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30–571 PDF 2006

HUMAN RIGHTS AND THE RULE OF LAW IN

CHINA

HEARING

BEFORE THE

CONGRESSIONAL-EXECUTIVE

COMMISSION ON CHINA

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

SEPTEMBER 20, 2006

Printed for the use of the Congressional-Executive Commission on China

(

Available via the World Wide Web: http://www.cecc.gov

CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA

LEGISLATIVE BRANCH COMMISSIONERS

Senate House

CHUCK HAGEL, Nebraska, Chairman

SAM BROWNBACK, Kansas

GORDON H. SMITH, Oregon

JIM DEMINT, South Carolina

MEL MARTINEZ, Florida

MAX BAUCUS, Montana

CARL LEVIN, Michigan

DIANNE FEINSTEIN, California

BYRON DORGAN, North Dakota

JAMES A. LEACH, Iowa, Co-Chairman

DAVID DREIER, California

FRANK R. WOLF, Virginia

JOSEPH R. PITTS, Pennsylvania

ROBERT B. ADERHOLT, Alabama

SANDER LEVIN, Michigan

MARCY KAPTUR, Ohio

SHERROD BROWN, Ohio

MICHAEL M. HONDA, California

EXECUTIVE BRANCH COMMISSIONERS

STEVEN J. LAW, Department of Labor

PAULA DOBRIANSKY, Department of State

FRANKLIN L. LAVIN, Department of Commerce

CHRISTOPHER R. HILL, Department of State

BARRY F. LOWENKRON, Department of State

DAVID DORMAN, Staff Director (Chairman)

JOHN FOARDE, Staff Director (Co-Chairman)

(II)

(III)

C O N T E N T S

Page

STATEMENTS

Opening statement of Hon. Chuck Hagel, a U.S. Senator from Nebraska,

Chairman, Congressional-Executive Commission on China ............................. 1

Leach, Hon. James A., a U.S. Representative from Iowa, Co-Chairman, Congressional-Executive Commission on China ...................................................... 3

Cohen, Jerome A., professor of law, New York University School of Law,

New York, NY ...................................................................................................... 4

Kamm, John, Executive Director, the Dui Hua Foundation, San Francisco,

CA .......................................................................................................................... 8

Brownback, Hon. Sam, a U.S. Senator from the State of Kansas, Member,

Congressional-Executive Commission on China ................................................ 10

Pei, Minxin, Director, China Program, Carnegie Endowment for International

Peace, Washington, DC ....................................................................................... 12

Xiao, Qiang, Director, China Internet Project, the Graduate School of Journalism, University of California at Berkeley, Berkeley, CA ............................. 13

APPENDIX

PREPARED STATEMENTS

Cohen, Jerome A ...................................................................................................... 32

Kamm, John ............................................................................................................. 38

Pei, Minxin ............................................................................................................... 43

Xiao, Qiang ............................................................................................................... 44

Hagel, Hon. Chuck ................................................................................................... 46

Leach, Hon. James A ............................................................................................... 47

Brownback, Hon. Sam ............................................................................................. 49

Law, Hon. Steven J ................................................................................................. 50

Lavin, Hon. Franklin L ........................................................................................... 51

(1)

HUMAN RIGHTS AND RULE OF LAW IN CHINA

WEDNESDAY, SEPTEMBER 20, 2006

CONGRESSIONAL-EXECUTIVE

COMMISSION ON CHINA, Washington, DC.

The hearing was convened, pursuant to notice, at 10:09 a.m., in

room 138, Dirksen Senate Office Building, Hon. Chuck Hagel

(Chairman of the Commission) presiding.

Present: Senators Brownback and Martinez; Representatives

Leach (Co-Chairman of the Commission), Pitts, Aderholt, Levin

(Ranking Member of the Commission), and Honda; Steven J. Law,

Deputy Secretary of Labor, and Franklin L. Lavin, Under Secretary

of Commerce.

OPENING STATEMENT OF HON. CHUCK HAGEL, A U.S. SENATOR FROM THE STATE OF NEBRASKA, CHAIRMAN, CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA

Chairman HAGEL. Good morning. The Congressional-Executive

Commission on China issues a report each year to the Congress

and to the President on human rights conditions and the development of the rule of law in China.

In connection with today’s release of the 2006 Annual Report, the

Commission has asked a distinguished group of witnesses to assess

the current state of civil rights and criminal defense; freedom of expression; and efforts to adopt democratic institutions of governance,

implement legislative reform, and improve the environment for domestic and international civil society groups in China. The Commission will also hear the perspective of the witnesses on how the

United States might best engage with the Chinese Government

through dialogue on human rights and rule of law issues.

In its 2006 Annual Report, the Commission expresses deep concern that some Chinese Government policies designed to address

growing social unrest and bolster Communist Party authority are

resulting in a period of declining human rights for China’s citizens.

The Commission identified limited improvements in the Chinese

Government’s human rights practices in 2004, but backward-stepping

government decisions in 2005 and 2006 are leading the Commission to reevaluate the Chinese leadership’s commitment to additional human rights improvements in the near term. In its 2005

Annual Report, the Commission highlighted increased government

restrictions on Chinese citizens who worship in state-controlled

venues or write for state-controlled publications. These restrictions

remain in place, and in some cases, the government has strengthened their enforcement.

2

The Commission notes the progress that the Chinese Government has made over the past 25 years in beginning to build a political system based on the rule of law and on respect for basic

human rights. The twin demands of social stability and continued

economic progress have spurred legal reforms that may one day be

the leading edge of constraints on the arbitrary exercise of state

power. The government’s achievements in the economic realm are

impressive, none more so than its success in lifting more than 400

million Chinese citizens out of extreme poverty since the early

1980s.

While all of these changes are important, the gap between forward-looking economic freedoms and a backward-looking political

system remains significant. There are leaders now within China

who comprehend the need for change and who understand that inflexibility, secretiveness, and a lack of democratic oversight pose

the greatest challenges to continued development.

These leaders will need to gather considerable reformist courage

to overcome obstacles and push for continued change. Such changes

will not occur overnight, but rather in ways that Chinese society,

culture, infrastructure, and institutions must be prepared for and

willing to accept.

To help us better understand human rights conditions and the

development of the rule of law in China, we turn to our witnesses

this morning.

Professor Jerome A. Cohen is a Professor of Law at the New

York University School of Law; an Adjunct Senior Fellow on Asia

at the Council of Foreign Relations; and Of Counsel at the law firm

of Paul, Weiss, Rifkind, Wharton & Garrison. Professor Cohen is a

leading expert on the Chinese legal system and the legal aspects

of the international relations of East Asia. As Director of East Asia

Legal Studies at Harvard Law School from 1964 to 1979, Professor

Cohen pioneered the study of East Asian legal systems in American

legal curricula. He has published numerous books and articles on

Chinese law, including ‘‘Contract Laws of the People’s Republic of

China,’’ ‘‘The Criminal Process in the PRC: 1949 to 1968,’’ and ‘‘The

Plight of China’s Criminal Defense Lawyers.’’

After Professor Cohen, we will hear from Mr. John Kamm. Mr.

Kamm is Executive Director of The Dui Hua Foundation; a member of the Board of Directors for the National Committee on U.S.-

China Relations; and Director of Stanford University’s Project on

Human Rights Diplomacy. Since 1990, Mr. Kamm has been an advocate on behalf of prisoners of conscience in China and has made

more than 70 trips to Beijing in an effort to engage the Chinese

Government in a dialogue on human rights. He was granted the

Eleanor Roosevelt Human Rights Award by President George W.

Bush in December 2001, and a MacArthur Fellowship in September 2004. Mr. Kamm was the Hong Kong representative of the

National Council for U.S.-China Trade from 1976 to 1981, and was

President of the American Chamber of Commerce in Hong Kong in

1990.

Dr. Minxin Pei will provide perspectives on democratic governance and development of civil society. Dr. Pei is Senior Associate

and Director of the China Program at the Carnegie Endowment for

International Peace. He is an expert on China, U.S.-China relaVerDate 11-MAY-2000 10:20 Nov 06, 2006 Jkt 000000 PO 00000 Frm 00006 Fmt 6633 Sfmt 6633 U:\DOCS\30571.TXT CHINA1 PsN: CHINA1
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tions, Taiwan, East Asia, and the development of democratic political systems. Dr. Pei is the author of numerous books and articles

on China, including ‘‘China’s Governance Crisis;’’ ‘‘Rebalancing

United States-China Relations;’’ and ‘‘Future Shock: The WTO and

Political Change in China.’’ In his most recent book, ‘‘China’s

Trapped Transition: The Limits of Developmental Autocracy,’’ Dr.

Pei examines the sustainability of the Chinese Communist Party’s

reform strategy—pursuing pro-market policies under one-party

rule.

Mr. Xiao Qiang will share his expertise on freedom of expression

in China. Mr. Xiao is Director of the China Internet Project at the

University of California at Berkeley. He is a recipient of the MacArthur Fellowship and is currently teaching classes on ‘‘new media

and human rights in China’’ at the University of California at

Berkeley. Mr. Xiao was the Executive Director of Human Rights in

China from 1991 to 2002. He spoke at each meeting of the U.N.

Commission on Human Rights from 1993 to 2001, and has lectured

on the promotion of human rights and democracy in China in over

40 countries. Mr. Xiao currently runs the China Digital Times

Internet news portal, and is a weekly commentator for Radio Free

Asia.

We welcome our distinguished panel of witnesses this morning.

At this point I would ask my distinguished colleague, the CoChairman of this Commission, Representative Jim Leach, for his

comments. Then I would ask for comments from other colleagues

on the Commission before we hear from the witnesses.

Representative Leach.

[The prepared statement of Senator Hagel appears in the Appendix.]

OPENING STATEMENT OF HON. JIM LEACH, A U.S. REPRESENTATIVE FROM THE STATE OF IOWA, CO-CHAIRMAN,

CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA

Representative LEACH. Well, thank you, Chairman Hagel. I have

a long statement. I would simply ask unanimous consent to put it

in the record, and make two very quick observations.

Perspective is awfully difficult to bring to events of this nature

and assessments of the nature that the Commission is obligated to

make. From any historical viewpoint, China is obviously economically better off than it has ever been. From a freedom point of view,

it is probably as well off as it has ever been.

On the other hand, quite clearly there have been some steps back

in the last several years that are of serious dimensions and they

have to be noted, and we are obligated to note that.

In this regard, I personally want to tip my hat to the staff that

has been so responsible for putting together this report. We have

a first-class professional staff, non-ideological, Chinese languagetrained, and we are very proud of the work product that they have

produced and the efforts that they have undertaken.

With that, I would yield back the balance of my time.

[The prepared statement of Representative Leach appears in the

Appendix.]

Chairman HAGEL. Co-Chairman Leach, thank you.

4

One of our distinguished members of the Commission is the

Under Secretary of Commerce and the former U.S. Ambassador to

Singapore.

Mr. Lavin, do you have any comments?

Mr. LAVIN. No opening statements, Mr. Chairman, but to associate myself with your opening statement and with that of Congressman Leach as well.

[The prepared statement of Mr. Lavin appears in the Appendix.]

Chairman HAGEL. Mr. Lavin, thank you.

Also, another distinguished member of our Commission, Representative Joseph Pitts of Pennsylvania, has joined us. Mr. Pitts

has been actively engaged in this Commission.

Congressman Pitts, do you have a statement?

Representative PITTS. Mr. Chairman, I would just like to say this

is an excellent report and I would like to commend the staff for the

good work they have done here. I want to thank the witnesses for

their expertise and for coming today. I yield back.

Chairman HAGEL. Representative Pitts, thank you.

The recognition of the efforts of the staff of this Commission is

appropriate. The staff has been under the leadership of Dr. David

Dorman and Mr. John Foarde, who deserve a considerable amount

of attention and appreciation, as well as all of the members of the

Commission staff. I think our Commission is unanimous in its

praise of the good work of our staff on the report that was released

today.

We have just been joined by another distinguished member of

our Commission, Mr. Aderholt. Would you care to make a statement? Welcome.

Representative ADERHOLT. Thank you. It is good to be here this

morning. I do not have anything right now. I may submit something for the record. But I look forward to the testimony this morning. Thank you.

Chairman HAGEL. Representative Aderholt, thank you.

With that, let me now ask our distinguished witnesses if they

would proceed. I would ask them to proceed in the order in which

I introduced each of you. We will begin with you, Professor Cohen.

Welcome. Thank you.

STATEMENT OF JEROME A. COHEN, PROFESSOR OF LAW, NEW

YORK UNIVERSITY SCHOOL OF LAW, NEW YORK, NY

Mr. COHEN. Thank you, Senator Hagel. I am very glad to see

good attendance today, to see your colleague, Congressman Leach,

again, Secretary Lavin, and Congressmen Pitts and Aderholt.

We are very happy, those of us in the China field, with what this

Commission has done. I think hearings such as this, and reports—

I have already read this report and it is a very able, comprehensive, balanced view that will be of inestimable help to people in the

news media, as well as scholars of China. My hope is that some

day this report, which I know is translated into Chinese at least

in part, could be made available in China.

Now, setting the tone for today’s hearing is a challenge. It has

been over a year since I last appeared here, and the last year has

not been a good one for the subjects of our concern, the rule of law

and human rights—human rights, in the sense of political and reliVerDate 11-MAY-2000 10:20 Nov 06, 2006 Jkt 000000 PO 00000 Frm 00008 Fmt 6633 Sfmt 6633 U:\DOCS\30571.TXT CHINA1 PsN: CHINA1
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gious freedoms, protection against arbitrary criminal punishment,

the development of fair and independent courts, and the growth of

a free and vigorous legal profession.

I will speak briefly about some recent developments. Many of us

have hoped that there would be a new Criminal Procedure Law out

in China before the Olympics in 2008. There are so many issues,

which I list in my formal presentation, that cry out for amendment,

revision, clarification, and improvement. It now looks like prospects

for the new criminal procedure laws coming out in the near future

are receding. That is too bad. The idea was to lay the groundwork

for China’s ratification of the U.N. Convention on Civil and Political Rights. China, as you know, signed onto the ICCPR in 1998.

It has been eight years. The hope was, and many Chinese experts

as recently June were still confident, that China would ratify that

Convention by the time of the Olympics.

I think there is a desire on the part of the Chinese leadership

in principle, although they have a hard time living up to it in practice, that China be seen as a fully civilized member of the world

community by 2008. A new Criminal Procedure Law consistent

with the ICCPR would be part of that, but that prospect, too, seems

to be fading.

Now, I had at least hoped that the Chinese National People’s

Congress would abolish the notorious sanction called ‘‘Reeducation

Through Labor’’ that allows the police to put anyone away for three

or four years with no review by the prosecutor’s office, no review

by the courts, and no review by anybody else. That has been one

of the most effective and feared police sanctions for almost the entire history of the People’s Republic of China. There has been a bill

before the National People’s Congress for over two years that would

abolish, or at least substantially reform, that sanction. That, too,

seems dead in the water, at least for now.

So the National People’s Congress cannot be looked to, for the

next year at least, for much action on the questions at issue. Fortunately, the Supreme People’s Court of China is trying to fill the

gap.

There has always been a kind of contest between the National

People’s Congress and the Supreme People’s Court, how much terrain the Supreme Court can cover. They are not allowed to make

constitutional decisions, but they do interpret their power of interpretation broadly. Right now, they are focusing on trying to improve procedures for death penalty cases in China.

As you know, China is infamous, even more than the United

States, for the numbers of people it puts to death. We do not know

the figures—it is a closely guarded secret—but between 8,000 to

10,000 people a year are executed. Now, people know the procedures have been abysmal for trying these people and reviewing

their cases. The Supreme Court of China is trying on its own now

to make important improvements. For that, they have to hire 300

or 400 new judges—that gives you some idea of how many cases

there are to review—who have got to take part in the review process, and they have got to improve the trial processes. They are

making some progress. It is slow. It is difficult. We do not know

how well they will do.

6

Many of us are cooperating, to the extent that they welcome it,

in this effort. But it is the only game in town right now in terms

of law reform of the administration of criminal justice in China.

Now, there have been some disgraceful criminal cases that many

of you know about. The Washington Post, New York Times, or

other news media have been full of various cases. I have been involved in two of them in the last year.

One is the famous blind man, who is what we would call a ‘‘barefoot lawyer.’’ He is not a lawyer, but he is self-taught, and has been

a social/legal activist. He has been locked up now and sentenced to

four years and three months in prison. I brought along a T-shirt

that shows this man. He was a State Department visitor—that is

how I met him—in 2002. When you meet him, you are very much

moved. He is like a Chinese version of, a legalistic Gandhi. This is

a very sincere, very brilliant, very courageous, determined person,

and he is paying the price for it today. Other T-shirts were confiscated by the Chinese police the day I got mine last June.

I also have taken part in the famous case of Zhao Yan, a New

York Times staff person in the Times’ Beijing Bureau, who has now

been sentenced to three years in prison after another trial that can

only be regarded as a farce, and after highly illegal—according to

Chinese law—pre-trial detention, interrogation, et cetera.

These cases, it is sad to say, the Supreme Court does not do anything about in its supervisory powers. Wholesale, they are doing

pretty well. Retail, they have a lot to cover and, I think, to make

up for.

One of the interesting phenomena is that, despite these actions,

the Communist Party itself is showing itself increasingly sensitive

to legal considerations. The Party plays a very important, but little-noticed, role in criminal justice. If important people in the Party

are going to be interrogated, investigated for corruption, for example, the Party usually locks these people up long before they get to

the police or formal criminal process. The Party can hold somebody

for as long as they want, sometimes years. The Party, in principle,

recognizes a few protections, but in practice these people are held

incommunicado. The result is that the elite of China, China’s 70

million Party members, often have fewer rights in protecting themselves against arbitrary prosecution than ordinary members of the

public.

But it is good that the Party is showing some interest in ideas

of judicial due process and other protections. I think this tells you

something about a new generation that is coming along. The Party

has to look more legitimate to its members and they want to seem

less arbitrary.

Another problem I want to talk about is restraints on lawyers.

I am not going to repeat what I have said here before about the

many obstacles and sanctions imposed against vigorous defense

lawyers in China. This year has been even worse. Lawyers have

been physically beaten and abused on many occasions. They have

been deprived of their license to practice law. Some have been prosecuted. Mr. Gao Zhisheng, one of the most outspoken, is currently

under investigation and detained for unspecified criminal activities.

A lot of these people and their families, lawyers as well as their

political dissident clients, are subject to blockades of their home.

7

There is no legal authority for this. In June, I wanted to pay my

respects in Shanghai to a former lawyer who had been disbarred

and sentenced to jail for three years and who had just come out

of jail. I went to his home. He invited me for dinner. Police prevented me from going. When I said, ‘‘What authority have you got

for interfering with my right to see him and his right to see me? ’’

the only answer I got after repeated questions, was ‘‘Women shi

jingcha.’’ ‘‘We are the police. We do not need any authority.’’ More

than that, they showed me their badge. This is what is happening.

People are being subjected to a range of illicit measures that simply are not justified according to Chinese law.

Now, what we find is that there are also other restraints on lawyers. Lawyers in the news media are getting too close for comfort

from the leadership’s point of view. My blind man friend’s real offense was not using the law in court to give the government difficulty, but it was contacting the Washington Post through me. It

was really going on the Internet through the help of Chinese lawyers in Beijing. They do not want people letting the foreign press

know what is really going on. They are also sensitive because many

public interest lawyers in China now are going out of their way to

help groups that are subject to various forms of suppression and

have collective grievances.

In order to stop this, on March 20, the All China Lawyer’s Association, under pressure from the Ministry of Justice, put out a new,

so-called ‘‘Guiding Opinion’’ that really wants to turn lawyers, in

cases involving 10 or more people as their client, into instruments

of the public security forces and the government.

The idea that has been gradually taking root in China since the

1980s that a lawyer is the representative of his client, he is not a

state legal worker, has now been gone back on. They are trying to

convert these lawyers into state legal workers again who do not

have full loyalty to their client, but really have to have absolute

loyalty to the state. This is a very sinister development.

Well, what can we say about the future? Are there any grounds

for optimism? Beneath the top leadership in China you have a marvelous group of able, determined, scholarly, law-reforming people,

hundreds of thousands of these people if you count all the members

of the different professions, from staff of the legislature, to people

working in the Ministry of Justice, even the Ministry of Public Security has some, and certainly in the law schools, among the defense bar, you have a lot of idealistic people trying for law reform.

We hope that in the future these people can be heard from.

The immediate future depends on the 17th Communist Party

Congress that will be held a year from now. There will be personnel changes then. We do not know who will be added to the Politburo, who will be subtracted. There are rumors that one member

recently added to the Politburo, the Minister of Public Security,

who is the only representative of the legal community in the Politburo, will be promoted to the Standing Committee of the Politburo

and placed in charge of the Party Political-Legal Committee that

leads all legal agencies in China in a coordinated way. He may also

become the Chairman of the Party’s Central Discipline and Inspection Commission. If this happens, Minister Zhou Yongkang will

have unprecedented power in the administration of justice.

8

My hope is that the president of the Supreme Court, Xiao Yang,

will be promoted to the Politburo. He should have been put in at

the 16th Party Congress. The fact is that there is no representative

who represents the importance of law among all these engineers

who run the Politburo, and therefore the development of China.

But we do not know. A lot depends on future personnel changes.

Chairman HAGEL. Professor Cohen, may I interrupt just for a

moment? If it is acceptable to you, we can include your full statement in the record. I want to make sure we have adequate time

for questions. We have a large panel today and I would ask, again,

if it is acceptable, if I could move to the next witness. We will place

your complete statement in the record.

Mr. COHEN. Could I make one long sentence, and then I will

quit?

Chairman HAGEL. Yes.

Mr. COHEN. Because this concerns you people. What can we do?

I think the Congress should expand its current funding for support

for the rule of law in China. The critical thing is that you must

make it clear to the Department of State that you support fundamental research on problems such as, ‘‘how did other countries

around China develop genuine judicial independence? Why did it

fail in previous efforts in China? ’’ Right now, they say they cannot

support research, only training and exchanges. My argument is

that this is all very vital, but it helps to know what you really

should be training people about in order to get maximum bang for

the buck. So I think research is fundamental. We do not know

enough. And just as we used to have arguments whether the U.S.

Government should support basic research in the sciences that was

solved long ago. I think we should now solve the question whether

you should support basic research on how to promote the administration of justice in China. Thank you.

[The prepared statement of Mr. Cohen appears in the Appendix.]

Chairman HAGEL. Professor Cohen, thank you very much.

Mr. KAMM.

STATEMENT OF JOHN KAMM, EXECUTIVE DIRECTOR, THE DUI

HUA FOUNDATION, SAN FRANCISCO, CA

Mr. KAMM. Chairman Hagel, distinguished Members of the Congressional-Executive Commission on China. It is always a special

occasion for me to address the Congress of the United States.

I began my work in the field of human rights in China in May

1990, the month that I made my first intervention on behalf of a

political prisoner and the month in which I gave my first testimony

to Congress on China’s human rights record and U.S.-China relations.

I am especially pleased to be here for today’s important hearing.

I was one of the first advocates of establishing this Commission,

and Dui Hua enjoys a close relationship with it. The Chairman and

other Commissioners have been of great help to our work. Thank

you.

For several years, Dui Hua has been conducting a worldwide

search for the names of individuals detained in political cases in

China since 1980. Our database has information on more than

11,500 such individuals, of whom about 3,100 are currently in prisons, labor camps, or other places of detention. Many whose names

9

are in the database are not imprisoned, though they are hardly

free. We know of but a small percentage of the population of those

persecuted in China for political and religious reasons.

We use the database to raise the names of detainees with Chinese officials and make lists that are submitted to departments of

the Chinese Government. A key recipient of our lists has been the

Ministry of Justice, which runs China’s prisons and reeducation

through labor camps.

Through a unique relationship spanning a period of 15 years,

requests for information on about 1,000 individuals detained in political cases have been submitted. Information on hundreds of prisoners, many of whose names we discovered, has been obtained.

Lives have been saved.

The Chinese Government has now decided to close this channel.

The Ministry of Justice has said it will not meet me any more unless I agree to stop raising names and submitting lists. This, I cannot agree to do. The Justice Ministry’s position overturns years of

cooperation in prisoner accounting, cooperation that has enjoyed

the support of leaders, officials, and legislators in both countries,

and especially in the Congress of the United States.

It violates China’s own policy of conducting human rights dialogues on the basis of mutual respect, and represents a setback to

the principles of transparency and open governance. It directly contradicts President Hu Jintao’s recent statement that China is prepared to enhance dialogue and exchanges with the United States

on human rights. Eliminating a unique program of cooperation is

not enhancement, it is a big step backward.

Dui Hua will always find ways to put cases we uncover in front

of the Chinese Government. We will work more closely with the

United Nations, with the governments of countries that have

human rights dialogues with China, with cities and states that

have sister relationships in China, and, most importantly, with

members of this Commission. We will find ways to contact Chinese

NGOs working to build a civil society.

Dui Hua looks forward to the day when Chinese NGOs will

themselves be able to work effectively to secure information and

better treatment for political and religious prisoners and deal with

other human rights issues.

Dui Hua also looks forward to the resumption of the U.S.-China

official dialogue on human rights. When and if the two governments resume the dialogue, we will be ready with a list.

Various reasons have been put forward for why the Chinese government has clamped down on information relating to political dissent and public protest, both of which are growing at least as fast

as the much-vaunted economy. I think the most plausible explanation has to do with the senior leadership’s fear of a ‘‘Color Revolution’’ that would topple the rule of the Chinese Communist Party,

just as other revolutions have done to regimes in the Middle East,

Central Asia, and the former states of the Soviet Union.

Dui Hua is an NGO monitoring political crime and public protest. That it should be targeted in the campaign to oppose the

‘‘Color Revolution’’ when so many other smokeless guns are being

silenced is not surprising. But what makes Dui Hua’s work seem

especially threatening is that it has worked for, and then pubVerDate 11-MAY-2000 10:20 Nov 06, 2006 Jkt 000000 PO 00000 Frm 00013 Fmt 6633 Sfmt 6633 U:\DOCS\30571.TXT CHINA1 PsN: CHINA1
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licized, the release of dissidents and activists, not a mere handful,

but hundreds.

Our work has had the cumulative effect of helping to reduce the

fears and inhibitions of those standing up for their rights. The Chinese Communist Party has a problem: the Party is more and more

afraid of the people, but the people are less and less afraid of it.

Here is how the New York Times’ Nicholas Kristoff puts it:

The basic problem for Mr. Hu is that incentives have changed over the last halfdozen years, encouraging more challenges to the system. As one dissident told me,

‘‘In the past, getting in trouble would mean a 10-year term in prison, alone and forgotten. Now if I go to prison,’’ he said, ‘‘I will get out after a year and I will be

a hero. True, some people are sent to prison longer, like my colleague Zhao Yan,

but few people seem much intimidated.’’

Mr. Chairman, I would like to sum up. In Britain’s darkest hour,

Winston Churchill addressed a group of officers aboard a warship.

He asked what you would get if you put the most gallant sailor,

the most intrepid airman, and the most audacious soldier together

at the same table.

Today we might ask what you’d get if you put the most gallant

rights defender, the most intrepid underground priest, and the

most audacious journalist together at the same table in China. The

answer would be the same: ‘‘the sum of their fears.’’

Those inside and outside China who labor to bring rule of law

and respect for human rights to that great country have achieved

something of special value. By doggedly seeking justice for those

imprisoned for what they believe in, we have helped reduce the

fears of those working for change. This is our legacy, and it is one

that your Commission can be proud of. Now is the time to redouble

your efforts.

Thank you.

[The prepared statement of Mr. Kamm appears in the Appendix.]

Chairman HAGEL. Mr. Kamm, thank you. I would remind each

of the witnesses again that your full statements will be placed in

the record.

I have been asked by one of our members, Senator Brownback,

if he could interrupt the proceedings for a couple of minutes to

make a statement. He is supposed to be in a Judiciary Committee

hearing now, and I have agreed with that request. So at this point

we will go to Senator Brownback, and then come back to the witnesses. Thank you.

STATEMENT OF HON. SAM BROWNBACK, A U.S. SENATOR

FROM THE STATE OF KANSAS, MEMBER, CONGRESSIONALEXECUTIVE COMMISSION ON CHINA

Senator BROWNBACK. Thank you, Mr. Chairman. Senator Hagel,

thank you very much. I am sorry to do this. For other causes and

calls that I have, I will not take too long. I do ask that my full

statement be submitted into the record.

Chairman HAGEL. It will be.

Senator BROWNBACK. Mr. Chairman, I think we are at a very important juncture here. I think there has been a lot of progress that

has taken place in China, and I outline that in my statement. But

I think what you are seeing now is the summation of the fears of

11

the Chinese Government. Instead of there being the rule of law,

they are using the rule by law.

Professor Cohen was saying that he asked why could he not go

see his friend? Well, because ‘‘I am the policeman.’’ That is the rule

by law, not the rule of law. I think we are seeing a fearful government resort to the use of rule by law to sustain their own power.

We are seeing more and more of this suppression and oppression

taking place.

To me, this is the time for us to push more aggressively and

more specifically and directly at the Communist government. That

is the group that is doing this. That is the group that is using the

law to sustain their own power and ignoring the law when it does

not sustain their own power. I think we need to have a discussion

of the regression by the Chinese Communist government. Mr.

Kamm, who I have met with over the years—and I admire greatly

your work, and more, even the people on the ground in China that

you work with, and people that have gone to prison—who have

done a great deal to try to connect the United States and China,

and working that back and forth, are now being shut out by this

country. I think it is important for us to go directly at the regime.

One final point on this. This is a bit of a sidebar, but I think it

is also an indicator of the problems you get when a regime operates

the way this one does. I have worked with North Korean refugees

for some period of time. We have had the first group come out from

North Korea, being accepted into the United States as refugees.

The women in this group say, 100 percent of the women that walk

out of North Korea into China are trafficked. They are caught by

somebody local in China, they are told by their Chinese captors,

their hunters, that ‘‘you do what I say or we are turning you in to

the Chinese authorities, who will send you back to North Korea

and you will end up in the gulag, and you know what happens

there.’’ One hundred percent of the women are caught, then sold

to some Chinese man who tells them the exact same thing: ‘‘do

what I say or else I am turning you in to the authorities. You will

be sent back to North Korea to the gulag, and you know what happens there.’’

This is because China is refouling and breaking an international

human rights obligation that they have, and then you get this trafficking that takes place because of that. It is the regime that is

doing this.

I only point it out as one of a number of cases of what you are

seeing of when a country violates its own laws, the human rights

of its own citizens or people that are there, that you continue to

see the deterioration taking place. That is why I applaud this hearing.

I applaud the Report for its footnoting, but I think we are weak

on our conclusions. I think we need to press the Chinese Government, the Communist government, much more. That is why my

vote will be against the report, although I do appreciate the effort

of pulling together, I think, a very strong narrative in this report.

I think it is very good in that result, in that part. But I think the

recommendations need to go right at what the government itself is

doing and really press that government for more change.

12

Mr. Chairman, I want to thank you as well, again, for allowing

me to break in at this point to say that. I appreciate that, and appreciate the hearing.

[The prepared statement of Senator Brownback appears in the

Appendix.]

Chairman HAGEL. Senator Brownback, thank you.

We will resume hearing from our witnesses.

Dr. Pei.

STATEMENT OF MINXIN PEI, DIRECTOR, CHINA PROGRAM,

CARNEGIE ENDOWMENT FOR INTERNATIONAL PEACE,

WASHINGTON, DC

Mr. PEI. Thank you, Mr. Chairman and members of the Commission. I feel very honored to be here today as a witness to this Commission. This Commission’s work is very important for those who

want to see a China that is not only economically prosperous, but

politically democratic.

Like many observers of developments in China, I have watched

with increasing concern recent trends that indicate deterioration in

human rights conditions and stagnant progress toward strengthening the rule of law. While today’s China is a much kinder and

gentler nation than it was before the reform period began, and we

should give the Chinese people and pro-reform forces in the Chinese Government all the credit for achieving such amazing

progress in poverty reduction and expansion of personal freedoms,

we must also recognize that the pace of improving political rights

for Chinese citizens and strengthening the institutions of the rule

of law has lagged significantly behind the speed of economic

progress.

In recent years, the process of political liberalization has stalled,

even as the Chinese economy continues its rapid rise. In today’s

testimony I will briefly focus on the underlying causes for the deterioration of political rights and stalled progress in China.

In my judgment, recent symptoms of rising social unrest may be

only a partial explanation for the government’s intensified efforts

of social and political control. The more important causes for China’s backslide on human rights and the rule of law originate from

a combination of factors that, together, reduce the ruling elite’s incentive to pursue political reform, while increasing their capacity

for political control.

China has fallen into a classic transition trap at the moment.

The current stage of transition, with half-finished economic reform

and minimal political reform, provides an ideal situation for the

ruling elites who can maintain power with a mixture of economic

performance, political cooptation of new social elites, and the increasingly effective application of political control.

Economically, the strong growth record since Tiananmen has

reduced the pressure on the Chinese Government to pursue democratic reforms. Indeed, it has even provided justifications for a

hardline position on human rights.

More importantly, because under one-party rule China’s political

elites can easily convert their political power into economic wealth,

they have even less incentive to permit greater political competition. It is obvious that democratic reforms will threaten not only

13

their political monopoly, but also their newly acquired economic

wealth.

At the same time, the Chinese Government has been adapting

itself very skillfully to new socioeconomic changes. It has done so,

first, by including social elites such as professionals and intellectuals into the ruling circle. In addition, it has also managed to

co-opt new social elites, especially private entrepreneurs. This

strategy has eliminated challenges to the Party’s authority from

the most well-endowed and capable elements in Chinese society.

Over the last decade, the Chinese Government has also greatly

improved its capacity for suppressing both political dissent and social unrest. It has done so by heavy investment in law enforcement

and technology. These strong capabilities, unfortunately, seem to

have convinced the Chinese leadership that a tough approach to

dealing with political dissent and social frustrations is a more effective way than political negotiation, compromise, and democratic

reforms.

As long as this combination of factors persists, it is very unlikely

that human rights will improve in China, nor is it likely that the

rule of law will be strengthened.

But the picture is not all that gloomy. Despite the Chinese Government’s unrelenting efforts to control the mass media and limit

the growth of democratic forces, Chinese society continues its

amazing change. At the moment, it is not possible to form a broadbased democratic opposition to challenge the authority of the party,

but the spread of personal freedom, the information revolution, and

market forces is creating a more conducive environment for social

pluralism in the long run.

So, finally, I would like to strongly applaud the professionalism

and outstanding work of the staff of the Commission that has produced this document. The situation in China is unsatisfactory at

the moment. I think the only means available to us to pressure the

Chinese Government is through combined efforts from Congress

and the Administration, and this report is a great example of that

kind of effort.

Thank you very much.

[The prepared statement of Mr. Pei appears in the Appendix.]

Chairman HAGEL. Dr. Pei, thank you.

Mr. Xiao.

STATEMENT OF XIAO QIANG, DIRECTOR, CHINA INTERNET

PROJECT, THE GRADUATE SCHOOL OF JOURNALISM, UNIVERSITY OF CALIFORNIA AT BERKELEY, BERKELEY, CA

Mr. XIAO. Thank you, Mr. Chairman and distinguished Commission members. It is a privilege for me to speak in front of this

important Commission, and alongside of my distinguished fellow

panelists.

I particularly want to echo what my colleague Pei Minxin just

said of his analysis of China’s political situation. I fully support

that.

Today, my talk will focus on two things, the growing information

flow on the Chinese Internet, and the Chinese Government’s intensified control in this regard.

14

In China, every number is huge. On the Internet, over 130 million Chinese are online, 440 million cell phones are in use. Now I

am talking about the blogosphere. In January 2005, China estimated to have around 500,000 bloggers. By the latest survey, it is

28 million blogs. This significant growth is mainly due to the fact

that the main China Internet portals, such as Sina.com and

Sohu.com, are actively promoting blog applications among the 130

million Chinese Internet users.

But it is worth noting that all these Internet companies are funded through venture capital from the United States and are listed,

or aiming to be listed, on the NASDAQ stock market.

The unintended effect is that Chinese citizens now have a platform to create a public space to discuss political and public affairs,

as well as creatively expressing themselves and form social networks online or offline.

Mr. Chairman, online discussions are currently becoming a real

phenomena that is starting to have real agenda-setting power. The

Chinese Government has devoted enormous financial resources to

set out government-sponsored Web sites at all levels of government. Before the blogs, about 10 percent of Web sites were directly

set up by the government. However, the problem is that the Chinese netizens do not believe those propaganda efforts, and the

blogs and BDS are far more popular than government Web sites.

This leads to my second point. The Chinese Government has intensified control of the Internet. This effort is well-documented. I

particularly want to praise the Commission’s report this year,

which has excellent documentation of the control measures.

But I want to just focus on two telling examples of this important

component of this Internet control, as has been said by my co-panelist, John Kamm, and that is about fear.

In January 2006, the Shenzhen Public Security Bureau created

animated images of a pair of police officers name ‘‘Jingjing’’ and

‘‘Chacha.’’ They sound like panda names, but they are two virtual

police images, floating online on the Web sites. Anybody can click

through to the police Web site and can report anybody else. According to the Chinese official e-Governance Net Web site, it said, ‘‘The

main function of Jingjing and Chacha is to intimidate. . . . The

Internet has always been monitored by the police. The significance

of Jingjing and Chacha’s appearance is to publicly remind all

netizens to be conscious of the safe and healthy use of the Internet,

to self-regulate their online behavior, and maintain harmonious

Internet order together.’’

Another important method to monitor Internet activities is to use

real-name registration. In June 2006, the Ministry of Information

Industry ordered all weblogs and Web sites to register with government or face closure. This registration will impose a true-name system on Web site owners. After registration, one must display an

electronic verification mark in a specific location on the Web site,

and it must also link to the Ministry’s supervision system for making inquiries. By doing so, the identity of a Web site owner will be

immediately clear.

These examples reveal that the Chinese Government has learned

to turn the digital and transparent properties of Internet technology into a surveillance and intimidation tool to control citizens’

15

behavior. The underlying mechanism works to instill fear among

netizens that they are being watched.

Of course, these new technology-empowered control mechanisms

are only effective when they are used together with intimidation in

the physical space. In the past two weeks, three cyber-dissidents

have been arrested.

Mr. Chairman, distinguished Commission members, let me put it

this way. For China’s one-party state, controlling the nature of the

information available to its citizens has never been more difficult.

Tens of millions of netizens are now empowered by the new publication platform, and what is happening in the Chinese blogosphere

is a power shift, not directly at the level of political institutions or

law, but around the change of communication systems and ability

to shape information and symbolic environment. But the long-term

survival of the Chinese Communist Party’s power monopoly regime

also critically relies on its ideological work and the control of this

environment.

In the near future, we will see more and more efforts by the Chinese Government to control the information flow, online or offline,

under this control, using the mechanisms listed in the Commission’s report and the examples I mentioned above. But a deeper

problem is that the Chinese Communist Party itself is morally

bankrupt and intellectually exhausted.

As Professor Cohen said, there is a younger generation with

higher ideals. What are the ideals? The ideals are democracy,

human rights, rule of law, those that we all believe in together.

When they gradually rise into positions, and these ideals and ideas

are being facilitated by the new emerging communication platforms, we can see, in long-term, the Chinese censors cannot stop

the rise to a freer Chinese society.

Finally, I just want to say that the U.S. Government should be

a more active player in the development and employment of anticensorship technologies, which will not only help the Chinese people

to gain direct access of information to the U.S. Government-sponsored Web sites, but also contribute to the greater information flow

in Chinese cyberspace.

The Great Firewall, no matter how advanced its technology and

how much fear the government is trying to instill, will crumble,

and much sooner than the Great Wall. Thank you.

[The prepared statement of Mr. Xiao appears in the Appendix.]

Chairman HAGEL. Mr. Xiao, thank you. Thank you again to each

of our witnesses for your helpful and enlightening testimony.

We have good representation on the Commission this morning, so

I would suggest that we take, each of us, five minutes for our first

round of questioning. We will stay as long as the witnesses will

stay with us to answer questions, if that is acceptable. Thank you.

I will begin, Mr. Xiao, with your ending comments. I want to

focus on the Chinese Government’s blocking, in particular, of the

Web sites of foreign news organizations and human rights organizations. As you probably know, in May of last year the Chinese

Government began blocking this Commission’s Web site from being

viewed in China.

I have a two-part question. How does the Chinese Government

determine which foreign Web sites are to be blocked?

16

Mr. XIAO. Essentially, they pay attention to the politically sensitive materials far more than any other Web sites, such as pornography, which they are only halfheartedly trying to block. For a

particular Web site, the criteria is usually coming from Chinese

language content, first. The Hong Kong news media, Taiwan news

media, the BBC Chinese site, the Voice of America, Radio Free

Asia, and the Chinese dissidents human rights organizations and

other overseas publications.

Then, the second priority is English-language news media, but

with content that they feel is ‘‘politically undesirable.’’ I think the

Commission Web site falls in that category. Particularly if you have

your materials translated into Chinese, then it falls into the blacklist right away. The problem with that also is that there is no clear

procedure. They never say which ones are blocked, and also once

a Web site has been blocked, there is no way to get it off the blacklist either.

Chairman HAGEL. The second part of the question is this, what

actions can the U.S. Government or the international community

take to circumvent this government censorship?

Mr. XIAO. Fortunately, the Internet, by nature, is a decentralized

technology. Those information packets can travel in every direction.

The later applications of pure technologies and proxies are relatively easy and inexpensive to get around the firewall, as long as

those applications are being more and more adopted by the Chinese

netizens. We need a certain amount of financial resources to develop those technologies to support a number of those kinds of activities and projects, but the impact with this investment is totally

worth it.

On the number, you will probably only see a small portion of

Chinese Internet users actually using this technology to get around

the firewall, only the tech-savvy ones, only the ones who use the

Internet a lot. But these are the people who have a much larger

audience in China, so you do not need 130 million Chinese people

using this, all you need is 100,000 people actively using it. But

these are the 100,000 people who are journalists, teachers, and

freelance writers who have a greater impact on their opinion leaders in China’s cyberspace.

Chairman HAGEL. Thank you.

Dr. Pei, given the current state of freedom of expression in

China, and each of you have discussed this issue in some detail in

your testimony this morning, how much freedom of expression and

freedom of the press do you expect for the 2008 Beijing Olympics?

Mr. PEI. I think there will most likely be a period of intensified

control around the Olympics that is for the purpose of maintaining

stability, because it is crucial for the Chinese Government to maintain social and political order. Their mind-set is such that they believe control equals stability, so that is going to be expected.

However, if you look at the Chinese press as a whole, you will

find that in a cultural sphere, and now increasingly in the business

sphere, there is a lot more freedom. The sphere of control that the

government continues to monitor and control very tightly is just

strictly the political sphere.

17

Chairman HAGEL. Thank you. Mr. Kamm, the same question, if

you would care to add anything to what you heard regarding the

2008 Beijing Olympics.

Mr. KAMM. I would agree with Dr. Pei. I think there will be an

attempt to increase controls in the name of stability. I am not very

confident that the Chinese Government is going to be very successful. I have heard various figures that 20,000 foreign journalists will

be in the country. There will be a lot of reporting that those journalists do that have very little to do with the Olympics, per se.

As recently as a few weeks ago, the Chinese Government has

once again stated that it will allow journalists freedom to move

around the country and write about whatever they want. But I do

anticipate that, in line with the current campaign against the

‘‘Color Revolutions,’’ that they will, in fact, impose new strictures

on the press and on foreign journalists.

Chairman HAGEL. Thank you.

Professor Cohen.

Mr. COHEN. It can be noted, however, that recently foreign journalists—regulations—some of them are being subjected to requests

for strip searches and things of that nature.

The Foreign Correspondents Club of China is very concerned

about it and has recently put out a special bulletin because so

many foreign journalists have actually run into new restrictions in

practice.

Chairman HAGEL. Thank you.

Congressman Leach.

Representative LEACH. Well, thank you, Mr. Chairman.

I want to raise kind of a bedeviling issue for us on tactics. I think

we are obligated to record, to the greatest extent possible, every

abuse of the human rights circumstance that we can discern. But

then we have the problem of advocating for the individual. One has

the sense that in the human rights arena, in many countries, over

many years, advocacy from this country has been helpful. But one

also has the sense, in the last two or three years in China, that

if one takes a specific individual and advocates for that individual,

it is counterproductive for that individual.

This raises a very interesting question of where we should come

down on individual cases. I mean, that is, describing the big picture, with the reference to every individual’s circumstance in a report is one thing. Going to an official and saying, ‘‘Individual XYZ

should be taken out of jail,’’ it seems that that causes a spinestrengthening on their side.

Do you have that sense, Mr. Kamm, Dr. Pei?

Mr. KAMM. I would say, until very recently, I do not have that

sense. But I do think very recently—in fact, in the last few weeks

and months—the Chinese Government might be attempting to

disabuse us of the notion that by raising cases, the fate of those

people is improved.

In my written testimony, you will see that I have done an analysis of a prisoner list that former Assistant Secretary of State

Lorne Craner handed over five years ago exactly. If you look at

what happened to the people on that list who were in prison at the

time the list was handed over, you will find that they enjoyed a

18

rate of early release from prison three times greater than other political prisoners who were not on the list.

I could give you many other examples where people who are on

lists, who are repeatedly raised with the Chinese Government, are

better treated, and get early release.

In addition to what I pointed out in my testimony, that this has

had the cumulative effect of making people less fearful, I would

point out that some of the people who, through advocacy, have been

released, such as Rebiya Kadeer, have become extremely effective

spokespeople for their causes in China.

But I am concerned that recently it has come to my attention

that some prisoners who are the focus of international attention

may, in fact, not be getting better treatment.

Representative LEACH. Dr. Pei.

Mr. PEI. I want to add two points. First, I think we really do not

know. If there were not that kind of international attention, their

plight might have been even worse.

The second point I want to make is that in the last two years

the United States has lost a great deal of leverage vis-a-vis China

about human rights issues. The United States, in fact, needs China

more than before on Korea, Iran, and a bunch of other issues, on

economic issues, and the symbiotic economic relationship has

grown much tighter. The Europeans are also in a similarly weak

position vis-a-vis China. So as a result, that kind of attention is not

producing the desired outcome.

Representative LEACH. Mr. Cohen.

Mr. COHEN. In criminal cases, the hardest judgment for every

Chinese family of someone who has been detained is whether or

not to go public. Chinese do not like to wash their laundry in public. Normally they want to try to handle things quietly, informally

in the Chinese way.

But for serious cases, at some stage, usually after a formal arrest

has been announced and it is clear prosecution is going to go

ahead, Chinese families then decide the time has come to go public.

Now, just as the two previous speakers have made clear, a lot

depends on the timing. In 2000 and 2001, when the Congress had

to decide whether or not to grant China permanent Most-favoredNation [MFN] treatment, we had maximum leverage. I looked pretty good getting people out of jail. But now the Chinese Government

does not have that kind of situation. They feel more confident.

They do not want us to see that we can be successful by naming

different people.

A good example is Yang Jianli, the democratic organizer from

Boston who made the mistake of going back into China after having been excluded for 12 years and using a friend’s passport. He

should have been sentenced to not more than one year, but they

used the phony ID to give him five years. He is serving out that

full five years. A lot depends also on the person’s behavior. How

compliant is the person while detained? How stubborn? So, there

are a number of factors.

But, generally speaking, we have less leverage. Of course, the

origin of this Commission lies in the fact we recognize that in

granting MFN permanently to China we would need new forms of

leverage.

19

Representative LEACH. Fair enough.

I apologize, on behalf of the House side. We have votes on the

House floor at the moment, so Mr. Levin and I will have to leave.

But thank you all very much.

Representative LEVIN. Could I just add quickly, this has been an

important hearing. I think it emphasizes, within our ranks, if I

might put it that way, there is less question about the facts and

more concern about what we do about them.

Senator Brownback has said he thought the suggestions or the

recommendations were not strong enough. We did some work preliminarily to try to work on that very issue, all of us. So, I do think

it would be helpful as we proceed, and we must, that all of us work

on the issue of how we approach the dynamics.

I think that, while China is a huge country and it is not always

clear what the facts are, the basic dynamics are pretty clear, the

information revolution, the economic growth, but disparities. There

are deep divisions within China now economically, so there is more

turbulence. The question becomes, how do we most effectively affect that? The more help we can get, the better. Suggestions of research, development of new technologies to counter repression are

good. But should we be spending more funds, for example, working

with groups in Hong Kong or elsewhere who can affect China if we

do not do it directly?

All these suggestions, that is really what I think we need, practically, is to focus on how do we proceed from here, because, clearly, the whole purpose of this Commission was, as we engage China,

as we must, we also have to confront, if I might use that word,

China in terms of its development of political/religious freedoms.

Thank you.

Chairman HAGEL. Gentlemen, thank you each for your active

participation and contributions.

Secretary Lavin.

Mr. LAVIN. Thank you, Mr. Chairman.

Let me begin by complimenting all of the participants who provided testimony today. I found it a very useful overview of the

issues we are looking at.

I would like to begin by posing a question to Professor Cohen on

the commercial dimension. It is an issue that we frequently grapple

with at the Commerce Department. To what extent are the commercial elements of human rights part of the broader civil rights

challenge? Do you subscribe to the view that improvement in commercial rights, property rights, and so forth can lead to broader improvement? Could you comment on that?

Mr. COHEN. The growing recognition in China of rights consciousness, of the awareness that is growing, reaches property law.

But you will notice the effort to enact a property law recently

failed. I think it will succeed, but there is a big ideological debate

going back to the remnants of the impact of earlier decades of Communist philosophy, as well as there are questions of people protecting their own economic interests, in some respects.

But there is no doubt that property law, putting respect for property rights in the Constitution, having people trying to enforce commercial rights, not only foreigners but people in China themselves,

this is important. We just had a new bankruptcy law after a long

20

period of gestation. There will be an antitrust law soon. But the

real problem is enforcement. You can enact all the laws you want

and raise all of people’s consciousness, but if you have not got credible legal institutions to enforce those rights, you only enhance people’s sense of disappointment, frustration, and cynicism.

So here is the common factor between commercial interests and

those who are interested in political freedom being protected, et

cetera. You have to have a credible court system, and you have to

have a credible arbitration system.

For 20 years, I represented foreign investors in China. We did

not have anything to do with the courts because nobody wanted to

have anything to do with them. They were not credible. So we used

arbitration. But experience has shown that most—not all—of China’s arbitration suffers from the same problems that the courts

suffer from: incompetence, corruption, networks of relationships,

influence, local protectionism.

China has a crisis of legal institutions and those affect commercial aspects of life, as well as political freedom aspects of life. That

is why I think it is critical to focus on ways of improving the functioning of the courts in China. Efforts to do that, whether for commercial reasons or others, I think, have a common benefit in all

these respects.

Mr. LAVIN. Part of the discussion of human rights in China

involves——

Mr. KAMM. Well, in the particular work I do, I have not found

much support from the business community over the years, not to

say outright opposition, but certainly almost no support at all.

Mr. COHEN. You used to be a leader in the business community.

Mr. KAMM. Well, that is right, but those days are long gone, I

am afraid. Recently I have seen that in the American Chambers of

Commerce in China, they have started corporate social responsibility committees. I was invited to speak to a small group of committee members recently in Shanghai. They are, in fact, more and

more interested in the human rights situation, and I think that is

something we can work on.

Mr. LAVIN. But I was thinking more indirectly, Mr. Kamm, if I

may, just in the sense of—I am not sure how realistic it is for the

companies to formally promulgate human rights points of view, but

is the existence of multinational corporations [MNCs] in China, the

way they treat people, the way they train people, the way they conduct business, does that process lend itself toward a general improvement in human rights in China or is it not relevant?

Mr. KAMM. I look at the human rights environment in terms of

two spheres. One is the overall picture, the overall environment

which you document so well in the Commission’s report. There, I

do not see much impact in the overall general environment by multinational corporations.

However, in the workplace, no question about it, workers who

are in American-owned factories and American offices certainly are

exposed to values of openness and transparency, good governance.

This is a very good thing.

I am particularly interested to see how Sarbanes-Oxley is going

to be used in China in Chinese companies. I think it is going to

pose a tremendous challenge as time goes on. But the very fact

21

that when you go into a Chinese bookstore now, you will find the

Sarbanes-Oxley legislation translated into Chinese and available

for people to read. That is a good thing. So, that is how I would

address that question.

Mr. LAVIN. Thank you, sir. Thank you, Mr. Chairman.

Chairman HAGEL. Secretary Lavin, thank you.

Since we have a vote called, I am going to recognize Senator

Martinez, with your permission, so he can ask his questions and

then go vote, then we will come back to you, Mr. Secretary. Thank

you.

Senator Martinez.

Senator MARTINEZ. Thank you, Mr. Chairman, very much. I want

to thank all of the witnesses, and also praise this important report.

I know it will make a great contribution to our future analysis.

I tend to associate myself with the remarks of Senator

Brownback in terms of ‘‘where do we go from here? ’’ being the real

important question. There are a number of things I would love to

delve into, but I will try to organize my thoughts and zero in on

a couple that are particularly of interest to me.

I am concerned about this condition of prisoners. I know, Mr.

Kamm, your foundation works in this arena, so I wonder if you can

tell us whether there are any signs of progress or improvement beyond whatever the report may show, but just to highlight here

today for me, not having read the whole report, as to what those

conditions may be and what the prospects are.

Are there international visitors permitted, such as the International Red Cross, particularly with the prisoners of conscience,

those that are really in prison only for their beliefs?

Mr. KAMM. A really ground-breaking visit took place in China,

Senator Martinez, at the end of last year. The U.N. Rapporteur on

Torture was allowed into the country and he produced quite a good

report. The report basically says that torture in China remains

widespread, but it appears to be declining in urban areas. He goes

directly to your question about whether conditions are improving.

I would summarize the report to say that, as far as the detention

centers are concerned, and that is where people are held in detention for long periods before being brought to trial, we do not see

improvement. In fact, it is probably getting worse.

As far as the prison system is concerned, since 1994, since there

has been a prison law, I have seen some improvements. There are

certainly many problems. By the way, the 1994 prison law, I do

think, was in some respects occasioned by the whole debate about

MFN in this country.

Now, with respect to the international community, the Red Cross

is still not allowed into China’s prisons. There have been discussions held on that issue for more than 12 years and they have so

far not resulted in an agreement. That is how I would summarize.

Senator MARTINEZ. It is encouraging that one group has been

allowed in.

Mr. KAMM. Well, the Working Group on Arbitrary Detection has

been in twice, and the Rapporteur on Torture has been in once.

That is what we have so far. And the Rapporteur on Torture was

able to interview political prisoners, and some of those interviews

22

made it into the final report. So, that is a step in the right direction, but it really has been just one visit like that.

Mr. COHEN. But he made clear that he interviewed under constraints and his report was so strong and so critical, I think it is

going to be a long time before they let him back in again.

Mr. KAMM. Probably right.

Senator MARTINEZ. The issue of organ harvesting among executed prisoners. I wonder if either you, Professor Cohen, or Mr.

Kamm can comment on where we are on that and how prevalent

is the practice? Are there any human rights standards that are

being followed or observed as it relates to that?

Mr. COHEN. This is, of course, one of the most controversial questions. The Falun Gong has made the most serious accusations

against the government. Thus far, we have not found that substantiated. The lack of transparency in China makes it very difficult to

know what is going on. They have passed regulations that, on the

face of the regulations, forbid illegal harvesting. But my impression

is that it is going on. I do not know whether you could say there

is an economic incentive to go on executing so many people, in part,

because obviously clear benefits are coming to certain agencies and

people from organ harvesting. Of course, benefits also incur to the

people who are the recipients of the organs, which are in scarce

supply outside of China. But this is a very difficult problem. The

Chinese Government has not allowed sufficient transparency. We

do not know how to answer accurately some of the very controversial charges that are being made.

Mr. KAMM. I would simply add here and repeat something that

Professor Cohen said in his opening remarks. We do not know how

many people are executed every year in China. It is a very closely

held state secret. I tried, on my most recent trip, to get some idea

of the number. There have been reports. One member of the National People’s Congress said, I think two and a half years ago,

that the number is about 10,000 per year.

More recently, an individual said that he had been given the

number—this is a Chinese scholar—by the president of the Supreme Court and the number is appalling. We simply do not know.

I recently found the first-ever county-level report with statistics

on the number of individuals executed in that county between 1950

and 1999. If you extrapolate from that number—and I am told it

is not a representative county—the number would be closer to

20,000 executions.

Senator MARTINEZ. Per year?

Mr. KAMM. Yes. If you extrapolate from that number. Now, I

think it is not a representative county. It is in a border region and

there is a lot of drug smuggling going on. The execution rate in

that county is probably higher there than elsewhere. But I am convinced that the number for the country as a whole is well in excess

of 10,000.

Finally, I want to say that we are facing a particularly serious

situation over the next few months. This is the execution season in

China. People are typically executed toward the end of the year in

China. Right now, the Supreme Court has had the power of review

returned to it, but it is not exercising that power of review. In my

opinion, if and when they do exercise that power of review, many

23

people will not be executed. So it is extremely urgent that the Commission and members of the Commission press hard that this important reform be instituted quickly, otherwise I fear hundreds of

people will lose their lives; innocent people who have been convicted without due process rights will be executed. This is a very

urgent situation.

Mr. COHEN. For that reason, some lawyers have suggested an

Illinois-type moratorium until the Supreme People’s Court’s new

review procedures can be set in place. It does not look like the Supreme People’s Court is likely to accept that. I mentioned this issue

in my written statement.

Senator MARTINEZ. I have to go vote. But let me just say, there

are a number of other questions I would like to touch on, but am

limited by having to run to the floor to vote. I think it is really

important that we talk about these issues.

I would love to know more about the development of civil society

and the opportunities that there are for that. I think it is also terribly important that information and the free flow of information

be maintained and continued. Internet access, I think, is a vital

way in which, in our current times, people can, frankly, find forums of discussion and support, so I think it is vitally important

to continue that work.

I also would love to discuss this further with you, Mr. Xiao, in

terms of how it might be utilized in a place very close to my own

heart, which is Cuba, which has great similarity to all of the issues

that we have been discussing here with respect to China today.

One big difference is that we do not trade with Cuba. I am often

asked why we do not trade with Cuba when, in fact, we trade with

China. That question I usually answer by saying ‘‘Well, I wonder

whether that is improving the conditions of the people of China by

our continued business with our conscience.’’ I think it is a real

problem.

So I think as we continue to flourish in our bilateral relationships in trade and commerce, and as we go to the store and find

the ‘‘Made in China’’ label on just about every other thing that we

purchase, we should not wonder what the obligation is of those of

us who engage in commerce with China to end these heinous practices, or at least raise our conscience to a level to cause us to

wonder if it is all right and everything is fine, and China is the

prosperous country that we all know it is. The Olympics are going

there, but yet something is very ‘‘rotten in Denmark,’’ to quote from

William Shakespeare. Thank you very much.

Mr. LAVIN [presiding]. Thank you, Senator.

With your permission, Representative Honda, we will ask Deputy

Secretary Law to proceed with his questions.

Mr. LAW. Thank you, Mr. Chairman. I am pleased to see that we

have rules for the peaceful transition of authority on this Commission.

I first want to commend all of the panelists for truly cogent and

penetrating testimonies. It has been a wonderful learning experience. I also want to thank each of you for your commitment, your

personal commitment of time, treasure, and talent to this tremendous cause.

I was particularly taken by a theme that was part of Dr. Pei’s

testimony, and my question will be directed at him. The reason I

24

was taken by it is because it dovetails perfectly with the opening

statement that I was going to give at the outset, which I would like

to submit for the record. I would like to briefly summarize a few

of the points I would make, which would then lead to the question.

One of the questions we often ask ourselves is whether the glass

is half full or half empty. Someone once wisely responded to that

by saying that it depends entirely on how thirsty you are. When

we try to assess progress on human rights in China, there are often

two views. To some in the West who are eager to do business in

China, the glass appears half full.

But to those in China who are thirsting for freedom of speech,

religion, and assembly, who are thirsting for the protection of an

impartial rule of law, the glass remains half empty and appears at

times, especially more recently, to be slowly evaporating.

I want to extend my thanks to the Commission staff for assembling a report that gives due credence to both perspectives, noting

the progress that China is making undeniably on certain human

rights issues, as well as highlighting the disconcerting slippage

that has occurred in recent months with respect to basic political

freedoms.

What is important to discern in all this is not individual anecdotes, but meaningful trends. One of the most significant trends,

in my view is the growing intersection and overlap of fundamental

human rights issues and larger economic interests. We see this vividly in the area where the Department of Labor is most directly engaged, and that is in labor rights.

Increasingly, China’s ability to institute basic wage protections,

health and safety standards, and pension rights will be a key determinant in achieving both economic and civic stability. The Chinese Government knows this and has been fairly forward-leaning

in seeking technical assistance from our department and in pursuing labor law reforms that can help quell mounting unrest over

labor conditions in China. My written statement does list and enumerate some of the results of the progress we have made in that

area.

Another example of this trend is the growing nexus of freedom

of speech, regulation of the Internet, transparency of economic information, which some of you have discussed, as well as respect for

intellectual property.

As freedom begets freedom, repression also begets repression.

China’s curbs on political dissent have slowly but surely metastasized to constrict the free flow of information on the Internet,

access to the Internet, and unfettered economic reporting. Such

restrictions not only impinge upon individual liberties, they also

impede the effective functioning of China’s own economy by discouraging the creativity, collaboration, and transparency that are

the lifeblood of sustained economic growth.

We raise these concerns and issues in this Report not to scold

China or to claim moral superiority, and nor to disparage China’s

commitment to achieving continued progress on all these fronts.

But as these issues of human rights and economic growth converge,

China will increasingly discover that freedom is not divisible and

the rule of law, not repression, is the best guarantor of prosperity

and stability. Finally, those who currently see the glass as half full

25

will begin to share the same perspective with those who see it

today as half empty.

Now my question for Dr. Pei, and anyone else who would like to

respond. In your recent book, ‘‘China’s Trapped Transition: The

Limits of Developmental Autocracy,’’ you point out the strains between China’s dualistic policy of pro-market economic growth on

the one hand, and continued autocratic one-party rule on the other.

In your view, is the Communist Party’s dualistic strategy sustainable in the long term? How can we as policymakers best challenge that policy to promote greater, broader human rights and

freedom in China?

Mr. PEI. I believe this strategy is not sustainable for the long

term, mostly because Chinese society itself is growing far more

complex, plural, and it will require increasing investments in law

enforcement and political control that simply are going to be

unaffordable.

The second part is that what has underwritten this strategy is

continued economic growth. We cannot take for granted that China’s economic growth will continue for the next two to three decades. That is because the current growth model itself is not only

inefficient, but is producing imbalances that contribute to rising

social and political strengths.

Certainly, I think what is most important to know about China

is the lack of values that will give both the people in China confidence, and also the members of the ruling elite the confidence

that this system will work. From my own research, it is abundantly

clear that there is not only a crisis of confidence on the part of ordinary citizens, but there is also a crisis of confidence on the part of

the ruling elite.

Mr. LAW. Interesting.

Yes?

Mr. XIAO. If I could just add a little bit to what Dr. Pei just said

regarding your question of whether the current ruling model is sustainable. I agree that in the long term it is not sustainable, and

would add two factors.

One is simple, but is important: the environment. China’s economic growth has enormous environmental cost, environmental

degradation, and that factor will get back to China’s economy, and

also its sociopolitical stability.

The second, we have discussed a little bit less here, is the Chinese Communist Party, by nature, is the controlling force of the nation. Yes, it is ruled by law, but most importantly it is the rule by

the gun and the rule by the pen. That is Mao Zedong’s quote and

it still works today.

It is ruled by the violence, intimidation, and backing by a propaganda, ideological machine that the Party governs. That machine

is really in crisis because of the Internet and other commercialization of official media. That is where the Chinese people cannot be

fooled any more and that is where the Party is fighting a losing

battle.

Mr. LAW. Thank you both. That is a very important point. That

is the only question I wanted to raise. It does go, though, to a point

that Mr. Kamm made earlier about the fact that, in recent years

in particular, the business community has not been actively enVerDate 11-MAY-2000 10:20 Nov 06, 2006 Jkt 000000 PO 00000 Frm 00029 Fmt 6633 Sfmt 6633 U:\DOCS\30571.TXT CHINA1 PsN: CHINA1
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gaged on these issues, but slowly but surely as that business model

becomes unsustainable, the business community will have to start

to look more intentionally and be more engaged on these issues.

Thanks.

Mr. COHEN. Could I just supplement this with a reference to a

question Secretary Lavin asked earlier that I did not chime in on

about the impact of American cooperation with China in the business sphere?

Although our hopes that this would produce more rapid political

and legal reform have not yet been vindicated, I think the broader

impact continues. The opportunities that foreign business provides

through massive investment in China and technology transfer are

a very important influence. The joint venture, the foreign-invested

enterprise, is a mini university in a country that has not yet allocated sufficient resources to higher education.

On the other hand, the business community in the United States

and elsewhere seems blissfully unaware of the full weakness of

Chinese legal institutions. I think it should be applying far more

cooperation and pressure for improvement. Hundreds of thousands

of contracts, literally, are made every year, most of which provide

for arbitration of disputes in China. People who sign these documents often are crossing their fingers and closing their eyes, or are

simply unaware of the risks involved. It is only when they do get

involved that they see the weakness and the inadequacy. I think

foreign business should be working harder with the Chinese to

strengthen these institutions.

[The prepared statement of Mr. Law appears in the Appendix.]

Mr. LAVIN. Thank you, Professor.

Let me ask Representative Honda for his comments.

Representative HONDA. Thank you, Mr. Chairman. Let me, first,

apologize for being tardy. I know that the expertise here is very

global and it is very deep and profound, and I know that the witnesses have spent a lot of personal time getting here, so I just

wanted to let you know that I apologize for being late.

Having read the report that our Commission has put out, I am

struck by its even-handedness and its objectivity. That is why I

wanted to hear your testimony. Having heard some of the comments, some of the suggestions that Mr. Cohen had made, I guess

my general question to all of you would be, given the kinds of directions that Congress has taken up today with respect to China, and

Asia in general, and given our report, what are some of the other

suggestions you would make for legislators to develop policies toward China in the different arenas, everything from the rule of law

to business and the protection of intellectual property?

You made one statement, that we should be engaging ourselves

more, it sounds like, at the ground level in terms of us understanding what and how China does business in terms of contracts,

contract proposals, and that sort of thing.

Second, looking at a possibility which is highly improbable, by

the sense that I got, to looking at the courts in China to suspend

all death penalties until such time that they are all reviewed,

which will have a better outcome, historically.

Are there other kinds of comments and suggestions you could

make to Members of Congress and the Senate as to what direction

27

and what kinds of postures we should be taking in order to improve, and also to learn more?

Mr. COHEN. There is one over-arching factor no one has mentioned, but we are all aware of. Robert Burns once said, ‘‘Oh, would

the Lord, this gift He give us, to see ourselves as others see us.’’

We are worried about human rights and law reform in China. The

United States has generally stood for good things in the Chinese

mind. But current events, especially the struggle that the Congress

and the Executive Branch are in with respect to our government’s

treatment of people inside and outside this country—whether we

will adhere to due process, the rule of law, the rights of suspects,

the role of the court in independently reviewing arbitrary acts by

the Executive Branch—people in China are very much aware of

this if they have access to the Internet, the Voice of America, or

Radio Free Asia.

We cannot be hypocritical. We cannot say, ‘‘Do as we say, not as

we do.’’ What Americans stand for in this world has been eroded,

as many people realize. The most important thing Congress can do

is really strengthen, once again, our soft power. Make the right decisions about the rule of law in this country.

Representative HONDA. Thank you. That sort of reminds me of

the Scripture that says, ‘‘How is it that you are worried about the

splinter in my eye when you have a log in yours.’’

Any other comments? Yes?

Mr. XIAO. I, first, want to absolutely support what Professor

Cohen said. The U.S. Government’s human rights record and actions themselves speak much louder than words, and that will only

strengthen or weaken the power of the negotiations and dialogue

with China’s government.

So the one thing the U.S. Congress must do is hold the highest

standard of its domestic and foreign policy practices on the human

rights standard.

Second, regarding what I also suggest, I want to bring the Commission’s attention to another important document, ‘‘Race to the

Bottom: Corporate Complicity in Chinese Internet Censorship,’’

published by Human Rights Watch last month, which addressed

issues of U.S. companies—actually, global Internet companies, but

mainly U.S. companies—Google, Yahoo, Microsoft, and their role in

reinforcing the censorship mechanism within China. The previous

question was, ‘‘These U.S. companies, are they problems or solutions for human rights? ’’ For those Internet information companies,

they are both. They are a solution in terms of their being part of

the information revolution in China. They provide technology applications and commercial incentive. But they are also part of the

problem because, in order to get access to the Chinese market, they

have to cooperate to some degree and be complicit with the Chinese

censors.

This has serious implications not only to the Chinese netizens,

but to the world’s information freedom and privacy. Earlier this

year I was here at a different hearing, proposing the Code of Conduct approach for industry. I have been involved with multiple universities to draft the guiding principles for those industries and

had the dialogues and working group with the companies, trying to

push that collective action approach.

28

However, if you read the Human Rights Watch report, it is

important to stress the role of Congress, that legislation seems a

necessary tool in order to move these things forward, because companies have incentives, but also disincentives to stand up against

the Chinese Government. They need the protection and support

from the U.S. Government. That is where I think the Congress can

do something.

Let me say very specifically what is going to help. We talk about

the rule of law here. We talk about freedom of information. In

China, the main control of information is not by rule of law, it is

by self-censorship, by intimidation, I stress. So those companies,

they censor something on the Internet not because the Chinese

legal agencies gave them a list specifically explaining what needed

to be censored. It is because they hired staff. They come up with

a list of politically sensitive materials themselves under the guidance of the Chinese authorities. They over-censor as well, and they

do not have a legally accountable document for this process. That

is where the transparency and the rule of law works.

The Yahoo buyer often says, ‘‘Oh, we just follow Chinese law.’’

Actually, a lot of their censorship is not following any real documented Chinese law. If you force them to make that transparent,

it will protect these companies’ operating environment, but it

would also significantly actually change the censorship mechanism

within China, which to me will be of great benefit to the Chinese

netizens.

Representative HONDA. I appreciate your comment, Mr. Xiao. If

what you are saying is that if the U.S. companies did not follow

or interpret strictly what they thought might be law and they

moved forward as you suggest, what is the impact on the end users

if they exercise that level of flexibility from the central government

in increasing prisoners of conscience?

Mr. XIAO. The impact will be big. I cannot completely predict, because the censorship mechanisms are huge. It is not only about

censorship of certain words or search results.

But let us focus on the future words list. I am teaching in the

school. In the U.S. mainstream media, there are certain words,

seven or so, that you cannot really use. In the Chinese Internet,

the list is as long as more than 1,000 Chinese words that cannot

be used that are sensitive materials.

But where does that list come from? That list is not necessarily

directly transparently coming from any legal enforcement agencies

in China. Do they ever make it public? No. Even when they order

media or Internet companies to censor those words and contents,

do they give a written record? Most times, no. So they themselves

are afraid. Also, that is the mechanism of censorship, how that

works. They want to also leave deniability for themselves.

If we can push, just simply by the rule of law, corporate transparency, and social responsibility approach to force that as a transparent and legal process, I do not know if they can dare to show

all the things they censor. That is like reading the psychological

mind of what they are really afraid of.

Representative HONDA. So, if I may, what you are really saying

is, through the pipeline, it should be agnostic and allow the end

29

users to determine for themselves the shade and the content of

their words and their terminology.

Mr. XIAO. Right. The end users have much more creative ways

to express themselves. But from the censor’s point of view, it will

cause incredible changes for them in how to control people’s minds,

which again, you are empowering the users and protecting the

users, which, in the long term, is significant.

Mr. KAMM. Congressman Honda, just two quick recommendations addressing your question.

First of all, I have been coming here for many years, meeting

with members, testifying. My impression is that in the past, members of the House, Senators, whenever they went to China they

would raise cases, they would hand over lists, or when Chinese officials came here that would happen. My impression is that that is

much less common now. Just reading from press reports of recent

visits by important congressional delegations, I see a lot of interest

in intellectual property rights and the situation in Korea, all of

which is as it should be.

But I would strongly recommend that Members of Congress return to the previous practice of raising cases and handing over

lists. You have got an excellent database. You can generate lists

very quickly and very professionally, and of course we can help in

that respect, too.

A second recommendation. My foundation has put together a list

of more than 120 cities and States that have sister city and State

relationships in China. That is a very good channel to raise human

rights concerns with those places in China. When those cities host

or send delegations to China, again, they should raise cases and

concerns in those specific cities and provinces. In a couple of weeks

I will meet with a city that has a relationship with a city in China,

and they are willing, in fact, to do just that. So this is a specific

recommendation that I hope the Commission might follow up on.

Mr. COHEN. Could I just supplement that? Before you got here

today, Congressman Honda, I discussed, among other things, the

most pathetic case I know of, that of a blind, so called ‘‘barefoot

lawyer,’’ a legal activist who has been badly abused for over a year

in China in Linyi City, a city, if you can believe it, of 10 million

people. I had never heard of it before I met this man.

Linyi City authorities have not only committed horrible abuses

against him, but the reason he got involved was because of their

illegal compulsory sterilization and abortion program, violating

China’s central laws for birth control, et cetera. Thousands of people were abused. He was protesting this.

Now, a Linyi City delegation is coming here to D.C. next month

to take part in a beautiful program at the National Arboretum. Are

we going to let these people come here and manifest no recognition

of the abuses they are committing? I hope not.

Representative HONDA. Thank you.

Chairman HAGEL [presiding]. Representative Honda, thank you.

Any further questions?

[No response.]

Chairman HAGEL. Gentlemen of the panel, we are most grateful

for your helpful and insightful thoughts and analysis. You all have

30

been very helpful to this Commission, and in particular, to our

staff, over many years. We are grateful for that.

As I noted earlier, your testimony and other comments, as well

as the dialogue we have just had over the last hour and a half, will

all be included in the record. We may have follow-up questions. I

know we will continue our association with each of you, and we are

grateful for that also.

I also want to thank our staff for the good work they have done

in producing a rather significant report, as well as all of my colleagues, for their personal involvement. Thank you very much.

This hearing is adjourned.

[Whereupon, at 11:15 a.m. the hearing was adjourned.]

(31)

A P P E N D I X

32

PREPARED STATEMENTS

PREPARED STATEMENT OF JEROME A. COHEN

SEPTEMBER 20, 2006

Senator Hagel and Other Distinguished Members of this Commission,

All of us who focus on China’s progress, problems and prospects with respect to

human rights and the rule of law are grateful for this Commission’s continuing interest and cooperation. Hearings such as today’s and publications such as your justreleased 2006 Annual Report, which offers a comprehensive, balanced and accurate

account of recent developments, stimulate interest and spread knowledge about a

vast, complex and important subject that receives too little public attention in both

China and the United States. It would be wonderful if the 2006 Annual Report could

be published in China as well as this country.

Striking the right tone for today’s Hearing is a challenge. It has been over a year

since my last appearance here, and this has not been a good time in China for either

the rule of law or for human rights in the sense of political and religious freedoms,

protection against arbitrary criminal punishment, the development of fair and independent courts and the growth of a free and vigorous legal profession.

The picture is somewhat brighter if we focus on the role of law and legal institutions in promoting China’s remarkable economic progress. The new and long-awaited

Bankruptcy Law and the forthcoming Antitrust Law are recent examples of ongoing

legislative progress, although the temporary failure of the draft Property Law reminds us of the ideological as well as practical and technical challenges confronting

the National People’s Congress in seeking to regulate bitter rural and urban land

use disputes.

Yet even commercial laws need credible enforcement. China’s rapidly expanding

institutions for legal education and scholarly publication are gradually improving

the craft skills of the various branches of the legal profession. But the courts, the

China International Economic and Trade Arbitration Commission and most, but not

all, of the many municipal arbitration organizations continue to suffer from political

interference, corruption, ‘‘local protectionism’’ and the corroding effects of personal

ties compendiously described as ‘‘guanxi.’’ The impact of these serious institutional

shortcomings will become more apparent as China’s economy reaches a higher stage

of development. Moreover, not all recent economic rulemaking has been positive in

facilitating either foreign business cooperation with China or even unfettered distribution of purely commercial news.

I am sure that my colleagues at this Hearing will analyze the continuing and extensive denials in practice of the freedoms to receive information, speak, publish,

organize, assemble, demonstrate and worship that are enshrined, in principle, in

China’s Constitution. Here I will comment only on prospects for further legislative

reform of the administration of criminal justice and relevant activities of Chinese

courts and lawyers.

PROSPECTS FOR LEGISLATIVE REFORM OF THE CRIMINAL PROCESS

Chinese experts have long recognized that the 1996 Criminal Procedure Law

(CPL) is in need of revision, clarification and elaboration. Several impressive academic drafts of a new law have been circulating in official circles for some time. Yet

hopes that a new law might be enacted by the time of the Beijing Olympics in 2008

now appear to be receding. This new law was to accompany and implement China’s

long-awaited ratification of the International Covenant on Civil and Political Rights

(ICCPR), which the People’s Republic of China (PRC) signed in 1998. Ratification

of the ICCPR—and implementation in accordance with its terms—would have a

more profound effect on the PRC’s political, legal and social systems than the PRC’s

entry into the World Trade Organization has had upon its economy. Undoubtedly

for this reason, in what is plainly a very conservative climate for law reform, ICCPR

ratification also seems to be retreating to the back burner of a leadership that has

shown itself to be increasingly impervious to popular demands for due process in

law enforcement. At least in the short term, the Politburo has decided to meet the

spectre of social instability with harsh repression rather than legislative innovation.

This is unfortunate since a large number of Chinese criminal justice experts from

the judiciary, the procuracy, the defense bar, the Ministry of Justice, the Ministry

of Public Security, the NPC staff and academic life have been making impressive

efforts to develop a national consensus on a broad range of understandably contentious issues. Should suspects generally be granted bail during the investigation peVerDate 11-MAY-2000 10:20 Nov 06, 2006 Jkt 000000 PO 00000 Frm 00036 Fmt 6601 Sfmt 6621 U:\DOCS\30571.TXT CHINA1 PsN: CHINA1
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riod instead of languishing in detention as at present? Should they have a right to

keep silent and not incriminate themselves? Should a presumption of innocence be

confirmed and its implications spelled out? Should defense lawyers be allowed to

monitor police interrogations, conduct their own investigation prior to indictment

and freely meet detained clients? What steps should be adopted to make defense

lawyers available to accused who more often than not go unrepresented? What protections should be enacted to reduce the likelihood that suspects will be tortured

and to curb widespread overtime detentions? What measures should be prescribed

to strengthen the current insignificant legislative barriers to arbitrary search and

seizure? Should all illegally-obtained evidence be excluded from trials? Should plea

bargaining be fostered? Should prosecution witnesses be required to appear at trial

in order to make meaningful the existing right to cross-examine one’s accusers?

What kind of appellate review should replace the current perfunctory procedure?

None of these issues, which have long cried out for legislative resolution, is likely

to be dealt with by the NPC in the near future.

Nor does the NPC seem ready to abolish the notorious, supposedly ‘‘non-criminal,’’

administrative punishment of ‘‘reeducation through labor’’ (RETL), which allows the

police unilaterally to ship people off to three or even four years of confinement in

circumstances that are similar to those of the conventional criminal punishment of

‘‘reform through labor.’’ Two or three years ago, many Chinese reformers, even within the Ministry of Public Security (MPS), seemed confident that the NPC was about

to abolish or at least substantially revise RETL. There was widespread agreement

among the experts that its continuing existence undermines the significance of the

Criminal Procedure Law (CPL), since it allows the police to circumvent the protections of the CPL, including review by the procuracy and the courts, and nevertheless

to send people to long periods of what is, for all intents and purposes, criminal punishment. But the apparent opposition of the Central Party Political-Legal Committee and the leadership of the MPS, which believes that it continues to need this

weapon to help quell social unrest, has been sufficient to block adoption of the draft

legislation that now lies dormant in the NPC.

SUPREME COURT EFFORTS TO RESTRICT APPLICATION OF THE DEATH PENALTY

Although one cannot be optimistic about immediate prospects for further NPC reforms of the criminal process, this does not rule out the efforts that can be made

by other institutions, especially the Supreme People’s Court (SPC). Within its limited political power, the SPC has been trying to sustain the momentum for law reform. Early this year, it made public its Second Five-Year Reform Program for the

People’s Courts, which sets forth an ambitious 50-goal agenda for court improvements of various kinds. It has more recently announced thirteen new research

projects for implementation. Experience suggests caution before equating breathless

pronouncements with actual accomplishments. Nevertheless, the most active law reform currently under way in the criminal justice field is the SPC’s energetic effort

to dramatically improve the present inadequate procedures for trying and reviewing

death penalty cases.

The SPC recently announced its determination to retrieve from the provincial

high courts the responsibility the SPC had granted them for final review of all death

penalty cases except for those involving crimes of corruption and of endangering

state security, which the SPC has always retained. For practical rather than political reasons, implementation of this determination has proved to be a slow and

painstaking task, largely because of the difficulty of recruiting the 300 to 400 new

SPC judges who are deemed to be necessary to do the job. This estimate offers some

clue to the huge, but unconfirmed, number of capital prosecutions brought by the

procuracy each year. The SPC has reportedly recruited over 100 of the newly needed

contingent from the lower courts. In order to speed completion of the task, it has

also begun to recruit Chinese law professors and lawyers to serve on its staff. Although this had occasionally been done in the past, the current attempt to recruit

broadly outside the career judiciary bodes well for the future, if it proves successful.

Because the SPC is not expected to grant final review to the retrieved categories

of capital cases until 2007, that responsibility will continue to rest with the high

courts until then. Although some lawyers have urged the SPC to declare a moratorium on final reviews until it is ready to conduct them, the SPC has not responded

to this proposal and is unlikely to do so. Even the SPC, which to its credit frequently adopts a dynamic view of its authority, would be hard-pressed to take such

a bold step in the absence of new legislation or a Politburo instruction, neither of

which is anticipated. This is especially the case since the enactment, just weeks ago,

of a Supervision Law that strengthens the controls of the standing committees of

the people’s congresses at all levels over government, court and procuracy activities.

34

When this law goes into effect on January 1, 2007, the SPC will be required to file

with the NPC’s Standing Committee each new interpretation it issues, knowing that

the Standing Committee has the power to amend its interpretation.

What the SPC has done is to move ahead to improve procedures at the high court

level. Since July 1, all appeals of death penalty cases require a formal court hearing—though not necessarily a public hearing-rather than merely what was often

only a cursory review of the case file and the briefs submitted by the procuracy and

defense lawyers.

Moreover, some SPC experts have recognized that not only are the appellate and

final review processes in need of improvement, but also the trial itself. Capital trials

inevitably suffer from the same deficiencies as other criminal trials in China, only

the stakes are higher. In the absence of specific authorizing legislation, it is unclear

how far the SPC can go in mandating more accurate and fairer procedures in capital

trials. Yet if it does carry out far-reaching improvements, this would not be the first

time it has tread upon the NPC’s turf. Thus far, in order to guide trial courts, the

SPC has reportedly drafted ‘‘standards for the application of the death penalty in

certain cases,‘‘ namely, for crimes of murder, injury causing death, drug trafficking

and robbery, which account for the bulk of PRC death sentences. These standards,

which have not been made public, apparently call for the imposition of capital punishment only in cases in which the new and detailed conditions that they set forth

have been met. Of course, law reformers will be quick to advocate that any new trial

and appellate procedural guaranties in capital cases be extended to the processing

of other serious crimes.

DISGRACEFUL HANDLING OF SOME RECENT CRIMINAL CASES

Unfortunately, the SPC’s encouraging activism with respect to death penalty reform has not been matched by equal vigilance in supervising the conduct of lower

courts in individual criminal cases. This past year has witnessed a series of outrageous criminal convictions in cases that have been widely publicized outside

China despite being shrouded in secrecy within the country. I have served as an

informal consultant in two of these cases. In one, the blind legal activist Chen

Guangcheng was sentenced to four years and three months in prison by the Yinan

County Basic Court in Linyi City, Shandong Province, allegedly for instigating a

mob to block a road and for inflicting damage on public property. The detention procedures and trial in this case were a travesty of justice by any standards. In the

other case, Zhao Yan, a Chinese staff member of the Beijing bureau of the New

York Times, was sentenced to three years in prison allegedly for committing criminal fraud against a friend, again after detention and trial procedures that shamed

a great nation, but this time not in a poor, rural Shandong county but in Beijing,

the prosperous and impressive political and educational heart of the country.

These cases are merely the tip of a criminal process iceberg that is largely concealed from the scrutiny of both Chinese and foreigners and that functions with cynical disdain for the country’s criminal justice laws and international human rights

standards. Court procedures are sometimes a farce, but pre-trial police misconduct

is frequently worse. The Ministry of Public Security in practice often condones the

misbehavior of its police, who increasingly retain thugs to carry out some of their

most lawless acts. And the Ministry of State Security, China’s version of the former

Soviet KGB, is even more a law unto itself because of the even greater secrecy of

its operations.

At the national level, the Supreme People’s Procuracy, the supposed ‘‘watchdog of

legality’’ in Communist systems, continues to issue rules designed to curb actions

such as illegal extended detentions of suspects by investigating officials. Yet in practice, local procuracies are often politically helpless or uninterested in implementing

such rules. Further, in pursuing their own responsibilities for the investigation of

corruption cases, local procuracies themselves frequently disregard prescribed procedures. Thus far, efforts by the NPC and local people’s congresses to ferret out law

enforcement abuses have not proved effective and in some cases, have actually

served as cover for illicit interference with law enforcement. Whether the recently

promulgated Supervision Law, which strengthens the powers of the standing committees of people’s congresses to review the operation of various government agencies including the courts, will yield better results remains to be seen.

THE COMMUNIST PARTY’S PARTICIPATION IN CRIMINAL INVESTIGATION

One of the most prominent and interesting features of recent PRC criminal justice

is the increasing visibility of the Party’s own investigative and coercive apparatus.

To be sure, the Party, through its political-legal committees and through organizations within every law enforcement agency and court, controls the operations of offiVerDate 11-MAY-2000 10:20 Nov 06, 2006 Jkt 000000 PO 00000 Frm 00038 Fmt 6601 Sfmt 6621 U:\DOCS\30571.TXT CHINA1 PsN: CHINA1
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cial law enforcement at every level of government. But it also plays a major role

itself in investigating and confining suspect Party members in important and complex cases before their processing by the official law enforcement agencies even begins. The Party’s 70 million members, and sometimes others as well, are subject to

informal, but effective and often long-term compulsory detention by one of the Party’s ubiquitous discipline and inspection commissions. This process is generally referred to as ‘‘shuanggui,’’ which means ‘‘double regulation’’ or ‘‘the two stipulations,’’

because investigative targets are ordered to report at a stipulated time and place.

Especially in major cases of corruption, shuanggui investigation/detention often

precedes both the formal imposition of Party disciplinary sanctions against members

who appear to have violated Party rules and the transfer of suspects to the law enforcement agencies if they appear to have violated the Criminal Law. Because

shuanggui suspects are often relatively important Party figures, they are usually

confined in more comfortable quarters than a regular police detention cell. Nevertheless, although recent Party documents purport to assure shuanggui detainees of

humane treatment, guaranteeing them against abuses against their person and

property and even authorizing contacts with their family, if their captors believe

this would not adversely affect the investigation, they are generally held incommunicado and denied some of the protections to which criminal suspects are entitled

at least in principle. Thus they may be detained for as long as the Party discipline

and inspection commission thinks appropriate, have no right to the advice of counsel,

and have no opportunity for the procuracy to review the basis for their detention.

If the suspect is turned over for criminal investigation, these criminal procedure

rights should come into play, but by then it is usually too late for them significantly

to benefit the suspect even if they are observed in practice. Consequently, as suspects, Party members—the nation’s elite—have even fewer due process rights than

the masses!

NEW RESTRAINTS UPON LAWYERS

My last year’s testimony to the Commission emphasized the many restrictions imposed on China’s criminal defense lawyers during both the investigation and trial

stages and the threat of criminal prosecution that hangs over any lawyer who presents too vigorous a challenge to the facts alleged by the procuracy. The situation

is no better this year. Indeed, in several respects it has deteriorated.

During the past year police or their hired thugs have often beaten lawyers for controversial defendants in order to prevent the lawyers’ access to their clients or to

the courts. The courageous human rights lawyer Gao Zhisheng was deprived of his

license to practice law and is now being detained for unspecified ‘‘criminal activities.’’ His law firm has been suspended from practice for one year. Police illegally

prohibit his family from leaving their home or receiving visitors.

Lawless police blockades, long a feature of PRC repression of political dissidents,

seem more numerous at present than at any time I can recall and are now frequently imposed on lawyers and other legal activists as well as their clients. A large

group of government officials and thugs have blockaded the farm house of blind

‘‘barefoot lawyer’’ Chen Guangcheng since August 11 of last year and have maintained the blockade against his wife even after Chen was illegally taken into custody in March of this year. In June, I was invited to dinner at the apartment of

former Shanghai lawyer Zheng Enchong, who had lost his license because of his

dogged defense of the real estate rights of Shanghai residents and who had just

completed a three-year prison sentence for allegedly revealing ‘‘state secrets’’ about

a public protest to an American-based human rights organization. However, a group

of policemen, who could cite no legal authority and would give no reasons, barred

my visit. When repeatedly asked to justify their interference, they merely said: ‘‘We

are police.’’

Plainly, contacts between lawyers and the media, especially the foreign media,

have become increasingly sensitive. Defense lawyers in ‘‘state secrets’’ cases have

been warned not to inform the press, or even the defendant’s family or legal consultants, of developments in the case, even though this may inhibit an effective defense.

What triggered the persecution of ‘‘barefoot lawyer’’ Chen Guangcheng was his role

in the Internet report on Linyi’s illegal birth control measures posted by several Beijing legal scholars and the long dispatches filed by foreign journalists about the situation, including a front-page story in the Washington Post. Two of the scholars who

filed the Internet report were subsequently threatened with being sacked by their

law schools and have also suffered other sanctions. The prosecution of former lawyer

Zheng Enchong demonstrated how easy it is for someone who has contacts with

foreign reporters to be convicted of illegally transmitting ‘‘state secrets’’ or mere ‘‘intelligence’’ to a foreign entity. What constitutes a ‘‘state secret’’ or ‘‘intelligence’’

36

remains a fluid concept in the PRC and is subject to arbitrary, even retroactive,

interpretation by the authorities.

Equally sensitive to the regime are the contacts that public-interest lawyers have

been cultivating with aggrieved groups of citizens. Perhaps the most recent adverse

development involving lawyers was the issuance on March 20, by the Executive

Council of the All China Lawyers Association, of a ‘‘Guiding Opinion on Lawyers’

Handling of Mass Cases.’’ This document, evidently the product of pressure from the

Ministry of Justice, which controls the legal profession, is applicable not only to

criminal cases but also to all other instances in which a lawyer is asked to represent

ten or more people in the same case. It has created an uproar among activist lawyers and law professors since it substantially restricts the conduct of lawyers in

such cases and vitiates the loyalty to their clients that has been developing into one

of the hallmarks of the legal profession in China.

The Guiding Opinion’s most sinister provisions require lawyers, after accepting a

mass case, promptly to ‘‘discuss the case fully’’ with ‘‘the relevant judicial departments,’’ ‘‘honestly report the situation’’ to them and ‘‘actively assist the judicial

organs to clarify the facts.’’ In this context the terms ‘‘judicial departments’’ and

‘‘judicial organs’’ plainly refer to the law enforcement agencies, not only to the procuracy and the courts but also to the police! Lawyers are also required to report on

the situation to other government agencies concerned, including the ‘‘judicial administrative organ in charge,’’ i.e., the local justice bureau under the Ministry of Justice.

The Guiding Opinion emphasizes that the lawyer has a duty to assist the government as well as his client in such cases and to mediate and promote solutions that

are acceptable to all. The Guiding Opinion also prohibits lawyers from encouraging

or participating in large group efforts peacefully to use letters and visits to petition

government agencies to resolve problems. Yet it authorizes lawyers to take part in

such efforts if invited to do so by relevant government agencies. The Guiding Opinion deserves detailed analysis, but it obviously seeks to convert lawyers into instruments of law enforcement and other government institutions to the prejudice of the

interests of their clients in mass cases. This represents a giant step backward to

the 1980s, when China’s newly revived lawyers were deemed to be merely ‘‘state

legal workers’’ rather than the independent representatives of their clients.

THE IMMEDIATE FUTURE

This is a gloomy time in China for the administration of criminal justice and related legislative and judicial reform. The NPC seems to be frozen in this area, and

the only significant systemic reform—the SPC’s effort to improve procedures in

death penalty cases—is moving slowly and toward an uncertain outcome. In too

many cases, the police operate with reckless disregard for existing criminal procedures, and in making their decisions courts are the helpless tool of Party and government leaders and the objects of other distorting influences. Although the nation’s

leaders continue to use the abstract rhetoric of the ‘‘rule of law,’’ they increasingly

emphasize that the Western-style laws, institutions and procedures that the Party

has introduced since 1978 are not to be applied in a Western manner. They want

the legal system to repress the rising tide of social unrest generated by China’s

rapid success rather than effectively process the new disputes and grievances that

are being brought to it for solution. This in itself has added to social instability. The

failure of the highly touted ‘‘socialist rule of law’’ to meet popular needs and its frequent use as an instrument of repression have fueled feelings of frustration that are

being transformed into what has accurately been called ‘‘rightful resistance.’’

Are there any grounds for optimism? Although the engineer-dominated Politburo

Standing Committee appears to have little appreciation of a legal system’s potential

contribution to social engineering and to the resolution of social tensions, below the

top leadership level a younger and more sophisticated generation of officials, legislative staff, scholars, judges, prosecutors and lawyers is actively engaged in field research and practical experiments relating to reform of the justice system. Moreover,

ideas of due process and fair adjudication appear to be making inroads into the

Party itself, as demonstrated by the continuing quiet efforts to improve the conditions of shuanggui detainees and to ‘‘judicialize’’ Party disciplinary tribunals.

A year from now, after the 17th Party Congress, at which the Hu Jintao-Wen

Jiabao leadership is expected to be firmly entrenched for the next five years, we will

be able to form a clearer picture of the prospects for reform. Optimists already claim

to see signs, or at least hear talk, of bringing officials educated in law into many

higher posts within the Party and government, including the influential provincial

Party discipline and inspection commissions. It would also be desirable to place lawVerDate 11-MAY-2000 10:20 Nov 06, 2006 Jkt 000000 PO 00000 Frm 00040 Fmt 6601 Sfmt 6621 U:\DOCS\30571.TXT CHINA1 PsN: CHINA1
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trained officials in charge of all the country’s law enforcement agencies at every

level.

The most obvious indication of the new leadership’s intentions regarding the legal

system will be personnel changes within the Politburo and its Standing Committee.

The admission to the Politburo of Minister of Public Security Zhou Yongkang at the

16th Party Congress, making him the sole government representative of the entire

legal system at the pinnacle of power, has not substantially benefited criminal justice reform. It is rumored that next year Minister Zhou will be promoted to membership in the Politburo Standing Committee, perhaps replacing Luo Gan as the head

of the Central Party Political-Legal Committee that leads the operations of the

courts, the procuracy, the Ministry of Justice, and the law enforcement ministries.

Some even believe that he will also become head of the Central Party Discipline Inspection Committee. How he would exercise such vast power is unclear, but it would

be comforting if someone with greater knowledge and experience in legal affairs,

and with greater zest for strengthening the rule of law, were appointed to the Politburo. It was disappointing that, at the previous Party Congress, SPC President Xiao

Yang was not elevated. A seat in the Politburo would give him some of the political

clout required to implement his ambitious plans. An earlier SPC President, Ren

Jianxin, who had decades of legal experience, not only sat in the Politburo but also

served as head of the Central Party Political-Legal Committee. But perhaps a leadership that wants to keep ‘‘politics in command’’ does not regard that as a desirable

precedent.

Such personnel appointments will have a crucial impact upon whether the PRC

decides to ratify the ICCPR prior to the 2008 Olympics, adopt a new Criminal Procedure Law, curb police lawlessness and remove the restrictions that hamstring

defense lawyers and other legal activists.

WHAT SHOULD WE DO?

Understandably, China has always gone its own way, and outsiders who have

sought to influence its course have had much to be modest about. Yet China has

never been more open to international cooperation in all fields than today, and the

PRC’s legal experts, in and out of government, genuinely welcome virtually all

opportunities to work with counterparts from abroad. International organizations,

foreign governments and charitable foundations, non-governmental organizations,

universities and lawyers’ groups from many countries have already helped to launch

numerous joint law reform projects in China. Nevertheless, this impressive effort

has merely scratched the surface of the need and revealed the depth, breadth and

long-term dimensions of the opportunity.

My hope is that Congress and the executive branch will substantially increase existing U.S. Government funding for cooperation with the PRC in rule of law and

human rights projects. Moreover, the scope of this funding should be expanded to

support research into important problems of criminal justice and the development

of legal institutions in China. Continuing government sponsorship of training, conferences and exchanges is vital. Yet, unless such activities rest upon an adequate

research foundation, their impact will be limited. For example, everyone recognizes

that, if China is ever to enjoy a genuine rule of law, the most fundamental reform

required is the development of a fair and independent court system. China’s neighbors—Japan, Taiwan and South Korea—have made great strides in this respect despite the fact that they share China’s Confucian-Buddhist political-legal culture.

How did they do it? And why did previous efforts to establish a fair and independent

judiciary fail in China? This type of research deserves the highest priority. Yet it

has thus far found no U.S. Government support.

Finally, no assessment of prospects for law reform in China should overlook the

work on Chinese justice published by relevant United Nations agencies, the reports

of international human rights NGOs, the studies published by various governments

including our own and the scholarship of the academic community. This vast literature not only enhances our knowledge of a complex and relatively non-transparent subject but also stimulates further progress by the PRC. The report on

torture in China issued last spring by Professor Manfred Nowak of Austria, Special

Rapporteur of the U.N. High Commissioner for Human Rights, goes far beyond a

narrow focus on torture and should be required reading for China’s leaders as well

as all others concerned. The largely unnoticed but important decisions of the U.N.

Working Group on Arbitrary Detention, which has repeatedly condemned PRC practices in a long series of sad cases, is another example of U.N. action that deserves

greater circulation. The 2006 Annual Report released today by this Commission is

a splendid example of how helpful a foreign government’s report can be to China’s

progress.

38

I strongly urge that the U.S. Government devote greater financial support to the

dissemination of all such material in China, where, largely because of well-known

obstacles to communication, even judges, prosecutors, legal officials, lawyers and

scholars often do not know about events, incidents and developments involving the

administration of justice in their own country. It is shocking, for example, that

many Chinese legal experts who would be appalled at their government’s persecution of blind ‘‘barefoot’’ lawyer Chen Guangcheng have never heard of this case. This

suggests that agencies such as Voice of America and Radio Free Asia still have a

long way to go. Yet it is possible, even in today’s controlled media environment in

China, for Chinese language versions of such helpful material to circulate.

PREPARED STATEMENT OF JOHN KAMM

SEPTEMBER 20, 2006

RECENT DEVELOPMENTS IN DUI HUA’S DIALOGUE ON HUMAN RIGHTS WITH THE

CHINESE GOVERNMENT

Chairman Hagel, Distinguished Members of the Congressional-Executive Commission on China:

In May 1990, I intervened, for the first time, on behalf of a political prisoner in

China, raising the name of a student leader jailed during the spring 1989 political

disturbances, at a banquet in Hong Kong with a Chinese minister. Later that

month, I gave my first testimony to Congress, addressing the question of human

rights and China’s Most Favored Nation status (MFN). I have come back to Congress several times over the last 16 years to report on the progress of the dialogue

with the Chinese government being conducted by me and my foundation, a dialogue

that has seen me make approximately 100 trips to Chinese cities—75 to Beijing—

to discuss cases, exchange information, visit prisons, and attend trials. Today I welcome the opportunity of briefing the Commission on recent developments.

MINISTRY OF JUSTICE STOPS ACCEPTING PRISONER LISTS

The framework for Dui Hua’s dialogue with the Chinese government was established in November 1991 at a meeting in Beijing’s Great Hall of the People between

me and a member of the Standing Committee of the Political Bureau of the Chinese

Communist Party, one of China’s most senior leaders. From the outset, it was clear

that an important focus of this dialogue would be prisoners. The senior leader stated

that if a foreigner came to China, pounded the table, and demanded the release of

a prisoner, the Chinese government would not respond. But if a foreigner came as

a friend and showed respect, providing information on prisoners, indeed releasing

them early, ‘‘was no big deal.’’

After this meeting, I began to visit prisons. The Ministry of Justice, which runs

China’s 700 prisons and 300 re-education through labor camps, began accepting my

requests for information on prisoners in the form of lists of 20–25 names.

In April 1992 I was given an audience with a vice minister of the Ministry of Justice. I was advised that a decision had been made to accept any inquiries about prisoners that I might have, and to answer the inquiries to the best of the ministry’s

ability. I was invited to ask about any prisoner, and I asked about Wei Jingsheng.

Then and thereafter I asked about many others.

During the first half of the 1990s, my dialogue with the Chinese government went

smoothly. Getting information on prisoners was commonplace, and there were many

releases of high-profile prisoners. At the time, Beijing was worried about losing its

MFN trade status. In 1994, President Clinton de-linked China’s MFN from its

human rights record. Chinese officials had said that if the United States reduced

its pressure, China would respond with human rights moves. I decided to take the

Chinese government up on its offer. In December 1994, the Ministry of Justice for

the first time sent a written reply to a prisoner list by fax, standard practice for

the next 10 years. In January 1995, the State Council and the Ministry of Justice

agreed to receive from me four lists of 25 names, one each quarter, in calendar year

1995.

In May 1995, the Chinese government suspended the prisoner information project

because the State Department had granted a visa to Taiwan President Lee Tenghui.

The Ministry of Justice continued to receive my lists, but contrary to what it had

promised it was not willing to provide information. I turned to the U.S. Congress

for help, and beginning in 1996 more than three dozen members of the House and

the Senate, several of whom are distinguished members of this Commission, wrote

letters to the Chinese government asking it to honor the commitment that had been

39

made. In 1997, Beijing badly wanted a state visit to the United States for Jiang

Zemin. In October 1997, President Jiang made the visit, and in talks with President

Clinton agreed to resume providing me with information about prisoners. The agreement was listed as an achievement of the summit in the statement issued by the

White House, and was singled out in a Senate Resolution on the Jiang visit introduced by Senator Feinstein, a distinguished member of this Commission, and Chairman Hagel.

By early 1999, the Ministry of Justice had, for the most part, finished responding

to 1995’s list of 100 names, many of whom had been obscure prisoners hardly known

to the outside world. Based on information provided on 70 percent of the names,

more than half of the prisoners on the list had been granted early release or sentence reductions after the list’s submission. Based on interviews with released prisoners and members of their families, I have no doubt that ‘‘the list of 100’’ played

a significant role in securing early release and better treatment for dozens of people

who would otherwise have been forgotten.

In April 1999, the State Department introduced a resolution criticizing China at

the annual meeting of the U.N. Commission on Human Rights in Geneva. The Ministry of Justice again suspended providing information about prisoners to me. The

next month, NATO warplanes bombed the Chinese embassy in Belgrade, and Beijing suspended the official dialogue on human rights with the United States.

The following year (2000), the Chinese government badly wanted to secure Permanent Normal Trade Relations (PNTR). It silently acquiesced in the establishment of

this Commission as part of the effort to get PNTR. The Ministry of Justice began

allowing me back into prisons and once more provided information on prisoners. By

now, Dui Hua had been established, and we were engaged in a worldwide, open

source search for the names of individuals detained in political cases. Our data base

had been set up and our lists were becoming longer and more detailed. (A recent

breakdown of our data base is appended to this testimony.) The information we received from the Ministry of Justice, which we shared with this Commission and

with NGOs and governments engaged in rights dialogues, was increasingly valuable

to an understanding of how China’s penal system treated prisoners convicted in

political cases.

In late July 2001, Secretary of State Colin Powell visited Beijing to help repair

relations badly frayed by the EP3 incident. Agreement was reached to resume the

official rights dialogue that had been suspended in May 1999 in the wake of the

NATO bombing of the Chinese embassy in Belgrade. Secretary Powell tasked the

newly confirmed Assistant Secretary of State for Democracy, Human Rights and

Labor Lorne Craner with preparing for a round of the dialogue to be held in Beijing.

Mr. Craner turned to Dui Hua and other NGOs to assemble a list of names of individuals detained in political cases (Dui Hua contributed the names of 50

‘‘counterrevolutionaries’’), and this list of 75 names was handed to China’s Ministry

of Foreign Affairs in the late summer of 2001.

After the terrorist attacks of September 11, 2001, the Chinese government made

a strategic decision to side with the United States and to seek ways to exploit the

new international environment to improve relations with the United States and

achieve other foreign policy goals. As part of this decision, detailed information

would be given on prisoners, and those identified by the United States as important

cases would be granted early release. In October 2001, a session of the official

human rights dialogue was held in Washington. Detailed information was provided

on 68 of the 75 names on the list. Early releases of important prisoners began in

January 2002. The first to benefit was the Tibetan ethnomusicologist Ngawang

Choephel.

In the ensuing months, nearly all of the well-known prisoners on Mr. Craner’s

list—including Jigme Sangpo, Xu Wenli, Wang Youcai, Ngawang Sangdrol, and finally Rebiya Kadeer—were released from prison. Several were allowed to leave

China for medical treatment. (I made two trips to Lhasa, accompanied by officials

of the Ministry of Foreign Affairs, to verify that Tibetan prisoners wanted to leave

for the United States.) Not only were well-known prisoners released. I recently

looked at what had happened to the 60 people who were actually serving prison sentences in September 2001 when the Chinese response was being prepared. I am attaching a brief analysis to this testimony. Of the sixty, 27 have been granted early

release, and four have been given sentence reductions. In other words, if you were

on the list, you had a better than 50 percent chance of being released or given a

sentence reduction in the ensuing five years. That’s three times better than the rate

of early release recorded for political prisoners that we know of who were serving

sentences as of September 2001 but who weren’t on Craner’s list. (Unfortunately,

the rate of parole and sentence reduction for political prisoners, even those on important lists, remains well below the rate for ordinary prisoners.)

40

How was this result achieved? Good cooperation with our Chinese counterparts,

coordination with allied governments, steady follow-up (the names appeared on several subsequent lists handed over by Dui Hua, the United States and other governments), linking better treatment of prisoners to ‘‘rule of law’’ issues, and always

emphasizing the need for human rights improvements, as measured in concrete

terms, if US-China relations are to improve.

A little known example of how the Craner list was used to address a systemic

issue is the two rounds of talks on sentence reduction and parole for prisoners serving sentences for counterrevolution and endangering state security that were organized by the State Department and the Ministry of Foreign Affairs in February 2004

and August 2005. In these talks, ably led by the State Department’s Bureau of Democracy, Human Rights and Labor and China’s Supreme People’s Court, Beijing affirmed that individuals serving sentences for counterrevolution and endangering

state security enjoy the same opportunities for sentence reduction and parole as

other prisoners. National reviews of sentence reduction and parole cases had begun

on a trial basis in 2003 and they were expanded in 2004 and 2005. In 2005 Dui

Hua heard reports that at the local level a policy of non-discrimination toward those

convicted of counterrevolution and endangering state security was being followed.

In January 2005, the Ministry of Foreign Affairs took the extraordinary step of emailing Dui Hua information on a large group of such prisoners, most of whose

names were unknown, who had in fact been granted sentence reduction or parole

in recent months.

My last meeting with the Ministry of Justice took place in April 2005. Senior officials of the Prison Administration Bureau and the Department of Judicial Assistance and International Affairs received me in the Minister’s Conference Room. It

was an unusually friendly meeting. We discussed the possibility of Dui Hua hosting

a delegation from the Prison Administration Bureau. I was asked to prepare a detailed proposal for the Ministry’s consideration. I handed over a short prisoner list.

The senior representative of the Prison Administration Bureau promised that he

would personally look into the cases. I was told that I would receive the desired information through the usual channel, that is, by fax or e-mail to my San Francisco

office. Weeks and then months went by without Dui Hua receiving the information.

I visited Beijing in October 2005 and brought with me a detailed proposal on the

delegation and a new prisoner list. I called the International Affairs Department of

the Justice Ministry to schedule a meeting and was told that I was welcome ‘‘as an

old friend’’ to visit the ministry but only if I agreed to three conditions: There would

be no discussion of ‘‘human rights dialogues,’’ the names of ‘‘criminals’’ (i.e. prisoners) could not be raised during the meeting, and a prisoner list could not be handed over. I refused to agree to these conditions, and protested that the ministry’s new

position was contrary to longstanding practice reaffirmed as recently as April. It ran

counter to China’s policies of encouraging transparency and conducting dialogues

based on equality and mutual respect.

I sought the assistance of China’s Ministry of Foreign Affairs. I discussed the situation with officials of the Departments of North American and Oceanian Affairs and

International Organizations and Conferences, the U.N. missions in New York and

Geneva, and the Chinese embassy in Washington. I am grateful for the work of several Chinese diplomats on this matter. I have recently been told that there is nothing personal in the decision to stop providing information on prisoners and that I

am welcome to continue visiting China.

In February 2006, a senior Ministry of Foreign Affairs official advised me that I

would get ‘‘good news’’ from the Ministry of Justice soon. I received information on

a few prisoners channeled through the Ministry of Foreign Affairs. I was further

heartened when President Hu Jintao visited Washington on April 20 and announced

that China was prepared to ‘‘enhance’’ its dialogues and exchanges with the U.S.

side in the area of human rights.

On August 24, 2006, I met with Ministry of Foreign Affairs officials in Beijing.

I was informed that the Ministry of Justice had not changed its position. I was told

that ‘‘people are fed up’’ with receiving prisoner lists from foreigners. Such lists represented attempts to interfere in China’s internal affairs and were disrespectful of

China’s independent judiciary. Foreign countries have no right to submit them, and

China is under no obligation to reply to them. When I sought an explanation for

the Ministry of Justice’s decision to stop accepting lists and discussing cases, I was

told that the Ministry of Justice is ‘‘unhappy and disappointed over how the information has been used.’’ Specifically, I was told that the impression had been given

that prisoners were released early as a result of foreign pressure instead of as a

result of ‘‘the normal workings of the Chinese legal system.’’

At the meeting I asked the Ministry of Foreign Affairs to try one more time to

convince the Ministry of Justice to change its position. I requested an update on a

41

set of nine prisoners, all of whom the Ministry of Justice had provided written information on, all longer than three years ago.

On September 14, 2006, I received the Ministry of Foreign Affairs’ formal response: As the bilateral dialogue between the United States and China has not been

resumed, discussion or exchange of information on individual cases is not appropriate. I was also reminded that the basic principle for the rule of law is independence of judicial organs, a principle the Ministry of Foreign Affairs and, it hopes, ‘‘our

American friends’’ will observe.

DUI HUA RESPONDS

Since Dui Hua cannot accept the Ministry of Justice’s new policy of ‘‘three no’s’’—

no mention of human rights dialogues, no raising the cases of prisoners, and no prisoner lists—the foundation will no longer seek meetings with the Ministry of Justice

in Beijing. The question will be revisited if and when the official human rights dialogue between the United States and China resumes.

Dui Hua holds that the Ministry of Justice’s ‘‘three no’s’’ policy overturns many

years of cooperation that have enjoyed the support of leaders and senior officials of

both the United States and China. The Ministry’s behavior toward Dui Hua does

not square with the policy of conducting dialogues based on equality and mutual respect. It is a setback for the principles of transparency and open governance, and

calls into question President Hu Jintao’s April 20 promise to enhance dialogue and

exchanges on human rights between the two sides.

Dui Hua points out that the foundation is an international human rights organization that enjoys non-governmental consultative status with the Human Rights

Council of the United Nations, a status that we would not enjoy had China chosen

to oppose it. Although it actively supports dialogue on human rights between the

Chinese and American governments (as it does the eight other official dialogues),

Dui Hua’s own dialogue is not dependent on the US-China dialogue and has never

been viewed in such terms. On many occasions during long periods when the official

dialogue was suspended (e.g. calendar year 2000), Dui Hua’s own programs with the

Ministry of Justice were plentiful and productive. If such things as prison visits and

exchange of information on cases were appropriate then, why are they inappropriate

now?

Dui Hua agrees that the basic principle of rule of law is independence of the judicial organs, but we fail to see how asking questions about cases represents interference. Underpinning the principle of independence is transparency and openness

of the legal system. ‘‘In speaking about laws, proceed from an examination of cases

‘‘yi an shuo fa,’’ is a favorite saying of members of China’s judiciary, and in its attempt to understand China’s security, legal, and prison policies and systems Dui

Hua is doing just that.

As for the question of how the information has been used, Dui Hua has reviewed

all written communications from the Ministry of Justice since 1994, as well as the

notes of meetings since 1991. It cannot find language asking that information be

kept confidential, nor setting any other limits on how the information was to be

used. On the contrary, there are several expressions of mutual esteem and desire

for further cooperation. Prior to August 24, 2006, Dui Hua had never received a

complaint from a Chinese official over how the information on prisoners had been

used.

It is true that the impression has been given that prisoners who are the focus

of international concern are more likely to receive better treatment than those who

are not the focus of concern (a situation hardly unique to China), but the experience

of the last 16 years tells me that interventions like my 1995 list and Mr. Craner’s

2001 list have in fact prompted better treatment for many prisoners. That has been

the case-until now, at least. Dui Hua is concerned that prisoners who manage to

get information on their situations to the outside world-and their families- may be

suffering consequences, including delays or cancellations of sentence reductions,

denial of family visits and the like.

A WINDOW CLOSES, A WINDOW OPENS?

During the period of difficulties with the Ministry of Justice, Dui Hua has enjoyed

good relations with Chinese courts, including the Supreme People’s Court. The court

has arranged for wide-ranging discussions with senior judges and staff of the court

on such topics as sentencing and application of the death penalty. (Interestingly, individual cases were discussed and sometimes raised by the Chinese side. No judge

has ever accused Dui Hua of ‘‘interference’’ for asking details of a case.) It made

arrangements for Dui Hua to begin attending Chinese trials. We have been encouraged by the willingness of the courts to be more open and receptive to foreigners

42

and are looking forward to finding more ways to cooperate with both the court system and with China’s procurators.

Of special interest to Dui Hua is the question of the availability of verdicts. Obviously, if verdicts become more widely available, the work of promoting transparency

(and finding out about cases) would be greatly enhanced. At present, verdicts in

many cases-including ‘‘sensitive ones’’ like those involving capital punishment, state

secrets and juveniles-are not made available by courts and are even being denied

to the families of those sentenced. The determination of what is ‘‘sensitive,’’ especially with regard to state security cases, is often in the hands of the police who

make the arrest. The present system of withholding verdicts from the public is the

subject of much debate in China, and there have been a few local experiments at

making the publication and dissemination of verdicts less restrictive.

I was especially disappointed to read, therefore, that the Chinese government has

promulgated new rules forbidding the release by courts of news related to ‘‘state

secrets, business secrets and personal information, including in cases related to juveniles and those that are not tried publicly.’’ The rules, which have yet to be published, set up a new system of court spokesmen and stipulate punishment for court

officials who leak information, which covers ‘‘any document passing through upper

level and lower level courts.’’ This presumably includes verdicts, but Dui Hua is

seeking clarification.

These rules come on the heels of other measures to restrict the operations of foreign news media and punish domestic media for unauthorized reporting on natural

disasters and mass incidents. They are of a piece with the decision to shut down

the prisoner information project with Dui Hua, and other actions the Chinese government has taken like harassing and jailing journalists, and closing down publications, web sites and blogs. I will briefly discuss the reasons for the ongoing

clampdown in my oral remarks and will be happy to explore it further during the

discussion period following our testimonies.

RECOMMENDATIONS

I would like to conclude this testimony with a few recommendations:

1. When and if the official dialogue between the United States and China resumes, consideration of a list of individuals detained for the non-violent expression of their political and religious beliefs must form a key element of it, as it

has in all previous sessions. The State Department should have on hand a continuously updated list of prisoners that can be readily handed over to Chinese

officials at short notice, and it should rely on the CECC’s data base and Dui

Hua’s data base to prepare it.

2. In its dealings with the governments of countries that have human rights

dialogues with China, the State Department should encourage the practice of

asking about cases of concern in the form of prisoner lists, and push for greater

sharing of information and other forms of cooperation. The Berne Process, a

five-year-old grouping of countries that have dialogues and exchanges with

China on human rights, has shown some modest results in these areas but has

recently come under attack by the Chinese government. The State Department

should make clear its support for the Berne Process, and raise the level of its

participation in the group’s meetings.

3. The State Department should examine ways to better utilize the United Nations system to bring cases of concern to the attention of working groups and

thematic mechanisms, the International Labor Organization, and UNESCO.

The United States should join the Human Rights Council at the earliest opportunity.

4. The Chinese government appears to have come to the conclusion that interest in human rights among people in Washington has waned and that issues

like North Korea, Iran, and currency exchange rates are what occupy policymakers and legislators. Reading press accounts of recent visits by Congressmen

and Senators to China, I have been struck by how human rights is rarely if ever

mentioned. I wonder if members are willing to bring prisoner lists to China, as

they did in the past. I am confident that Senator Hagel and commissioners will

take steps to disabuse the Chinese government of the notion that Members of

Congress and the people they represent no longer care about the fate of prisoners of conscience in China.

5. It is vital that funding of open-source research and the data bases it feeds

be maintained at least at present levels. I am troubled by reports that State

Department funding for Dui Hua’s data base might be reduced. I have brought

with me two representative ‘‘finds’’ made recently in libraries in China, one giving the first-ever detailed statistics for executions carried out in a Chinese counVerDate 11-MAY-2000 10:20 Nov 06, 2006 Jkt 000000 PO 00000 Frm 00046 Fmt 6601 Sfmt 6621 U:\DOCS\30571.TXT CHINA1 PsN: CHINA1
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ty, the other giving details of a hitherto-unknown political party with more than

2,000 members operating in Henan Province. Its leaders are almost certainly

still in prison. They are alone, but they are no longer unknown, and we will

not forget them.

Thank you again for inviting me to testify today, and for the important work of

the Congressional-Executive Commission on China. Dui Hua looks forward to even

more cooperation with the commission in the future.

PREPARED STATEMENT OF MINXIN PEI

SEPTEMBER 20, 2006

Mr. Chairman and Members of the Commission:

Like many observers of developments in China, I have watched with increasing

concern recent trends that indicate deterioration in human rights conditions and

stagnant progress in strengthening the rule of law in China. To list a few examples,

several eminent lawyers have been intimidated and prevented from representing

their clients. A blind peasant activist has been falsely charged of crimes he did not

commit and sentenced to lengthy prison terms. The media has come under increasing government control as well. Many urgently needed legal reforms, such as changing the way judges are appointed and courts are financed and supervised, have been

put on shelf even though these measures will increase judicial independence and

contribute to social stability.

While today’s China is a much more kinder and gentler Nation than it was before

reform, and we should give the Chinese people and the pro-reform forces in the government the credit for achieving such amazing progress in poverty reduction and

expansion of personal freedom, we must recognize that the pace of improving political rights for Chinese citizens and strengthening the institutions of the rule law

has lagged significantly behind the speed of economic progress. In recent years, the

process of political liberalization has stalled even though the Chinese economy continues its rise.

In today’s testimony, I will briefly focus on the underlying political causes for the

deterioration of human rights and stalled progress in building a system based on

the rule of law in China.

In my judgment, recent symptoms of rising social unrest and instability may be

only a partial explanation for the government’s intensified efforts of social and political control. The more important underlying cause for China’s backslide on human

rights and rule of law originates from a combination of factors that together reduce

the ruling elites’ incentive to pursue political reform while increasing their capacity

for political control.

China has fallen into a classical transition trap at the moment. The current stage

of transition, with half-finished economic reforms and partial political reforms, provides an ideal situation for the ruling elites who can maintain power with a mixture

of political legitimacy derived from economic performance, political co-optation of

new social elites, and increasingly effective methods of political control. Economically, strong growth record since Tiananmen has reduced the pressure on the Chinese government to pursue democratic reforms; indeed, it has even provided

justifications for a hardline position on human rights. More important, because

under one-party rule, China’s political elites can easily convert their political power

into economic wealth, they have even less incentive to permit greater political competition. It is obvious that democratic reforms will not only threaten their political

monopoly, but newly acquired economic wealth.

At the same time, the Chinese government has been adapting itself skillfully to

new social and economic changes. It has done so first by including social elites, such

as professionals and intellectuals, into the ruling elites. In addition, it has also managed to co-opt new elites, especially private entrepreneurs. This strategy has eliminated challenge to the Party’s authority from the most well-endowed and capable

elements in Chinese society.

Over the last decade, the Chinese government has also greatly improved its capacity of suppressing both political dissident activities and social unrest. It has done

so by heavy investment in law enforcement and technology. The strong capabilities,

unfortunately, seem to have convinced the Chinese leadership that a tough approach to dealing with political dissent and social frustrations is a more effective

way than political negotiation, compromise, and democratic reforms.

As long as this combination of factors persists, it is unlikely that human rights

will improve significantly in China. Nor it is likely that the rule of law will be

strengthened.

44

But the picture is not all that gloomy. Despite the Chinese government’s unrelenting efforts to control the media and limit the growth of democratic forces, Chinese

society is changing. Although it is not possible to form broad-based democratic opposition to challenge the authority of the Party openly today, the spread of personal

freedom, the information revolution, and market forces is creating a more conducive

environment for social pluralism. Therefore, I continue to urge a policy of critical

engagement that can both advance American values and promote its national interests.

PREPARED STATEMENT OF XIAO QIANG

SEPTEMBER 20, 2006

THE RISE OF CHINESE BLOGOSPHERE AND INTENSIFIED CONTROL EFFORTS ON THE

CHINESE INTERNET

Chairman Senator Chuck Hagel and Distinguished Commission members,

My name is Xiao Qiang. I am the Director of the China Internet Project, at the

Graduate School of Journalism of UC Berkeley. It is a privilege for me to be speaking in front of this important commission, and alongside my distinguished fellow

panelists. My talk today will focus on the growing information flow on the Chinese

Internet, and the Chinese government’s intensified control in this regard.

Over 130 million Chinese are now online, and 440 million cell phones are in use

in the country. Over the last 18 months, two significant trends related to China’s

Internet development deserve our attention. The first is the explosive growth of the

Chinese blogosphere and related new media technologies such as podcasting and

photo/video sharing Web sites; and the second is pervasive and sophisticated government censorship, through legal and administrative regulations, together with surveillance, intimidation, imprisonment and propaganda measures. Today, I will provide

some context and analysis for both phenomena, and also make recommendations to

the U.S. government on policy implications.

The number of bloggers has increased so rapidly in the past two years that there

exists no accurate count of their number. In January of 2005, China was estimated

to have around 500,000 bloggers. According the latest survey from the official China

Internet Network Information Center, there were about 28 million blogs in China

by the end of July 2006. This is more than twice the number of bloggers in the

United States. This significant growth is mainly due to the fact that all the main

China Internet portals, such as Sina.com and Sohu.com, and other portal-like blog

hosting services, such as bokee,com and Blogbus, started actively promoting blog applications among the over 130 million Chinese Internet users.

It is worth noting that all these Internet companies are funded through venture

capital from the United States, and listed or aiming to be listed on the Nasdaq stock

market. Development of the blogosphere is the result of both technology diffusion

and Chinese government efforts to promote a knowledge-based economy in a global

environment.

The unintended result, however, is the ability of Chinese citizens to create a public space to discuss public and political affairs, as well as creatively express themselves and buildup social networks online. Unleashed in a personalized, accessible,

and inexpensive medium, Chinese netizens, especially urban intellectuals, students

and white collar workers have begun to use the Internet as the primary place to

voice their opinions on personal or public affairs. Despite government efforts to

control the information environment and mass media, in the highly decentralized

and diversified blogosphere, bloggers communicate political views in such a manner

as to bring many ‘‘hidden transcripts,’’ once suppressed, into the light of public consideration.

Mr. Chairman, Distinguished Commission members, online discussions of current

events, especially through Internet bulletin board systems (BBS) and Weblogs, or

‘‘blogs,’’ are having real agenda-setting power. The Chinese government has devoted

enormous financial resources to set up government-sponsored Web sites at all levels

of government, from national to regional and provincial. About 10 percent of all Web

sites are directly set up and run by the government, until bloggers arrives in Chinese cyberspace. But these official sites have signally failed to gain the trust of the

young, urban and educated netizens. On the contrary, people simply go to any number of independent BBS and blogs, to read what they think is interesting. Popular

BBS such as Tianya community and Xicihutong, and individual bloggers, enjoy far

more online popularity, and therefore real influence among netizens, than official

Web sites such as Xinhua.com.

45

This leads to my second point: the Chinese government’s intensified control of the

Internet. The Chinese government’s ongoing efforts to control speech online and in

print has been well-documented. But a series of new measures show that official

control of expression has reached a new height in recent months. These measures

range from the Public Pledge on Self-Discipline for China’s Internet Industry, regulation of news and information, Internet cafe management, domain name management and Web site real name registration. The Commission’s new report did an

excellent job in documenting those censorship measures. Let me just focus on two

telling examples from an important component of Internet control: fear.

In January 2006, the Shenzhen Public Security Bureau created animated images

of a pair of police officers named ‘‘Jingjing’’ and ‘‘Chacha,’’ (from ‘‘jingcha,’’ or police.)

These images, which appear on Web sites of Shenzhen city offices and private

Shenzhen-based companies, provide links to the Internet police section of the Public

Security Web site. By June, the Chinese Ministry of Public Security created similar

online police mascots that were put into operation in eight major cities in China.

According to the official Chinese E-Governance Net Web site: ‘‘The main function

of Jingjing and Chacha is to intimidate. . . . The Internet has been always monitored by police, the significance of Jingjing and Chacha’s appearance is to publicly

remind all netizens to be conscious of safe and healthy use of the Internet, self-regulate their online behavior, and maintain harmonious Internet order together.’’

Another important method to monitor Internet activities is the use of real-name

registration. In June 2006, the Ministry of Information Industry (MII) ordered all

weblogs and Web sites to register with the government or face closure.This registration will impose a true-name system on Web site owners. After registration one

must display the electronic verification mark in a specific location on the Web site,

and must also link to the MII supervision system for making inquiries. By doing

this the identity of the Web site owner will be immediately clear.

These examples reveal that the Chinese government has learned to turn the digital

and transparent properties of Internet technology into a surveillance and intimidation tool to control its citizens’ behavior. The underlining mechanism works to instill

fear among netizens that they are being watched. Of course, these new technologically empowered control mechanisms are only effective when they are used together with intimidation in the physical space. In just the past two weeks, three

cyber-dissidents—Zhang Jianhong,Yang Maodong and Chen Shuqing—have been arrested for their online publishing activities, according to the Paris-based Reporters

without Borders. This combination of old-fashioned state control and the most

advanced communication technology has a powerful chilling effect to enforce selfcensorship in Chinese cyberspace.

Mr. Chairman, Distinguished Commission members, despite impressive economic

growth over the last two decades, the Chinese Communist Party (CCP) faces a fundamental dilemma in that it wants to create an information-based economy, but

lacks the political will to promote active political participation by Chinese citizens.

The long-term survival of the CCP’s power monopoly regime also critically relies on

its ideological work and control of the information and symbolic environment.

But for China’s one-party state, controlling the nature of the information available

to its citizens has never been more difficult. Tens of millions of netizens are empowered by the new publishing platform. What’s happening in the Chinese blogosphere

is a power shift—not directly at the level of political institutions and law, but

around the change of communication systems and the ability to shape the information and symbolic environment.

In the near future, we will see more and more efforts by the Chinese government

to keep the information flow, online or off-line, under its control, using the mechanisms listed in the Commission’s report, and mentioned in my presentation today.

In the long term, however, I believe the Chinese censors are fighting a losing battle.

The deeper problem here is that the Chinese Communist Party itself is morally

bankrupt and intellectually exhausted. More regulations will not make official propaganda any more attractive or credible to Chinese netizens. Technological filtering

and surveillance, real name registration, and even harsh police actions against political activists will not help the party gain legitimacy either. In my view, the rise of

the blogosphere and other communication technologies such as cell phones and short

text messages marks the beginning of the end of the CCP’s ideological and propaganda control over Chinese society.

For this reason, in addition to close monitoring, more comprehensive and in-depth

studies on the social and political implications of the Internet are crucial for the

U.S.-China policymaking process. Will this pervasive, many-to-many and emergent

communication platform play a critical role in democratizing China?—or will the

Chinese Communist Party’s one-party authoritarian regime ultimately domesticate

Chinese cyberspace, turning it into an Orwellian monster? We need a better underVerDate 11-MAY-2000 10:20 Nov 06, 2006 Jkt 000000 PO 00000 Frm 00049 Fmt 6601 Sfmt 6621 U:\DOCS\30571.TXT CHINA1 PsN: CHINA1
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standing of these questions if we want to understand this complex, rapidly changing

and globally significant country.

I also want to bring the Commission’s attention to another important document:

‘‘Race to the Bottom: Corporate Complicity in Chinese Internet Censorship,’’ published by Human Rights Watch last month. The report documents the different

ways in which American companies such as Yahoo!, Microsoft and Google are assisting and reinforcing the Chinese government’s censorship system. The report also

makes policy recommendations to both the U.S. government and companies on how

to address this serious issue.

Finally, I encourage the U.S. government to be a more active player in developing

and employing anti-censorship technologies, which will not only help Chinese people

to gain direct access to information about U.S. government sponsored Web sites

such as Radio Free Asia and VOA, but also can contribute to greater information

flow and freedom of expression in Chinese cyberspace. Ultimately, it’s the Chinese

people themselves who want a freer Internet and a freer society. The Great Firewall, no matter how advanced its technology and how much fear the government

tries to instill, will crumble, and much sooner than the Great Wall. Neither repression nor censorship will stop China from becoming a more open and humane society

in the 21st century.

Thank you, Mr. Chairman.

OPENING STATEMENT OF HON. CHUCK HAGEL, A U.S. SENATOR FROM NEBRASKA,

CHAIRMAN, CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA

SEPTEMBER 20, 2006

The Commission issues a report each year to the Congress and to the President

on human rights conditions and the development of the rule of law in China. In connection with today’s release of the 2006 Annual Report, the Commission has asked

a distinguished group of witnesses to assess the current state of civil rights and

criminal defense; freedom of expression; and efforts to adopt democratic institutions

of governance, implement legislative reform, and improve the environment for domestic and international civil society groups in China.

The Commission will also hear the perspective of the witnesses on how the United

States might best engage with the Chinese government through dialogue on human

rights and rule of law issues.

In its 2006 Annual Report, the Commission expresses deep concern that some

Chinese government policies designed to address growing social unrest and bolster

Communist Party authority are resulting in a period of declining human rights for

China’s citizens. The Commission identified limited improvements in the Chinese

government’s human rights practices in 2004, but backward-stepping government

decisions in 2005 and 2006 are leading the Commission to reevaluate the Chinese

leadership’s commitment to additional human rights improvements in the near

term. In its 2005 Annual Report, the Commission highlighted increased government

restrictions on Chinese citizens who worship in state-controlled venues or write for

state-controlled publications. These restrictions remain in place, and in some cases,

the government has strengthened their enforcement.

The Commission notes the progress that the Chinese government has made over

the past 25 years in beginning to build a political system based on the rule of law

and on respect for basic human rights. The twin demands of social stability and continued economic progress have spurred legal reforms that may one day be the leading edge of constraints on the arbitrary exercise of state power. The government’s

achievements in the economic realm are impressive, none more so than its success

in lifting more than 400 million Chinese citizens out of extreme poverty since the

early 1980s.

While all of these changes are important, the gap between forward-looking economic freedoms and a backward-looking political system remains significant. There

are leaders now within China who comprehend the need for change, and who understand that inflexibility, secretiveness, and a lack of democratic oversight pose the

greatest challenges to continued development. These leaders will need to gather considerable reformist courage to overcome obstacles and push for continued change.

Such changes will not occur overnight, but rather in ways that Chinese society, culture, infrastructure, and institutions must be prepared for and willing to accept.

To help us better understand human rights conditions and the development of the

rule of law in China, we now turn to our witnesses.

Professor Jerome A. Cohen is a Professor of Law at the New York University

School of Law; an Adjunct Senior Fellow on Asia at the Council of Foreign RelaVerDate 11-MAY-2000 10:20 Nov 06, 2006 Jkt 000000 PO 00000 Frm 00050 Fmt 6601 Sfmt 6621 U:\DOCS\30571.TXT CHINA1 PsN: CHINA1
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tions; and Of Counsel at the law firm of Paul, Weiss, Rifkind, Wharton & Garrison.

Professor Cohen is a leading expert on the Chinese legal system and the international relations of East Asia. As an attorney, he has long represented foreign companies in contract negotiations and dispute resolution in China and other countries

in East Asia. As Director of East Asian Legal Studies at Harvard Law School from

1964 to 1979, Professor Cohen pioneered the study of East Asian legal systems in

American legal curricula. He has published numerous books and articles on Chinese

law, including ‘‘Contract Laws of the People’s Republic of China;’’ ‘‘The Criminal

Process in the PRC: 1949–1968;’’ and ‘‘The Plight of China’s Criminal Defense Lawyers.’’

After Professor Cohen, we will hear from Mr. John Kamm. Mr. Kamm is Executive Director of The Dui Hua Foundation; a Member of the Board of Directors for

the National Committee on U.S.-China Relations; and Director of Stanford University’s Project in Human Rights Diplomacy. Since 1990, Mr. Kamm has been an advocate on behalf of prisoners of conscience in China and has made more than 70

trips to Beijing in an effort to engage the Chinese government in a dialogue on

human rights. Mr. Kamm was awarded the Best Global Practices Award by former

President Bill Clinton in June 1997. He was also granted the Eleanor Roosevelt

Human Rights Award by President George W. Bush in December 2001 and a MacArthur Fellowship in September 2004. Mr. Kamm was the Hong Kong representative

of the National Council for U.S.-China Trade from 1976 to 1981 and was president

of the American Chamber of Commerce in Hong Kong in 1990.

Dr. Minxin Pei will provide perspectives on democratic governance and development of civil society. Dr. Pei is Senior Associate and Director of the China Program

at the Carnegie Endowment for International Peace. Dr. Pei is an expert on China,

U.S.-China relations, Taiwan, East Asia, and the development of democratic political systems. Dr. Pei is the author of numerous books and articles on China, including ‘‘China’s Governance Crisis;’’ ‘‘Rebalancing United States-China Relations;’’ and

‘‘Future Shock: The WTO and Political Change in China.’’ In his most recent book,

‘‘China’s Trapped Transition: The Limits of Developmental Autocracy,’’ Dr. Pei examines the sustainability of the Chinese Communist Party’s reform strategy—pursuing pro-market policies under one-party rule.

Mr. Xiao Qiang will share his expertise on freedom of expression in China. Mr.

Xiao is Director of the China Internet Project at the University of California at

Berkeley. Mr. Xiao is a recipient of the MacArthur Fellowship and is currently

teaching classes on ‘‘new media and human rights in China’’ at the University of

California at Berkeley. Mr. Xiao was the Executive Director of Human Rights in

China from 1991 to 2002. Mr. Xiao spoke at each meeting of the U.N. Commission

on Human Rights from 1993 to 2001, and has lectured on the promotion of human

rights and democracy in China in over 40 countries. Mr. Xiao currently runs the

China Digital Times Internet news portal and is a weekly commentator for Radio

Free Asia.

We welcome all of our witnesses today and appreciate their time and presentations.

PREPARED STATEMENT OF HON. JAMES A. LEACH, A U.S. REPRESENTATIVE FROM

IOWA, CO-CHAIRMAN, CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA

SEPTEMBER 20, 2006

Senator Hagel, I am pleased to join you and the Members of the CongressionalExecutive Commission on China today for this hearing on the core issues in the

Commission’s mandate: human rights and the rule of law in China. Our session this

morning is timely, as we have completed another year’s work on these issues, as

directed by Public Law No. 106–286. The culmination of our labors is today’s release

of the CECC Annual Report for 2006, which is also required by the statute.

I hope that our witnesses this morning can assess for us the short and mediumterm trends on several key issues of specific concern to the Commission: the current

state of freedom of expression and the free flow of information; criminal and civil

rights defense; and government transparency in providing information about prisoners of conscience. Each of our witnesses has the background and experience to

provide us with insights on efforts to implement legislative reform, and improve the

legal and operational environment for domestic and international civil society institutions in China. Mr. Chairman, the United States has pursued a policy of engaging

in discussion and dialogue with the Chinese government on human rights and rule

of law issues, and the views of our witnesses on how best to achieve success in such

a dialogue would be most welcome.

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I would also like to recognize the dedication and hard work of the CECC staff.

These 15 professionals have excellent Chinese language skills, deep understanding

of Chinese history and culture, great sympathy for the Chinese people, and a passionate dedication to human rights and the rule of law. From the youngest research

associate to the most experienced senior counsels, this group has focused its energies on advancing our knowledge about the issues in our mandate, and have prepared a superb report for us again this year.

Mr. Chairman, China’s growing role in regional and international affairs is a

result and a recognition of the impressive economic and social development in China

since the ‘‘reform and opening up to the outside world’’ period began in the late

1970s. When this period of remarkable change began, the People’s Republic of China

had a minuscule national economy, negligible international trade, no system of laws,

and by most objective measures was among the least developed countries in the

world in economic, political, and social terms. The achievements of the Chinese people are such that, to quote a December 2005 report by the Dui Hua Foundation

headed by John Kamm, one of our witnesses today, ‘‘. . . China is, in most respects,

a more well-off, open, and free place than it has been in modern history.’’

Yet China has far to go to complete its reforms, and has yet to address in a

comprehensive way the need for a model of democracy that can ensure that these

achievements will continue and take that nation’s development to the next level and

beyond. Significant problems loom ahead that may undo some or all of China’s great

progress. Chinese citizens who challenge government and Communist Party controls

on religion, speech, or assembly continue to face severe official repression, with the

government frequently using methods that violate not only China’s own Constitution and laws, but also internationally recognized human rights standards. The Chinese Communist Party continues to dominate political life in China, with Party

organizations formulating all major state policies. Most often these policies are

designed to protect the Party’s rule.

Many of the new laws adopted by the National People’s Congress have proven difficult or impossible to implement in practice at the provincial and local levels. In

the area of international trade, the government tolerates very high rates of infringement of intellectual property rights. In commercial and civil law, court judgments

are often difficult to enforce. Labor laws related to workplace health and safety,

overtime, and payment of overdue wages are most often honored in the breach,

resulting in widespread worker protests.

Chinese leaders seem deeply worried about growing social unrest, which often is

the result of official corruption, development projects that pollute the environment,

government eviction of urban and rural residents from their land for new building

projects, poor workplace conditions in many Chinese mines and factories, and unpaid wages and pensions. In addition, an underfunded public health system cannot

offer ordinary care to most citizens, and is dangerously incapable of coping with the

sudden health crises of a globalized world, such as HIV/AIDS, SARS, and avian influenza. As a result, many Chinese citizens have lost confidence in the Communist

Party and the government. As the 21st century advances, the impact of these and

other problems could precipitate the worst nightmare for China’s leaders: widespread unrest, possibly social and political chaos.

For basic democracy to work anywhere, citizens need freedom of expression and

a free flow of information, so that, for example, public health crises such as HIV/

AIDS or SARS can come to light without delay; so those injured by state officials

or policies can safely speak out and organize to oppose them; and so that those

harmed by corrupt or incompetent officials can blow the whistle and begin legal procedures to remove them without fear of retribution. In this connection, the trend

lines are troubling: over the past year or more, the Chinese government has become

less tolerant of public discussion of central government policies. Restrictions have

tightened on journalists, editors, and Internet Web sites, and officials frequently

harass, intimidate, and imprison journalists, editors, and writers.

Mr. Chairman, I believe that whether the 21st Century is peaceful and prosperous

will depend on whether the world’s most populous country can live with itself and

become open to the world in a fair and respectful manner. In a globalized world in

which peoples everywhere are seeking a sense of community to serve as a buttress

against political and economic forces beyond the control of individuals and their

families, mutual respect for differences is the key to peace and prosperity.

From an American perspective, the assumption is that China’s economic and social system cannot develop to its fullest unless the rule of law and its associated

rights—including freedom of religion, speech, and of the press, due process for disputes over private rights and also contractual obligations, and a judiciary that efficiently and fairly adjudicates disputes—are made central tenets of Chinese life and

the normal experience of the Chinese people.

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I look forward to learning from our witnesses whether or not they believe China

is closer to that goal today.

Thank you.

PREPARED STATEMENT OF HON. SAM BROWNBACK, A U.S. SENATOR FROM KANSAS,

MEMBER, CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA

SEPTEMBER 20, 2006

Thank you for holding this hearing, Mr. Chairman, and for assembling a distinguished panel of witnesses. Today the Commission is releasing its annual report and

yesterday, the members of the Commission, including myself, had the opportunity

to cast our votes. I did not approve this year’s report and I would like to take just

a few minutes to explain why.

Back in 2000, almost exactly six years ago today, the Congress granted permanent

normal trade relations with China. PNTR was considered not only the best economic

deal for the United States, but also was seen as one of the best ways to support

reform in China. One of the key provisions of the PNTR bill was the creation of this

Commission to act as the watchdog on China human rights. By statute, the Commission is charged with monitoring the broad human right’s situation in China and

it does this by holding hearings, conducting research, and management of a critical

data base on prisoners. The Commission also is required to publish an annual report

that is designed to guide U.S. policy toward China based on its human rights record.

In my opinion, this report does not meet that goal. The Commission staff has done

an incredible job pulling together a strong and compelling narrative with over a

thousand footnotes on what has happened over the past year in the specific areas

of concern in China. And the continuing human rights abuses they have reported

are very troubling.

The report is weak however, in the conclusions it draws and the recommendations

to the executive and legislative branches. What troubles me is the scorecard mentality we take toward human rights in China—one activist released but two arrested. One new law passed, three more laws completely ignored. It’s not clear to

me if such an approach gives us a broad view of the state of human rights in China

today.

I believe that any discussion of regression or progress in China has to address

the fundamental issue of China’s one-party dictatorship. Without recognition of the

centrality of this fact, we are left treating the symptoms but not the disease.

We should not hesitate to call a spade a spade. We should not hesitate to say

explicitly that the fundamental obstacle to true reform in China is the Chinese

Communist Party because the Communist Party continues to control all facets of

Chinese political and social life. This type of one-party dictatorship prohibits the

functioning of an independent judiciary, freedom of expression and the development

of other freedoms enjoyed by citizens in a liberal democracy. Absent reforms in the

political and civic spheres in China, incremental legal, social and economic reforms

detailed in this report will never lead to true human rights or rule of law in China.

And what does this mean for U.S. policy? It means we can’t be fooled into believing

that years of rule of law training will in and of themselves lead to the development

of rule of law in China. External aid cannot substitute for internal will to reform.

What China has now is the Communist Party’s ‘‘rule by law’’ and this will not be

supplanted with ‘‘rule of law’’ without fundamental change in the one-party structure of control by the Communist Party.

Recently China has started rounding up and jailing lawyers who are simply trying

to use China’s own system of laws to fight for the rights of ordinary citizens. These

are not protestors throwing Molotov cocktails hoping to overthrow the government.

These are principled men and women who simply want to use the tools supposedly

given to every Chinese citizen to exercise their rights under the Chinese legal system. Apparently even that goes too far for the Party and these rights defense lawyers are being harassed, beaten, arrested and sentenced to lengthy prison terms.

One of these brave activists, Wang Yi, summed it up succinctly: ‘‘If even the rights

defense movement cannot succeed, then there is really no hope for China.’’

The relationship between rule of law and human rights is inviolable. We will not

see an improvement in human rights without the rule of law in China. If we truly

want to see change in China, we need to engage the Chinese on the most fundamental issue—their one-party dictatorship and the need for true political reform

that will bring about a representative democracy. This is what the Commission

should be advocating and where recommendations to drive U.S. policy toward this

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end would be most effective. This is what is missing in this year’s report and what

I hope to see in next year’s report.

I would like to ask that my full statement be made a part of the record. Again,

thank you Mr. Chairman for convening this hearing and I look forward to hearing

from the witnesses.

PREPARED STATEMENT OF HON. STEVEN J. LAW, DEPUTY SECRETARY OF LABOR,

MEMBER, CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA

SEPTEMBER 20, 2006

Thank you, Mr. Chairman.

I would like to commend the staff of the Commission for their diligent work in

producing the 2006 Commission Annual Report on human rights conditions in

China. It is important to note both the progress China has made over the last

year—as a result of both advocacy and engagement by the United States and by

members of this Commission—and acknowledge the challenges we still face in the

areas of human rights and political freedom in China.

In its 2005 Annual Report, the Commission identified several problematic areas

relating to labor conditions in China. Among them:

• Wage and pension arrears are among the most important problems that Chinese workers face, and

• Workplace health and safety conditions are poor for millions of Chinese workers.

As the 2006 Annual Report notes, over the course of the past year, the U.S.

Department of Labor continued to engage China to implement bilateral cooperative

activities to address these challenges. During the year, we provided training to Chinese officials who are responsible for enforcing the Chinese labor code. We educated

company managers on worker rights and work safety. We also provided education

and legal aid to migrant and women workers who are among the most vulnerable

population in the workforce.

I would like to highlight a few indicators of the achievements resulted from such

bilateral cooperation:

• As of April 2006, the Rule of Law project trained 8,522 participants (migrant

workers, management representatives, and government inspectors) and produced 153,000 worker awareness publications to publicize wage and hour laws

and other labor regulations.

• 1,150 workers received counseling services.

• Among the migrant workers participating in the project, the percentage of

workers able to list three or more workplace rights increased to 96 percent in

the first quarter of 2006, up from 23 percent in 2005.

• The Rule of Law project is assisting in the drafting of China’s first Employment Contract Law, which is expected to improve worker protection and reduce

the conflicts and inconsistencies between laws that impede the enforcement of

exiting labor regulations.

• At the coal mines participating in a DOL project, the number of injuries per

1,000 miners decreased from 7.7 in 2003 to 1.86 in the first half of 2005.

While acknowledging these positive developments, we still face several challenges

in our engagement with China on worker rights and labor standards. Some of these

challenges arc daunting. We call on the government of China to hilly respect international labor standards and the principles embodied in the [LO 1998 Declaration

on Fundamental Principles and Rights at Work. These principles include:

• The elimination of all forms of forced or compulsory labor;

• The effective abolition of child labor; and

• The elimination of discrimination in respect of employment and occupation.

The 2006 Annual Report that we are releasing today finds that there is ‘‘an increase in the number of labor disputes’’ in China.

Today, China is at a critical juncture with a significant rise in strikes, marches,

demonstrations and mass petitions. The Department of Labor is currently working

with China to address the challenges in employee-employer relations:

• Through the Rule of Law project and working with Chinese government, researchers and enterprises, China completed the first comprehensive baseline

survey on labor dispute resolution in April of this year;

• The survey report, along with a list of recommendations, serves as a much

needed reference in drafting China’s Labor Dispute Resolution Law, which is reportedly to be ready for consideration this year;

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• Over the last year, the project set up labor-management committees at 15 selected enterprises in China and provided training to committee members on

ways to handle workplace disputes; and

• The project is testing training materials for government mediators on labor

dispute resolution techniques. Training is expected to begin in November.

Thank you, Mr. Chairman, for the opportunity to note the positive development

in the labor areas in China and the continued work that needs to be done in these

areas.

PREPARED STATEMENT OF FRANKLIN L. LAVIN, UNDER SECRETARY OF COMMERCE,

MEMBER, CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA

SEPTEMBER 20, 2006

Thank you, Chairman Hagel, Co-Chairman Leach, Senators, Congressmen and

fellow members of the Commission. I commend the staff for its excellent work on

the 2006 Annual Report on human rights conditions and the development of the

rule of law in China. I also thank the distinguished group of witnesses gathered

today to discuss the current state of freedom of expression, criminal and civil rights

defense, and government transparency in providing information about prisoners of

conscience in China.

For more than 25 years, the United States has pursued a policy of open commercial exchange with China. We have encouraged Chinese leaders to embrace market

principles and welcomed China into the global economy. We supported China’s accession to the World Trade Organization. We have an optimistic goal of a stable and

prosperous partnership between America and China that will be better achieved

with China fully participating in the international trading system.

Economic cooperation between the United States and China has greatly benefited

both countries and we believe that the dynamic growth that China has realized

through free trade and will work for our mutual benefit in the future. With this in

mind, we also believe that there is a relationship between open economies and open

societies and expect that economic progress is likely to be accompanied by progress

in human rights and the rule of law.

Indeed, we approach this Commission with a fundamental belief that progress in

human rights and the rule of law are essential for China to maintain its economic

progress. We also have a fundamental concern about the relationship between commercial rights of U.S. companies and individual rights. Further, we want U.S. companies to be good corporate citizens in their overseas activities, respectful of the

rights of workers and other stakeholders. We must measure how well and how

transparently China treats both companies and individuals under the law. We are

also concerned about the role of U.S. companies doing business in China as well as

how China treats these companies. How these companies perform in their dealings

with the Chinese government and in the Chinese commercial environment has a

bearing on future progress in human rights for Chinese citizens.

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