659 (1.26 percent) reached university. Of 4,791,241 Tibetans
aged six and over, 81,366 (1.70 percent) reached senior middle school
and 18,315 (0.38 percent) reached university.
\37\ Tabulation on Nationalities of 2000 Population Census of
China. Table 2-1a shows that 8,845 of 137,545 TAR Tibetans aged six and
over, and classified as ``city'' residents, reached senior middle
school as their highest level of educational attainment; Table 2-1b
shows that 5,400 of 211,990 TAR Tibetans aged six and over, and
classified as ``town'' residents, reached senior middle school; Table
2-1c shows that 5,999 of 1,808,859 TAR Tibetans aged six and over, and
classified as ``rural'' residents, reached senior middle school.
\38\ Ibid. Table 1-2 shows 2,427,168 Tibetans in the TAR. Table 1-
2c shows that 2,058,011 of them are classified as ``rural.''
\39\ Ibid. Table 1-2 shows the total Tibetan population as
5,416,021. Table 1-2a shows the ``city'' population of Tibetans as
221,355. Table 1-2b shows the ``town'' population of Tibetans as
473,467. Table 1-2c shows the ``rural'' population of Tibetans as
4,721,199.
\40\ ``Dalai Lama More and More Unpopular Among Tibetans, Says
Chairman,'' Xinhua.
\41\ Wei Wu, ``Tibet at Best Period of Development, Stability,''
Xinhua (Online), 2 June 05. Chairman of the TAR Jampa Phuntsog said
that TAR GDP grew by more than 10 percent for 10 consecutive years and
reached 12.2 percent in 2004 (21.154 billion yuan). Per capita GDP was
7,772 yuan, ranking 23rd among 31 provinces, autonomous regions, and
municipalities. The annual per-capita net income of Tibetan farmers and
herdsmen was 1,861 yuan. The disposable income of the urban Tibetans
was 8,200 yuan.
\42\ Wei Wu, ``Tibet at Best Period of Development, Stability.''
Chairman of the TAR Jampa Phuntsog said in an interview, ``The central
government has poured an annual average of more than 10 billion yuan
[U.S.$1.2 billion] into Tibet in the past years to start big projects
and update local infrastructure. Together with investment from other
channels including civil investment, there is more than 16 billion yuan
[U.S. $1.93 billion] of investment poured into Tibet annually.'' These
figures compare to a 21.154 billion yuan GDP in the TAR in 2004.
\43\ Tibet Information Network (Online), ``High TAR Wages Benefit
the Privileged,'' 10 February 05. ``Given the predominance of the state
sector in `staff and worker' employment in the TAR, it is worthwhile to
look at the specific state-sector wages more closely. Again, average
money wages of state-sector staff and workers in the TAR were the
highest in the PRC in 2002, but fell to third place in 2003, just
behind Beijing and Shanghai. Average state-sector wages in 2003 were
27,611 yuan in the TAR, compared to 28,406 for Shanghai, and 28,464
yuan for Beijing.''
\44\ ``Tibetans Lose Ground in Public Sector Employment in the
TAR,'' Tibet Information Network (Online), 20 January 05. ``These
reductions in employment have come at a time when the state-sector has
been one of the most important and most dynamic sources of growth in
the TAR. GDP growth rates have been the highest in Western China in
2002 and 2003, largely fuelled by expansions in state-subsidized
investment and administrative spending on the state-sector itself. A
stronger involvement in state-sector employment therefore bears a high
potential for increasing Tibetan employment. Instead, Tibetan
employment in the state-sector has been falling, along with state-
sector employment in general. Paradoxically, employment, especially
Tibetan employment, has been shrinking in precisely the parts of the
economy that have been growing fastest.''
\45\ Ibid.
\46\ ``Qinghai-Tibet Railway to Start Trial Operation in 15
Months,'' People's Daily (Online), 12 April 05. The 2001 estimated
budget for construction of the 1,142 kilometer section (710 miles) was
26.2 billion yuan. Expenditure for 2004 was 6.8 billion yuan, according
to Vice Minister of Railways Sun Yongfu, and the 2005 allocation is 5.5
billion yuan. With two-thirds of the work on ``key projects''
completed, the cost has been 19.8 billion yuan. (In an interview with
Commission staff, a Chinese official stated that the cost of the
railroad is estimated at 30 billion yuan.)
\47\ ``While Inspecting Qinghai, Wen Jiabao Points Out That It Is
Necessary To Give Play to the Pioneering Spirit of Hard Struggle in
Pushing Forward the Grand Strategy of Large-Scale Development of
China's Western Region,'' Xinhua, 2 May 05 (FBIS, 3 May 05).
\48\ ``Tibetans Appeal Compensation Over Loss of Homes, Land,''
Radio Free Asia (Online), 9 May 05. Tibetans petitioned authorities at
township, county, and regional level about the reduced compensation,
but received no help. A local Party official who ``tried to speak out
on behalf of his community'' was removed from his post. (In interviews
with Commission staff, private sources reported incidents similar to
the RFA account. In some cases, authorities warned dissatisfied
Tibetans to keep silent or face further losses.)
\49\ Li Dezhu, Minister of State Ethnic Affairs Commission,
``Large-Scale Development of Western China and China's Nationality
Problem,'' Seeking Truth, 1 June 00 (FBIS, 15 June 00). ``It is
conceivable that a phenomenon of `the peacock flying west' will appear
in keeping with the execution of large-scale western development. Two
way population flow is an inevitable trend of economic development,
will promote cultural exchange, and will help to raise the cultural
level of the western regions.''
\50\ Provisions of the State Council for Implementing the Law on
Regional Ethnic Autonomy of the People's Republic of China, issued 26
May 05, art. 29. ``The state shall encourage and support professionals
of all levels and types to work or start their businesses in national
autonomous areas. Local people's governments shall provide them with
preferential and convenient working and living conditions. Appropriate
consideration in terms of employment and schooling shall be given to
the families and children of the professionals of Han nationality and
other nationalities who go to work in national autonomous areas in
remote areas and frigid zones where conditions are relatively harsh.''
\51\ ``No Immigration of Other Ethnic Groups: Tibetan Official,''
Xinhua (Online), 26 September 03. Jampa Phuntsog, TAR Deputy Party
Secretary, said ``there has been no immigration of other ethnic groups
into Tibet.'' ``Ethnic Tibetans Remain Majority in Tibet: Tibetan
Chairman,'' People's Daily (Online), 5 September 02. Legchog, then TAR
Deputy Party Secretary, said that it was an ``absurdity'' to suggest
that Chinese population could overtake Tibetans. Yixi Jiacuo, ``Raidi
Meets Hong Kong Journalists, Gives Interview,'' Tibet Daily, 7 August
01 (FBIS, 7 August 01). Ragdi (Raidi), then TAR Executive Deputy Party
Secretary, said ``[S]ome people say that with immigration, the Tibetan
population is greatly reduced and Tibetan culture will be extinguished.
There is absolutely no basis for such talk.''
\52\ One of the most common concerns expressed by Tibetans speaking
privately is that the Han population has increased steadily and
significantly since the 1980s, especially in towns and cities.
Commission staff have heard similar comments from foreign experts who
have visited Tibetan areas over a period of years.
\53\ Tabulation on China's Nationality: Data of 1990 Population
Census (Beijing: China Statistical Press, 1993); Tabulation on
Nationalities of 2000 Population Census of China. According to census
data, Han population decreased in 10 areas of Tibetan autonomy (listed
in order of size of decrease): Guoluo prefecture (Qinghai), -25.0
percent; Hainan prefecture (Qinghai), -22.7 percent; Haibei prefecture
(Qinghai), -20.2 percent; Huangnan prefecture (Qinghai), -19.2 percent;
Yushu prefecture (Qinghai), -16.9 percent; Muli county (Sichuan), -16.1
percent; Aba prefecture (Sichuan), -14.3 percent; Haixi prefecture
(Qinghai), -9.0 percent; Ganzi prefecture (Sichuan), -7.9 percent;
Tianzhu county (Gansu), -0.9 percent.
\54\ Compare Tabulation on China's Nationality: Data of 1990
Population Census with Tabulation on Nationalities of 2000 Population
Census of China. Han population increased in three areas of Tibetan
autonomy (listed in order of size of increase): TAR, +96.2 percent;
Diqing prefecture (Yunnan), +13.9 percent; Gannan prefecture (Gansu),
+2.0 percent.
\55\ Tabulation on Nationalities of 2000 Population Census of
China. The total Han population in the 13 Tibetan autonomous areas fell
from 1.52 million in 1990 to 1.47 million in 2000.
\56\ ``Measures for Fifth National Population Census,'' National
Bureau of Statistics of China (Online), 23 April 02. Chapter 2, Article
7, provides the following instructions:
The following persons should be enumerated in their own townships,
towns and street communities:
(1) those who reside in the townships, towns and street communities
and have had their permanent household registered there.
(2) those who have resided in the townships, towns and street
communities for more than half a year but the places of their permanent
household registration are elsewhere.
(3) those who have resided in the townships, towns and street
communities for less than half a year but have been away from the place
of their permanent household registration for more than half a year.
(4) those who live in the townships, towns and street communities
during the population census but the places of their household
registration have not yet settled.
\57\ Census day was July 1 in 1990, and November 1 in 2000. The
population of transient Han workers and vendors in Tibetan areas peaks
during summer and is declining by November, undermining the reliability
of direct comparison of 1990 and 2000 data. The shift of census day
from July to November, however, may not be an adequate explanation for
significant declines in Han population.
\58\ Tibet Information Network, TIN Testimonies--Writing in Today's
Tibet, 19 April 05. (TIN interview with a young Tibetan writer from
Qinghai province.) ``[I]n my own case, restrictions on what one can
write about actually enthuses me to write even more. I was able to
write political things. I was able to conceal political matter in my
writing. They were not written openly. Generally I write the things
that I know and that I feel. The things one is not allowed to write
about, one has to write in a hidden way. For example, `cuckoo' and
`elder brother' is written to represent the Dalai Lama and this could
be explained or interpreted as having a different meaning if one is
asked.'' TIN summarized: ``While open criticism of the system,
expressions of faith in the Dalai Lama and aspirations to greater
freedom are off limits, demanding extensive self-censorship,
descriptions of the Tibetan landscape, the celebration of Tibetan
cultural icons, and even the use of the Tibetan language itself, are
perceived as expressions of allegiance to one's `nationality'.''
\59\ Human Rights in China (Online), ``Tibetan Writer Persecuted
for Praising Dalai Lama,'' 27 October 04.
\60\ Ibid. HRIC sources reported that Tibet Journal was banned by
the UFWD and the Guangdong Provincial Publishing Bureau.
\61\ Ibid.
\62\ ``Five Tibetan Monks Jailed in Western China,'' Radio Free
Asia (Online), 13 February 05. The monks are Abbot Tashi Gyaltsen,
Tsultrim Phelgyal, Tsesum Samten, Jamphel Gyatso, and Lobsang Dargyal,
of Dragkar Traldzong Monastery in Xinghai county. They are reportedly
serving their sentences at a brick factory near Xining.
\63\ ``The Execution of Lobsang Dondrub and the Case Against Tenzin
Deleg: The Law, the Courts, and the Debate on Legality,'' Topic Paper
of the Congressional-Executive Commission on China, February 2003.
\64\ Official sentencing document: Lhasa Municipal Intermediate
People's Court, Criminal Court Judgment, No. 52 (2000). ``Defendant
Jinmei Danzeng Nima is guilty of the crime of attempting to split the
country. He is sentenced to life in prison and shall be deprived of
political rights for his lifetime (prison term starting on the day this
judgment goes into effect).'' (Jigme Tenzin Nyima's Buddhist name is
Bangri Tsamtrul Rinpoche.)
\65\ Ibid. Jigme Tenzin Nyima said in his own defense, ``Without
any evidence, I will absolutely deny having committed any crime
adjudicated.'' His defense counsel told the court, ``Therefore, the
facts do not clearly show that defendant Jigme Tenzin Nyima committed
the crime of trying to split up the country as changed and the evidence
is not sufficient.''
\66\ ``New Details on Cases of Tibetan Political Imprisonment,''
Tibet Information Network (Online), 9 July 04. According to information
based on official Chinese sources, Nyima Choedron received a sentence
reduction of one year six months in 2002, and one year in 2003.
\67\ United Nations Commission on Human Rights, Working Group on
Arbitrary Detention, Opinions adopted by the Working Group on Arbitrary
Detention, Opinion No. 13/2003, 26 November 03, 71.
\68\ Ibid., 74.
``The Working Group emphasized, in the report on its visit to China
(E/CN.4/1998/44/Add.2, para. 43) that `unless the application of these
crimes is restricted to clearly defined areas and in clearly defined
circumstances, there is a serious risk of misuse'. That appears to be
the case in the present instance, inasmuch as the Government, in its
reply, does not specify the nature of the activities of which the men
were accused other than founding a peaceful association and
distributing leaflets and mentions no evidence in support of the
charges, or if they used violence in their activities.''
\69\ United Nations Commission on Human Rights, Working Group on
Arbitrary Detention, Decisions adopted by the Working Group on
Arbitrary Detention, Decision No. 65/1993, 5 October 94.
\70\ United Nations Commission on Human Rights, Working Group on
Arbitrary Detention, Report of the Working Group on Arbitrary
Detention: Addendum, Mission to China, 29 December 04, 22.
\71\ United Nations Commission on Human Rights, Working Group on
Arbitrary Detention, Opinions Adopted by the Working Group on Arbitrary
Detention, Opinion No. 8/2000, 9 November 00, 70.
\72\ Steven D. Marshall, In the Interests of the State: Hostile
Elements III--Political Imprisonment in Tibet 1987-2001 (London: Tibet
Information Network, 2002), 3. There were nearly 700 known or likely
Tibetan political prisoners by the end of 1995.
\73\ Based on data available in the CECC Political Prisoner
Database for 121 records in June 2005, 85 Tibetan political prisoners
were known or believed to be serving prison terms, nine were serving
sentences of re-education through labor, and 27 were awaiting
sentencing or release, or were of uncertain status.
\74\ The CECC issued its first Annual Report in 2002.
\75\ Based on CECC Political Prisoner Database residence data
current in June 2005 for Tibetan political prisoners, and official
Chinese data on Tibetan population from the 2000 census:
(1) Lhasa prefecture had a rate of 80 Tibetan political prisoners
per million Tibetans (31 political prisoners resided in Lhasa
prefecture before detention; Lhasa prefecture had a Tibetan population
of 387,124 in 2000);
(2) Ganzi prefecture, in Sichuan province, had a rate of 37 Tibetan
political prisoners per million Tibetans (26 political prisoners
resided in Ganzi prefecture before detention; Ganzi prefecture had a
Tibetan population of 703,168 Tibetans in 2000);
(3) Changdu prefecture, in the eastern TAR, had a rate of 28.4
Tibetan political prisoners per million Tibetans (16 political
prisoners resided in Changdu prefecture before detention; Changdu
prefecture had a Tibetan population of 563,831 Tibetans in 2000);
(4) Aba prefecture, in Sichuan Province, had a rate of 26.4 Tibetan
political prisoners per million Tibetans (12 political prisoners
resided in Aba prefecture before detention; Aba prefecture had a
Tibetan population of 455,238 Tibetans in 2000).
Notes to Section VII--North Korean Refugees in China
\1\ James Seymour, ``China: Background Paper on the Situation of
North Koreans in China,'' commissioned by United Nations High
Commissioner for Refugees, Protection Information Section, January
2005, 17; Edward Cody, ``N. Koreans Fleeing Hard Lives Discover New
Misery in China,'' Washington Post (Online), 7 March 05.
\2\ Shin Joo Hyun, ``Underground Burrow, a Refuge of North Korean
Defectors--7 Years of Living Like Moles,'' The Daily NK, 3 June 05
(FBIS, 3 June 05); ``North Koreans Spent Years in Chinese Mountain
Dugouts,'' Radio Free Asia (Online), 14 July 05.
\3\ Incite Productions, ``Seoul Train,'' documentary produced by
Jim Butterworth and Lisa Sleeth, November 2004; The Plight of North
Korean Migrants in China: A Current Assessment, Staff Roundtable of the
Congressional-Executive Commission on China, 18 April 04, Testimony of
Joel Charny, Vice President for Policy, Refugees International.
\4\ James Seymour, ``China: Background Paper on the Situation of
North Koreans in China,'' 18.
\5\ ``Hunger Strike Spreading Among Detained North Korean Refugees:
Reports Indicate New Spirit of Protest,'' Life Funds for North Korean
Refugees Web site, 25 March 04.
\6\ Article III(5) United Nations (United Nations High Commissioner
for Refugees) and China, Agreement on the Upgrading of the UNHCR
Mission in the People's Republic of China to UNHCR Office in the
People's Republic of China, UNTS Vol. 1898/1899, I-3237, 11 December
95, 61-71.
\7\ Bureau of Population, Refugees, and Migration, U.S. Department
of State, ``The Status of North Korean Asylum Seekers and the U.S.
Government Policy Towards Them,'' 11 March 05.
\8\ Reiterated by a Foreign Ministry spokesman in June: ``Illegal
DPRK immigrants not refugees: Chinese FM Spokesman,'' Xinhua (Online),
29 June 05.
\9\ Democratic People's Republic of Korea Ministry of State
Security and the People's Republic of China Ministry of Public
Security, Mutual Cooperation Protocol for the Work of Maintaining
National Security and Social Order in the Border Areas, 1961.
\10\ James Seymour, ``China: Background Paper on the Situation of
North Koreans in China,'' 10; Joel R. Charny, ``Acts of Betrayal: The
Challenge of Protecting North Koreans in China,'' Refugees
International, April 2005.
\11\ ``Interview with High Commissioner Ruud Lubbers,'' Asahi
Shimbun, 4 August 03.
\12\ James Seymour, ``China: Background Paper on the Situation of
North Koreans in China,'' 10.
\13\ Figure cited in Joel R. Charny, ``Acts of Betrayal: The
Challenge of Protecting North Koreans in China,'' 5. International
Refugees notes these figures are ``problematic'' given the lack of
publicly available data and the fact that many North Koreans in China
move back and forth across the border seeking temporary employment
rather than political asylum.
\14\ Bureau of Democracy, Human Rights, and Labor, U.S. Department
of State, Country Report on Human Rights Practices--2004, China,
including Tibet, Hong Kong, and Macau, 28 February 05.
\15\ ``Beijing Turns Blind Eye to N. Korean Kidnappings,'' Chosun
(Online), 19 January 05.
\16\ U.S. Department of State, ``The Status of North Korean Asylum
Seekers and the U.S. Government Policy Towards Them.'' North Korea has
recently begun to distinguish between returned migrants who sought
political refugee status in China and those who simply crossed the
border in search of food or jobs. Treatment of the latter has
reportedly improved in recent years, though anyone illegally crossing
the border is still subject to two years of ``labor correction.''
\17\ Joel Charny, remarks at Refugees International and the Center
for Strategic and International Studies Briefing, 12 May 05.
\18\ Convention Relating to the Status of Refugees, 28 July 51 by
the United Nations Conference of Plenipotentiaries on the Status of
Refugees and Stateless Persons convened under General Assembly
resolution 429 (V) of 14 December 50, art. 33.
\19\ K. Platt, ``N Korea Gets China's Cooperation on Refugee
Returns,'' Christian Science Monitor (Online), 9 June 00.
\20\ Joel R. Charny, ``Acts of Betrayal: The Challenge of
Protecting North Koreans in China.''
\21\ Joel Charny, remarks at Refugees International and the Center
for Strategic and International Studies Briefing.
\22\ ``8 Suspected N. Korean Asylum Seekers Enter Japanese School
in Beijing,'' Voice of America (Online), 9 March 05. These incidents
occur on a regular basis. On October 15, 2004, 20 North Koreans entered
the South Korean consulate, just days after 44 people disguised as
Chinese construction workers climbed homemade ladders and vaulted into
the Canadian Embassy in Beijing. North Koreans rushed into a South
Korean International School in Beijing on October 22 and again on
December 15, leading Chinese authorities to temporarily close the
school on December 17. James Seymour, ``China: Background Paper on the
Situation of North Koreans in China,'' 22; ``ROK Daily: School
Interruption at Korean School in Beijing, China,'' Tong-a Ilbo, 17
December 04 (FBIS, 17 December 04).
\23\ ``8 Suspected N. Korean Asylum Seekers Enter Japanese School
in Beijing,'' Voice of America (Online).
\24\ James Seymour, ``China: Background Paper on the Situation of
North Koreans in China,'' 14. Appendix F, ``Parliamentary Delegation to
North Korea (DPRK)'' Co-funded by Jubilee Campaign and CSW, 13-18
September 2003.
\25\ The United Nations Working Group on Arbitrary Detention ruled
Choi's deprivation of liberty as arbitrary. UNWGAD, Opinion No. 20/2005
(People's Republic of China), 11 June 2004.
\26\ ``Minister Held in Chinese Prison,'' North Korean Refugees Web
site.
Notes to Section VIII--Developments in Hong Kong During 2005
\1\ United States-Hong Kong Policy Act of 1992, Public Law No. 102-
383, as enacted 4 April 90. The Basic Law of the Hong Kong Special
Administrative Region of the People's Republic of China, enacted 4
April 90; Joint Declaration of the Government of the United Kingdom of
Great Britain and Northern Ireland and the Government of the People's
Republic of China on the Question of Hong Kong, adopted 19 December 84.
\2\ The Basic Law of the Hong Kong Special Administrative Region of
the PRC, arts. 45 and 68.
\3\ The chief executive (CE) is the head of the Hong Kong Special
Administrative Region (HKSAR) and is accountable to both the Central
People's Government of the PRC and the HKSAR. Basic Law of the Hong
Kong Special Administrative Region of the People's Republic of China,
enacted 4 April 90, art. 43.
\4\ Article 46 of the Basic Law states that the term of office of
the CE shall be five years.
\5\ In 1999, the NCPSC issued an interpretation overturning a
decision by the Hong Kong courts that would have allowed mainlanders
with a Hong Kong parent to claim residency. In April 2004, the NCPSC
interpreted the Basic Law to strike down a proposal allowing universal
suffrage in the elections for the CE in 2007 and Legislative Council in
2008, despite widespread public approval in Hong Kong. See CECC, 2004
Annual Report, 104-6.
\6\ Tung stepped down from office amidst growing public discontent
with his governance. In December, Hu Jintao urged Tung in a videotaped
meeting to ``summarize [his] experience and identify inadequacies,''
which was widely interpreted as a public expression of Beijing's
dissatisfaction with Tung's performance. In February, Tung was
appointed a vice chairman of the Chinese People's Political
Consultative Conference, setting the stage for his formal resignation
as CE on March 10. For a detailed account of Tung's resignation
process, see Frank Ching, ``From Tung to Tsang: Hong Kong's Leadership
Shuffle,'' Jamestown Foundation China Brief, 21 June 05, 4.
\7\ A majority of the Hong Kong legal community, including the Hong
Kong Bar Association and Legal Society, supports the viewpoint that the
Basic Law only permits a five-year CE term length. Bureau of East Asian
and Pacific Affairs, U.S. Department of State, U.S.-Hong Kong Policy
Act Report (Online), 1 April 05. According to Hong Kong political
analysts, Beijing favored a two-year term because it still did not
fully trust Donald Tsang, the front-runner in the July CE election who
served as a civil servant under British rule, and therefore wanted a
shorter term length as a probationary period. Helen Luk, ``Next Hong
Kong Leader to Serve Five Years,'' Associated Press, 27 April 05.
\8\ On April 4, Carl Ching, president of the Grassroots Democratic
Society, applied for the Hong Kong High Court to review the legality of
a two-year CE term under the Basic Law. Albert Wong, ``Grassroots
Leader Files Judicial Challenge to Chief Executive Tenure,'' The
Standard, 5 April 05 (FBIS, 5 April 05). In a joint letter to the Hong
Kong government, a coalition of pro-democracy legislators called on the
government to refrain from seeking an interpretation from the NPCSC.
They pointed out that the Basic Law contains no provision that allows
the government to make such a request. Dennis Eng, et al., ``Hong Kong
`Activist' Seeks Judicial Review of Chief Executive Tenure,'' South
China Morning Post, 5 April 05 (FBIS, 5 April 05). Despite the
objections of the pro-democracy camp, Donald Tsang, the acting CE at
the time, submitted a report on April 6 to the State Council, proposing
that the State Council request that the NPCSC issue an interpretation
to resolve the issue. Chris Hogg, ``China to Settle New Hong Kong Chief
Executive Row,'' BBC News (Online), 6 April 05.
\9\ A draft interpretation was examined at the 15th session of the
10th NPCSC (April 24-27). ``NPC Standing Committee Starts to Examine
Draft Interpretation of HKSAR Basic Law,'' Xinhua, 25 April 05 (FBIS,
25 April 05). On April 27, the NPCSC formally endorsed the draft
interpretation. ``Hong Kong Chief Secretary Welcomes Basic Law
Interpretation,'' RTHK Radio 3, 17 April 05 (FBIS, 27 April 05). For
the full text of the interpretation, see ``Comparisons-Explanations on
NPC Draft Interpretation of Hong Kong Basic Law,'' Xinhua, 27 April 05
(FBIS, 27 April 05). For a detailed analysis of the legal and political
dimensions of the interpretation, see National Democratic Institute for
International Affairs, ``The Promise of Democratization in Hong Kong:
The 2005 Chief Executive Election,'' NDI Hong Kong Report #10, 21 June
05.
\10\ Central authorities repeated the consultative exercises it
adopted during its 2003 interpretation regarding universal suffrage.
These consultative exercises included meetings with Hong Kong's legal
sector and local deputies to the NPC, Chinese People's Political
Consultative Conference and Election Committee. ``Beijing Ruling Likely
to Trigger `Massive Street Protests' in Hong Kong,'' The Standard, 8
April 05 (FBIS, 8 April 05).
\11\ ``Beijing Invites Pro-Democracy Legislators to Air Views on
Basic Law,'' South China Morning Post, 15 April 05 (FBIS, 15 April 05).
\12\ Cannix Yau, ``Martin Lee, `Longhair' Not Included in Invite to
Discuss Basic Law,'' The Standard (Online), 15 April 05 (FBIS, 15 April
05).
\13\ A Hong Kong trial court convicted the demonstrators of
obstructing a public place, willful obstruction of police, and (in the
case of one demonstrator) assault. In 2003, a lower appeals court
overturned the public obstruction convictions but upheld the willful
obstruction and assault convictions. The CFA case upheld the appeals
court's overturning of the public obstruction conviction and overturned
the remaining convictions.
\14\ In the Court of Final Appeal of the Hong Kong Special
Administrative Region, Final Appeal No. 19 of 2004 (Criminal) (On
Appeal from HCMA No. 949 of 2002) FACC No. 19 of 2004.
\15\ Benjamin Wong, ``Police Welcome Falun Gong Ruling,'' South
China Morning Post (Online), 7 May 05.
\16\ ``A Balance Between Protesters' Rights and Public Interest
Needed,'' China Daily (Online), 7 May 05.
\17\ Ibid.
<all>