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[Joint House and Senate Hearing, 107 Congress]
[From the U.S. Government Publishing Office]

 
TAMING THE DRAGON: CAN LEGAL REFORM FOSTER RESPECT FOR HUMAN RIGHTS IN 
                                 CHINA?
=======================================================================

                                HEARING

                               before the

              CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA

                      ONE HUNDRED SEVENTH CONGRESS

                             SECOND SESSION
                               __________

                             APRIL 11, 2002
                               __________

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

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

                    U.S. GOVERNMENT PRINTING OFFICE
79-960                       WASHINGTON : 2002
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              CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA

                    LEGISLATIVE BRANCH COMMISSIONERS

Senate                               House

MAX BAUCUS, Montana, Chairman        DOUG BEREUTER, Nebraska, Co-
CARL LEVIN, Michigan                 Chairman
DIANNE FEINSTEIN, California         JIM LEACH, Iowa
BYRON DORGAN, North Dakota           DAVID DREIER, California
EVAN BAYH, Indiana                   FRANK WOLF, Virginia
CHUCK HAGEL, Nebraska                JOE PITTS, Pennsylvania
BOB SMITH, New Hampshire             SANDER LEVIN, Michigan
SAM BROWNBACK, Kansas                MARCY KAPTUR, Ohio
TIM HUTCHINSON, Arkansas             NANCY PELOSI, California
                                     JIM DAVIS, Florida

                     EXECUTIVE BRANCH COMMISSIONERS

                 PAULA DOBRIANSKY, Department of State
                 GRANT ALDONAS, Department of Commerce
                D. CAMERON FINDLAY, Department of Labor
                   LORNE CRANER, Department of State
                    JAMES KELLY, Department of State

                        Ira Wolf, Staff Director
                   John Foarde, Deputy Staff Director

                                  (ii)

                            C O N T E N T S

                              ----------                              
                                                                   Page

                               STATEMENTS

Opening statement of Hon. Max Baucus, a U.S. Senator from 
  Montana, Chairman, Congressional-Executive Commission on China.     1
Kamm, John, Executive Director, the Dui Hua Foundation...........     3
Hecht, Jonathan, Deputy Director, Senior Advisor Research Fellow, 
  the China Law Center, Yale Law School..........................     4
Kumar, T., Advocacy Director, Asia and Pacific, Amnesty 
  International..................................................     6

                                APPENDIX
                          Prepared Statements

Kamm, John.......................................................    22
Hecht, Jonathan..................................................    26
Kumar, T.........................................................    29

Baucus, Hon. Max.................................................    43
Bereuter, Hon. Doug..............................................    44
Kaptur, Hon. Marcy...............................................    45

                       Submissions for the Record

Prepared statement of Michael Posner, the Lawyers Committee for 
  Human Rights...................................................    46

TAMING THE DRAGON: CAN LEGAL REFORM FOSTER RESPECT FOR HUMAN RIGHTS IN 
                                 CHINA?

                              ----------                              

                        THURSDAY, APRIL 11, 2002

                            Congressional-Executive
                                       Commission on China,
                                                    Washington, DC.
    The hearing was convened, pursuant to notice, at 2:37 p.m., 
in room SD-215, Dirksen Senate Office Building, Hon. Max Baucus 
(Chairman of the Commission) presiding.
    Also present: Representatives Wolf, Pitts, Levin, and 
Kaptur; and D. Cameron Findlay, U.S. Department of Labor.

   OPENING STATEMENT OF HON. MAX BAUCUS, A U.S. SENATOR FROM 
 MONTANA, CHAIRMAN, CONGRESSIONAL-EXECUTIVE COMMISSION ON CHINA

    The Chairman. The hearing will come to order.
    I would like to welcome everyone to the second hearing of 
the Congressional-Executive Commission on China.
    Today, we will continue to pursue the relationship between 
the rule of law and protection of human rights in China. At our 
next hearing in June, we will look at commercial rule of law 
and the WTO [World Trade Organization].
    My opening statement is short. I will, when I am finished, 
turn to my co-chair, Congressman Doug Bereuter, who I assume 
will be here quite soon, before we hear from our witnesses, 
followed by questions.
    In the Commission's work, I start from one fundamental 
assumption: That a modern, industrialized Nation must have a 
legal system that is clear, fair, consistent, impartial, and 
independent.
    There can be no room for arbitrary decisions. The police 
and the courts must be held accountable for their actions. The 
law must determine when rights are granted and when rights may 
be taken away, not the arbitrary whims of administrative 
officials.
    This is necessary in commercial law for routine business to 
proceed, and it is no less necessary in civil and criminal law.
    China is a conundrum. Thirty years ago, Mao Zedong was the 
supreme leader of a totalitarian Marxist-Leninist system. 
Today, after two decades of reform, the portrait of Mao that 
hangs from Tiananmen Gate overlooks a vastly different China.
    On the streets of Beijing, Shanghai, and other cities, one 
would be hard pressed to find any real evidence of Marx or of 
Lenin. Power in China has become much more diffuse. It is 
wielded by an ever-increasing number of officials and 
bureaucrats within the Communist Party and the Central 
Government, as well as officials at the provincial and city 
level.
    A significant part of the economy is now based on market 
principles. State-owned enterprises are shrinking rapidly. Some 
journalists challenge government-imposed restrictions on press 
freedom.
    The practice of religion is spreading. Legal clinics teach 
ordinary citizens about some of their rights, albeit with 
strict boundaries. Nevertheless, despite these changes, Xiao 
Qiang, head of Human Rights in China, reminded us at an earlier 
hearing that the Chinese Government has become a system of rule 
by law rather than rule of law. That two-letter preposition, 
rule by law versus rule of law, makes all the difference.
    Under rule by law, authorities manipulate the law to 
achieve their own ends. Laws are often used as a means of 
subjugation or repression. With rule of law, the law itself is 
the final word. Human rights can only be protected within a 
system of laws. Anything else is arbitrary.
    The Commission is beginning to work on its first annual 
report due in October. The report will include recommendations 
about how we can help China respect rule of law, a necessary 
step in China's march to join the community of nations.
    These hearings, along with the detailed roundtables being 
held by the staff, which I understand have been most 
productive, will provide significant input into that report.
    Let me list several questions that I hope we can address 
today. We have a distinguished panel of witnesses to help us do 
that.
    How does the criminal justice process work in China? How 
can we help improve it? Second, what is the current status of 
lawyers in China? To what degree can they challenge police and 
prosecutors and defend clients without fear of punishment or 
retribution? How can we help improve the situation for lawyers 
in China?
    Third, is China a more rules-based system now than in the 
past? What are the trends? And fourth, can one differentiate 
between a rules-based commercial law system and a rules-based 
civil and criminal law system? These are the basic questions.
    Today, we have three distinguished panelists, each either 
personally or through his institution has played an important 
role in trying to move the Chinese Government in the proper 
direction.
    John Kamm is Executive Director of the Dui Hua Foundation. 
John, of course, is very well known to all of us and has made 
some stunning contributions in the release of political and 
religious prisoners in China.
    Jonathan Hecht is Deputy Director and Senior Research 
Fellow of The China Law Center at Yale Law School. He has been 
on the cutting edge of assisting change in China's legal 
structure.
    T. Kumar is Advocacy Director for Asia and Pacific for 
Amnesty International in Washington. Amnesty has brought 
worldwide attention to human rights issues throughout the world 
for decades.
    We will give each of you 5 minutes for your opening 
statements, then members of the Commission will ask questions. 
I will recognize the members of the Commission in the order in 
which they arrived today.
    So, Mr. Kamm, why do you not proceed?
    [The prepared statement of Senator Baucus appears in the 
appendix.]

    STATEMENT OF JOHN KAMM, EXECUTIVE DIRECTOR, THE DUI HUA 
                           FOUNDATION

    Mr. Kamm. Thank you very much, Chairman Baucus and 
distinguished Members of the Congressional-Executive Commission 
on China.
    I was one of the first people to call for the establishment 
of a Congressional-Executive body, modeled on Congress' 
Helsinki Commission, to investigate, document, and struggle 
against violations of human rights in China.
    Now that this Commission is established, the time has come 
to fulfill the promise for which it was created. This 
Commission should make securing the release of political and 
religious detainees from Chinese prisons its highest priority, 
the measure against which it is judged. This work is not only 
about saving a few lives, though one should make no apology 
when such a result is achieved.
    It is about bringing respect for human rights and rule of 
law to China. The dichotomy that some would draw between doing 
humanitarian work and doing human rights work is a false 
dichotomy.
    Who are the people whose freedom we seek? They are labor 
organizers like Yao Fuxin, entrepreneurs like Rebiya Kadeer, 
clergy like Bishop Su Zhimin, journalists like Jiang Weiping, 
Tibetan activists like Ngawang Oezer, and democracy leaders 
like Xu Wenli. They are the people who will someday change 
China, but whose ability to do so now is constrained by their 
being locked away in Chinese prisons. Free them and change 
China.
    There are thousands of individuals jailed for political and 
religious reasons whose names we do not know. My foundation 
searches the world for their names. We have found 2,000 of them 
in 3 years of research in libraries and book stores.
    How is it possible that their names have been accessible to 
China's scholars and human rights activists for so many years 
and no one has bothered to look for them and write them down? 
This Commission should join the effort to find as many of their 
names as possible and present them to the Chinese authorities 
at every opportunity, remembering that the struggle of man 
against power is the struggle of memory against forgetting, and 
that truth crushed to earth will rise again.
    Prisoners have rights. They are human beings. Getting the 
Chinese Government to respect their rights to freedom from 
torture, to medical care when they are ill, to the comfort of 
family visits, to due process in the hearing of appeals is 
fundamentally a struggle for human rights.
    Using international standards and China's own laws to win 
freedom and better treatment for prisoners is fundamentally a 
struggle for rule of law. Arguing otherwise, denigrating 
prisoner work as something separate and less worthy than human 
rights work, or as some have argued, something that prolongs 
the life of the regime, making it easier for it to make arrests 
because they are able to score a few PR points is dangerous 
sophistry and I urge you to reject it.
    When we press for the release of political prisoners we 
send a strong message about our own priorities. This is a 
Nation built on the rights of the individual, not the rights of 
the collective. You cannot talk about human rights without 
talking about human beings.
    The spectacle of legal experts engaged in a bilateral 
dialog in which cases of violations are not discussed is one 
that must be avoided at all costs. Open and frank discussions 
about violations of human rights, discussions that are based on 
full and accurate information on individual prisoners, must be 
a condition for holding bilateral human rights dialogs.
    Assistant Secretary Lorne Craner, a distinguished member of 
this Commission, has taken this position and we should applaud 
him for it.
    This Commission should become an arsenal of human rights, 
arming its members and your colleagues in Congress with lists 
of the names of people whose freedom and better treatment must 
be a principal goal of our country's human rights diplomacy.
    I urge you to construct and post on your Web site the 
prisoner registry that your mandate calls for, and I urge you 
to do it without delay. The NGO [non-governmental organization] 
community is ready to help.
    Let your calls for freedom ring in the corridors of power 
in Beijing and in the provinces. Let them ring from the 
mountains of Tibet to the oil fields of Heilongjiang, from the 
villages of Sichuan to the teaming metropolis of Shanghai.
    Let those in prison for the simple expression of their 
beliefs hear freedom's song, and in that song, the voices of 
those who made this country a shining city on the hill, the 
hope of the world. You will then fulfill the promise of this 
Commission and do honor to your legacy as Americans.
    Thank you very much, Chairman Baucus.
    The Chairman. Do not let that red light stop you if you 
have more to say, John.
    Mr. Kamm. That is my statement.
    [The prepared statement of Mr. Kamm appears in the 
appendix.]
    The Chairman. All right. Fine.
    Next, Mr. Hecht.

 STATEMENT OF JONATHAN HECHT, DEPUTY DIRECTOR, SENIOR RESEARCH 
         FELLOW, THE CHINA LAW CENTER, YALE LAW SCHOOL

    Mr. Hecht. Thank you, Senator Baucus and the other members 
of the Commission for inviting me to speak here today.
    Law reform and human rights in China have been the focus of 
my work for the past 12 years as a foundation program officer, 
as an advisor to the U.N. High Commissioner for Human Rights, 
as a consultant to human rights groups here in the United 
States, and now as the deputy director of The China Law Center 
at Yale Law School.
    Based on my experiences, I believe that sustained, targeted 
support for legal reform can play a useful--indeed, crucial--
role in promoting human rights in China.
    Enormous change has taken place in China in the last 20 
years, including in the legal system. As a result of these 
changes, there are powerful forces at work in China for more 
openness and more respect for individual rights.
    But I do not believe that progress is inevitable. We cannot 
depend on economic reform and trade to lead automatically to 
progress in human rights. It is, and will continue to be, a 
struggle. In my written statement, I have indicated where and 
how our support for legal reform can contribute to that 
struggle.
    One of the main reasons why, after 12 years, I continue to 
work in this field, despite many frustrations and many 
disappointments, is I have enormous respect and admiration for 
Chinese legal reformers.
    They work in a difficult, even risky, political 
environment. They must overcome uncongenial traditions. They 
are seeking to fashion practical reforms, even as the country 
goes through change at a mind-boggling pace.
    Particularly given these difficult conditions, legal 
reformers in China have accomplished a great deal in a 
relatively short time. When I began making grants in China in 
1990, human rights was a taboo topic.
    The Communist Party dismissed human rights as the patented 
product of Western capitalist countries. In the years since, 
the combination of the efforts of reformers within China and 
criticism from abroad has led to the legitimation of human 
rights as a goal for China and its legal system, and, in 1997 
and in 1998, to China's signature on the two major 
international human rights treaties. Now reformers within China 
are using those treaties as a yardstick to critique and to push 
for further reform.
    Over the course of the 12 years that I have been working in 
this field, legal reform has also progressed to ever more 
fundamental issues. In the early days, legal reform meant 
getting laws on the books, much of it related to foreign 
investment and training a new generation of legal experts and 
professionals.
    Now the focus of legal reform is increasingly on structural 
issues, on the institutions and procedures that make laws work 
in practice.
    This has led to greater emphasis on the courts, in 
particular, whose role is critical to human rights protection 
and their relationship to other institutions, such as local 
governments and the police.
    Even in highly sensitive areas like criminal justice, we 
can see reformers going to deeper and more fundamental issues. 
In 1996, China adopted reforms to make criminal trials more 
open and give defense lawyers more of a chance to present a 
case.
    Those reforms have encountered many problems in 
implementation, the root of which is the vast powers of the 
police in China to detain and investigate before trial.
    So now reformers in China are turning their focus to the 
protection of human rights in the pre-trial stage through 
establishment of a right to silence and more oversight of the 
police so that reforms at the trial stage can have real 
meaning.
    Law is certainly not a cure-all. The sad truth is, many of 
the human rights issues that we care about the most, the right 
to political expression, freedom of conscience, minority 
rights, worker rights, are ones that are least likely to be 
positively affected by legal reform in the near future.
    In areas like these where the Communist Party sees social 
stability or its own survival at stake, it has no compunction 
about using the legal system to oppress and it retains tight 
control over legal institutions.
    But as legal reform goes deeper, I believe it has potential 
to become relevant even here. The work in administrative law 
and in judicial reform that I described in my written statement 
may, on the face of it, seem somewhat bland and technical.
    But under current conditions in China, that is its virtue, 
for at root it is about opening up the State to public scrutiny 
and participation and increasing judicial power and 
independence to curb official abuse.
    A fully satisfying resolution of the core problems in 
Chinese law, especially the relationship of the Communist Party 
to the legal system, and ending use of the legal system to 
deprive people of basic political, religious, and other rights, 
may well have to await a political breakthrough.
    We do not know when that breakthrough will come, but in the 
meantime, I believe that there is much that can be done through 
legal reform to improve rights protection in China today and to 
lay the groundwork for still fuller rights protection as and 
when the broader political environment allows.
    Thank you.
    [The prepared statement of Mr. Hecht appears in the 
appendix.]
    The Chairman. Thank you very much. That is very helpful.
    Mr. Kumar.

  STATEMENT OF T. KUMAR, ADVOCACY DIRECTOR, ASIA AND PACIFIC, 
                     AMNESTY INTERNATIONAL

    Mr. Kumar. Thank you very much, Mr. Chairman.
    Amnesty International would like to express its 
appreciation for inviting us to testify at this important 
hearing.
    Mr. Chairman, you asked a very important question in your 
opening remarks. You asked whether the Chinese legal system is 
clear, fair, impartial, or whether it is being used 
arbitrarily.
    Unfortunately, Amnesty International's research shows that 
it is not fair, it is not impartial, it is not clear, and it is 
being used arbitrarily against political opponents and peaceful 
political activists.
    The end result of this is that we see thousands of 
political prisoners in prison, religious leaders in prison, and 
executions in staggering numbers. China executes more people 
than all of the other countries put together.
    During the last 3 months, I think, from May to June or July 
2001, during that 3-month period, China had a special campaign 
called the ``strike hard campaign.''
    The Chinese executed more people during that 3-month period 
than all the other countries put together for the last 3 years. 
That shows how sad the situation is there. Law is being used to 
justify these executions. Even after executing prisoners, we 
hear reports about organs being removed without their consent.
    In a nutshell, Mr. Chairman, the law is being used as a 
political tool to suppress human rights and peaceful dissent in 
China. The Chinese legal system is more friendly to business 
than human rights.
    You also asked to comment about lawyers and other systems. 
In a nutshell, lawyers are struggling. They are trying to make 
some difference, but they are unable to make any difference 
because of the arbitrariness and political interference there.
    Confessions extracted under torture are being admitted 
there. That is part of the problem we face with the death 
penalty as well.
    Also, a special detention called ``reeducation through 
labor'' is in place in China. It is being used to imprison 
people without going through the regular legal system. Over 
200,000 people are in prison at this moment under that 
particular system.
    Last, but not least, Mr. Chairman, after September 11, the 
Chinese have taken advantage of the anti-terrorism issue and 
passed new regulations called anti-terrorism legislation in 
China. That came into effect in December 2001. Under that, 
thousands of Uighurs and Muslims have been arrested and 
imprisoned. It is continuing to this minute.
    When I mentioned about Xingjiang, I cannot wait to mention 
one particular case. Her name is Rebiya Kadeer. Her case can 
symbolize the arbitrariness, and also, if I may say, the 
arrogance, of the Chinese Government. This is Rebiya Kadeer. 
She was arrested while she was on her way to meet with 
Congressional staffers.
    When a Congressional delegation went to China, they went to 
the capital of the Uighur province called Urumgi. They were 
waiting for her, because she is a very successful 
businesswoman. When they were waiting to meet her, she was 
picked up outside of the hotel and she was charged with trying 
to meet with foreigners, and has been sentenced to 8 years. The 
trials were closed.
    You asked, Mr. Chairman, what you can do. There is a great 
opportunity coming down by the end of this month. The Vice 
President of China is going to be here. He is going to meet 
with the President. You can impress upon him to release Rebiya 
Kadeer and other prisoners in China, be they religious, be they 
political, or innocent victims themselves. Start a new 
relationship with him and inform him to take the Commission 
seriously. That is the challenge you face.
    As a human rights organization, we look up to you, Mr. 
Chairman and the Commission members, to stand up, not to be 
silent, because you are the only hope.
    We hope you will succeed. We are confident you will 
succeed. Thank you very much.
    [The prepared statement of Mr. Kumar appears in the 
appendix.]
    The Chairman. Thank you very much. That is very helpful.
    Mr. Hecht and Mr. Kamm, please talk a little bit about the 
interplay between a prisoner registry, maybe on a Web site of 
our Commission, and the issue of legal reform, occurring in 
China.
    Now, maybe there is no real linkage there. But I just 
wonder if you could discuss it a bit. There might be some way 
we can help. But if you see any linkage I would like to hear 
it. If you do not, tell us that, too.
    Mr. Kamm. As you know, Mr. Chairman, under the 1999 Omnibus 
Appropriations Bill, the State Department was required to build 
a registry of Chinese prisoners. Little was done for about 2 
years, then about a year ago, work was begun.
    I am pleased to report that, 2 days ago, I handed over to 
Assistant Secretary Craner two data bases with approximately 
6,000 names. I believe that is by far the largest registry of 
prisoners ever assembled.
    We divided it into two data bases, a registry of 
information from NGO publications and a registry of information 
that we have found in official Chinese publications. We are now 
trying to build a priority list of cases. We think we will come 
up with about 650.
    Now, as to your question of how something like this---- 
this is, by the way, I think, the first time that we will have 
at our disposal such a tool. I discussed this with Congressman 
Pitts the other day.
    If you have a sister state relationship with a province in 
China, as part of that relationship, the American State should 
be submitting lists of names of prisoners in that province, or 
in that city, or in that county. We should continuously put 
forward these lists of names.
    Now, with the technology available--and I am not 
technologically very competent--I understand that you can put 
into such a registry information on the prisoners and their 
cases that might have relevance to Chinese law.
    Chinese law provides for parole, for instance, when certain 
conditions are met. You could put that information into a 
registry. When high-level visitors come to this country, 
present them with lists of people who, under Chinese law, are 
eligible for parole. That is just one idea.
    Rebiya Kadeer. Another idea. We have uncovered a regulation 
that states explicitly that when it meets the Foreign Affairs 
requirements of China, a prisoner can be paroled.
    Well, clearly, if this woman was detained because she was 
about to meet a delegation of Congressional staffers, it seems 
to me that meets that particular requirement under the 
regulation. So, when making a call for her release, you could 
cite that regulation.
    These are some of the ways that we can marry these two 
things and attempt to bring about systemic change, but always 
with a focus on people, always with a focus on prisoners, 
people who are there. I just want to end with one final 
example. There is a young man in a Sichuan prison right now, in 
a jail, for posting pro-democracy articles on the Web. His is 
one of the first cases of an Internet dissident. His trial was 
concluded in August of last year.
    I was in Beijing last month and went to the Supreme Court 
and asked them, how is it possible that the trial was finished 
in August, but no verdict, no sentence, no ruling? They very 
sheepishly told me that there are no regulations governing the 
length of time between the conclusion of a trial and the 
announcement of a verdict.
    So again, when we talk about Huang Qi, this young man, one 
of the ways to go about it, I think, is by referencing this 
particular shortcoming in the system.
    The Chairman. Mr. Hecht, do you have a response?
    Mr. Hecht. Well, there is no doubt that there is an 
important relationship between individual cases and systemic 
failings in the Chinese system. I think as Mr. Kamm rightly 
pointed out, first of all, many of the individuals who are 
imprisoned in China for exercising their internationally 
recognized human rights, are people who would themselves be 
agents for change, including in the legal system, if they were 
not being held.
    Individual cases are also symptomatic of the broader 
failings in the legal system, and I think that Mr. Kamm is 
right, that we should be using our understanding of the Chinese 
legal system.
    I think one of the things that this Commission is 
contributing will be a better, more detailed understanding of 
the Chinese legal system, using that understanding to point out 
where the handling of individual cases violates Chinese law or 
international law, or both, and also using that knowledge, as 
Mr. Kamm suggests, to push for handling of individual cases in 
ways that Chinese law itself allows.
    I think that, in addition to that focus on individual 
cases, there are two other elements to an effective strategy 
for promoting legal reform and human rights in China. One, is a 
critique that is an explicitly systemic critique.
    Now, in part, as I just said, that will draw on individual 
cases for examples. But we also need to be looking 
systematically at the structural problems that exist in the 
Chinese legal system and engaging people in China, both in 
government and outside government, directly on those systemic 
problems and suggesting ways in which they can be addressed.
    So in addition to focusing on individual cases, we need to 
be focusing on systemic failings. Then, finally, we need to be 
providing support to the people within China who are working to 
address those systemic problems. So, I think that these several 
elements can all work together to really provide the maximum 
amount of support for the sorts of changes that we are looking 
for.
    The Chairman. All right. Now, I ask the indulgence of my 
fellow Commissioners here. But if I understand you, 
particularly, Mr. Kamm, you are suggesting that perhaps, a list 
or registry of names, can be linked with the issue of what the 
current legal rights are in China.
    It seems to me that the more that is known about some of 
these changes, as modest as they are, in China and the more 
people know about it the link with somebody on a list, that 
this may provide leverage to make something happen.
    As you say, Vice President Hu Jintao visits the United 
States. You say, hey, here are some names. What about that? 
These are some of the rights these people have and they are not 
allowed to exercise them. Does that help or not?
    Mr. Kamm. What is very important, is to get the Chinese 
Government to give us information in writing. It is very, very 
important we do that. We get the information, and once we have 
the information, we can use it.
    The Chairman. And the information you are talking about 
here is what?
    Mr. Kamm. On prisoners.
    The Chairman. That is names or the rights?
    Mr. Kamm. The names and their conditions and their 
situations. For instance, Liu Jingsheng comes to mind. He is a 
labor organizer who was imprisoned in 1992. Through the 
exercise of getting information in writing, we have discovered 
he has been given a couple of good behavior reductions.
    Under Chinese law, he is eligible for release. He has 
served more than half of his sentence and he has demonstrated 
the conditions necessary for parole.
    So, there is an example. In their own words, they have told 
you that this man is eligible for parole. He is a very 
important labor organizer. He tried to establish the Free Trade 
Union of China in 1992 and was given a 15-year sentence. He has 
served 10 years of that sentence. He is eligible for parole.
    So, that is the kind of thing I am talking about, using the 
information we have and our knowledge of the system to press 
for the release of specific prisoners.
    The Chairman. Thank you very much.
    Our Commission operates on the early bird system. The early 
bird is Mr. Cameron Findlay, on my right. After Mr. Findlay, on 
my list is Congresswoman Marcy Kaptur, Congressman Levin, 
Congressman Wolf, and Congressman Pitts.
    Mr. Findlay. Mr. Hecht, I was struck by your emphasis on 
how important it is to make systemic changes in China. I was 
wondering if you could take a few minutes and just talk about 
each of the various institutions that make up the system, law 
enforcement, trial courts, appellate courts, and then the legal 
profession. I know that is a tall order, but if you could take 
a couple of minutes on each one of those.
    Mr. Hecht. All right. Well, that is a challenging question. 
Let me start by saying that the Chinese system, in its roots, 
borrowed much from the Soviet Union.
    In its basic structure, it borrowed the Soviet idea, which 
in turn was borrowed from the French, of legislative supremacy. 
So, in theory in China, the most important legal institution is 
the legislature.
    The courts and the executive branch, as well as what is 
called the procuratorate, which is the state prosecutor but 
also has a broader watchdog function in the Chinese system, are 
all subordinate to the legislature. They are appointed by the 
legislature and they report to the legislature.
    One of the more interesting developments in China over the 
last 10 years has been the emergence of the legislature, 
particularly at the national level, but also at local levels 
into its constitutionally defined role as a significant part of 
the legal system.
    The courts are a unitary system. The Chinese do not have a 
Federal/state divide in their court system. They have a single 
system of courts, from the top, the Supreme Court, to 
provincial-level courts, to intermediate-level courts usually 
in large cities within provinces, and then down to basic-level 
courts, of which there are about 3,000 in China.
    The people's governments, as well as the procuratorates, 
are arranged similarly, from the national level, to the 
provincial level, to the sub-provincial, to the local level.
    At each of those lower levels, the pattern, 
constitutionally speaking, again, replicates that at the top. 
The people's Congress, the local legislature, is, in theory, 
the superior body and the other three are considered the 
subordinate bodies.
    The police are nested within the executive branch under the 
governments at each of these levels, though in fact the police 
have tended to have a status at least equivalent to the courts 
and to the procuratorates, and in fact have been more powerful.
    So, the status of the police in the Chinese legal system is 
something that bears a great deal of attention because the 
police have a role and a range of powers, particularly in the 
criminal justice system but also with respect to various 
administrative sanctions.
    Mr. Kumar referred to the system of reeducation through 
labor, for example, which is a police-administered sanction 
whereby people can be sent to labor camps for up to 4 years.
    Police powers are enormous in China, and this is a systemic 
problem that we really should be focusing on to a much greater 
extent than we have in the past. This is an area where, within 
China, there is a good deal of debate about whether police 
powers are too great, about whether these administrative 
detention powers should be subject to judicial control.
    This is an area where we should be paying a lot more 
attention, both in our own work as people who focus on China 
and through our government in its interactions with the Chinese 
Government.
    As far as the legal profession is concerned, the Chinese 
legal profession is quite new. As recently as 20 years ago, 
there was essentially no legal profession in China. There were 
a handful of lawyers who had been trained prior to the cultural 
revolution, most of them quite elderly, and they had had 
virtually no role, really, since the founding of the People's 
Republic in 1949.
    In the last 20 years, the legal profession has grown 
enormously. There are now somewhere between 100,000 and 200,000 
lawyers in China. That is what has occurred in the last 20 
years.
    Most of them, of course, like lawyers everywhere, are 
involved in commercial practice. But there are also lawyers now 
who handle suits against the government, lawyers of course 
involved in the criminal justice system though they face 
enormous obstacles there, and lawyers who are becoming more 
prominent as public officials. That is another respect in which 
China is quite different from the United States.
    In the legislature in China, you would be hard pressed to 
find more than a handful of lawyers, which is obviously quite 
different from legislatures in the United States. But that is 
an area where there has been a great deal of change.
    Mr. Findlay. I think my next question will take me over, so 
I think I will just stop.
    The Chairman. Go ahead. Oops. You had your chance.
    Congressman Levin, please.
    Representative Levin. Thank you very much.
    The Chairman. And I am going to have to go. If you can 
chair for as long as you can, Congressman.
    Representative Levin [presiding]. We try to squeeze a 
week's worth of work into 2 days in the House, so I am sorry 
that others could not make it. There are conference committees 
going on, etc. There is a welfare reform hearing that I will go 
to as soon as I finish. I guess we will each chair for our own 
5 minutes, which is somewhat unique around here.
    You are a particularly distinguished panel, and we deeply 
appreciate your being here. Your experiences show your 
seriousness and we are going to try to match that.
    So let me throw at you one of the challenges before us. The 
Chair talked about China as a conundrum. Now, the Mideast has 
totally, understandably, captured the news stories. When that 
is not happening, there may be more articles on China than 
perhaps any other country. These stories talk both about change 
and resistance to change, and the resistance against the 
resistance to change.
    So let me ask you, as you see the role of this Commission, 
how do we both pressure and participate in the change in terms 
of engagement? The rule of law is a good example of that, is it 
not? Because you have suggested here today that we both 
highlight the individual cases, that we use every opportunity 
to pressure the Chinese Government, if the Vice President is 
here, or otherwise.
    But also, there has been reference to our assisting them in 
the development of a rule of law there which is so sorely 
lacking. We wrestle with this all the time, how we achieve 
both, in the role of this Commission.
    And you have explained it in lofty terms, and we hope we 
will meet your expectations. We are determined to do that. So 
respond, will you, about this challenge, how we do both, 
whoever wants to start.
    Mr. Hecht. Well, I hesitate to presume to suggest how the 
Commission should----
    Representative Levin. No, no. I am asking you to.
    Mr. Hecht. My response would be, China is a conundrum. And 
I think, as someone said earlier, perhaps it was Senator Baucus 
as well, it is also not a monolith. I think it is possible to 
pursue both criticism of China for its handling of individual 
cases, as well as support for people within China who are 
trying to improve things there.
    I do not think that that has to be an either/or 
proposition. There are people within China, as you just said, 
who are supportive of change and people who are resisting 
change. There are people who are in official positions where 
they will, of course, be difficult when they are presented with 
demands with respect to individual political prisoners.
    But there are probably people in the same institution down 
the hall from them with a different set of responsibilities, 
and perhaps an entirely different set of outlooks, who are 
interested in engaging with U.S. experts on some of the very 
same issues that we are complaining about. I do not think we 
should be afraid to do both at the same time.
    Now, it may not be appropriate always to merge those 
efforts in time and space, because China is not a monolith. It 
may be best to be dealing with one set of officials in China on 
one set of issues in one way, and simultaneously be supporting 
work either through the United States Government, or oftentimes 
more effectively through non-governmental groups, with another 
set of actors on another set of issues in China.
    Representative Levin. Let us take that proposition and see 
if Mr. Kamm and Mr. Kumar want to comment on that. Do not worry 
about giving us advice; we are seeking it.
    Mr. Kumar. Individual cases are extremely important because 
these cases reflect the weakness in the legal system, as well 
as the arbitrariness by which it is being applied.
    In terms of assisting them, first of all, they should have 
political will to open up. If they are opening up for the sake 
of opening up because of criticism or because of some other 
reasons, trade privileges, whatever, it is not going to work.
    That is why this Commission should insist upon, whenever 
you meet with officials and also whenever you have any public 
documents coming out, to have two-track policies. One is, of 
course, individual cases. That is fundamental. Second, is to 
have meaningful change through legal reform.
    They had legal reform in 1997, if I am not mistaken. 
Criminal procedure law was reformed. It was much better than 
what existed for 16 years, from 1979 to 1997. But it did not go 
too far. The next challenge is, how are we going to push them 
to move forward with new challenges and new openings?
    So the short answer is, individual cases are so 
fundamentally important, but we should push for them to open up 
politically so that they can accept any recommendations that 
come from outside.
    Thanks.
    Representative Levin. Mr. Wolf, I think it is your turn. 
With all of your expertise, why do you not take over? Then Mr. 
Pitts, I think, is next.
    Representative Wolf [presiding]. Thank you, Sandy.
    Thank you all very much. I will read all of your testimony. 
I apologize for being late. I want to thank you for your work 
and for your effort.
    I do have a question, but before I ask it I want to make a 
comment. As you answer the one question, you might also comment 
on this.
    My sense is, the model for the Commission ought to be the 
Helsinki Commission, and I sense that we may not be drifting in 
that way. I think the difference is, during the days of the 
evil empire when Ronald Reagan clearly laid it out, everyone 
who went to the Soviet Union spoke out on behalf of the 
dissidents. Everyone. There were no groups that ever went to 
Moscow without raising these cases, even people who went there 
on behalf of arms control and disarmament. Everyone always 
spoke out.
    Now there are mixed messages. In fact, many of the 
Congressional delegations may give a pro forma little touch and 
a flick with regard to human rights, but it is business. It is 
business. If the business community would also add in the human 
rights element, they could do their business and, I think, make 
a tremendous difference.
    My sense is, where I think this Commission may differ, is 
the Helsinki was the model. We do not need a new model. We have 
a model. But we have to follow what worked.
    What I would like to ask you, is this. With the economic, 
not crisis, but the conditions that are taking place in China 
today, what impact do you think this will have on human rights 
and religious freedom? There is a new book out which I have not 
read, but I have a copy at home, ``The Coming Economic 
Collapse.'' I have had people reading stories of demonstrations 
at different factories.
    What impact do you think this will have? Will this 
encourage the Chinese to open up a little bit or do you think 
it will cause them to crack down? What do you think it will do 
to the conditions with regard to human rights?
    Mr. Kamm. I think, Congressman Wolf, both things will be 
happening at different times and in different places. Right 
now, in the northeast we have a particularly serious situation.
    I mentioned in my statement Yao Fuxin. This is a case I 
commend to all of your attention. He is the principal labor 
organizer of the Liaoyang strikes. He has been detained and he 
has now been formally arrested. The international community 
needs to raise his case, raise it frequently, and very 
seriously.
    I agree with you entirely. There is no need for another 
model. The model should be the Helsinki Commission. When I 
spoke to this in November 1995, that is what I said. I could 
not agree with you more. I foresee a day when this Commission, 
as my testimony is entitled, is an arsenal of human rights.
    Every Congressional group that goes to China and beyond, as 
I mentioned, if there is a sister state/province relationship, 
if State legislators are going, they should turn to this 
Commission for an up-to-date list of prisoners in that 
location.
    I think every Member of Congress that goes to China should 
be armed with prisoner lists and should be briefed before he or 
she goes. Sometimes things are said to members--by Chinese 
officials--and they do not have the background. They need to 
know what we know about the cases before they go.
    So, I agree with you. That is what I see as the promise of 
this Commission, a very active Commission. I think you have 
already the standing with the Chinese Government to take that 
up, and you should do it. You should do it as quickly as 
possible. You should not miss any opportunity to present to the 
Chinese Government the lists of the names of people who are 
imprisoned for their religious and political beliefs.
    Mr. Hecht. You are right that China is going through a very 
complicated economic transition. It is an economic transition 
that has winners and it has losers. There are large numbers of 
winners. Many, many people in China live far better now than 
they did 20 years ago. We all know that.
    But there are losers. The workers in state-owned 
enterprises are losers, and it is entirely possible, as WTO 
begins to bite, that there will be many other sectors of the 
Chinese economy where there are more losers. I think that the 
Chinese Government is worried about that. When the Chinese 
Government gets worried, it tends to get tough.
    I think there is a considerable likelihood that, in the 
near term, particularly in response to concerns about the 
impact of the WTO in China, which is very risky, we will 
actually see tougher tactics against people with economic 
grievances. I think that is entirely right.
    I also agree entirely with your other point. I think that 
human rights has to be viewed by people in this country as 
something that is vital to all of our interests in China. It is 
not something that should be separated or ghettoized.
    It is as important to our strategic concerns and our 
economic concerns as it is to our, more explicitly, rights 
concerns. I think that it is important that people in China at 
all levels of the government get that message.
    I think it is important, not only so that they understand 
the depth of our commitment on those issues, that it is not 
just some particular part of our bureaucracy or some fringe 
group in our society that cares, but in fact this is a deeply 
and widely held view.
    I also think it is important in the Chinese context, 
because I think that, just as sometimes human rights has tended 
to be separated and ghettoized in our government, it has been 
separated and ghettoized in the Chinese Government.
    I think that when people go to China to talk about trade 
issues or investment issues and they are meeting with people on 
the Chinese side whose responsibilities lie in that area, they 
should be making them aware of how important in our own history 
and our own economic development the question of rule of law, 
and rights, and reliable legal institutions has been.
    In that way, we build the constituency within China for 
rule of law and human rights rather than allowing them to 
continue to think that this is just some parochial concern of 
some people in a handful of institutions. So, I agree, that is 
very important.
    Mr. Kumar. As a human rights organization, we appreciate 
your comment, Congressman Wolf. We have always admired your 
work in terms of human rights around the world.
    The Helsinki Commission model is something we expected this 
Commission to follow. That is what we all thought when the 
Commission was set up. We want the Commission to take the 
fundamental issue of human rights in every step they take.
    Now, with China, the interest of business has basically 
overtaken other interests between the bilateral relationships.
    On that note, I would like to congratulate Mr. Kamm for 
being a businessman, and also doing human rights work. Mr. 
Kamm's work should be the model for other business leaders and 
other business organizations.
    Representative Wolf. I agree.
    Mr. Kumar. Coming back to the issue of what will happen, 
whether there will be a clamp-down or there will be opening 
when there is economic instability, the only thing we can say 
is to look at other examples.
    The other examples in other countries point out that when 
there are economic difficulties or other issues, then 
governments tend to clamp down. That is why rule of law is 
fundamentally important.
    When there is a lack of the rule of law, governments can 
clamp down with ease. As I mentioned in my opening remarks, the 
new law that came into effect after September 11, in the name 
of anti-terrorism in China, is the one that they are going to 
use against anyone who raises their voice against the 
government's authority.
    Now it is only limited to the Muslim province of Xingjiang. 
It will not take long to extend it when they need it. That is 
why we have to raise our concerns at this moment about that 
law, as well as other laws.
    Thank you very much.
    Representative Wolf. Thank you very much. Thank you.
    You are going to have to chair. There is a vote on. There 
is a vote on in the House.
    Mr. Findlay. Congressman, I have enough difficulty running 
my department. I would not deign to chair a Congressional 
committee. But I think Mr. Pitts is next.
    Representative Pitts [presiding].Well, I will ask a 
question and then I will have to go vote as well.
    Thank you very much for your testimony. I, too, will read 
it.
    Mr. Kamm, you mentioned that it is very important to get 
information in writing from Chinese authorities regarding 
specific prisoners. As we have discussed, you have been very 
successful in your tactics.
    As I understand it, you are suggesting that the Commission 
or someone compile a list of all of the sister relationships 
that may exist. There may be hundreds, state-to-state, county-
to-county, city-to-city, hospital-to-hospital, school-to-
school, university-to-university, whatever. Then this data base 
could be used to pull out a certain number of prisoners, say, 
for a certain province or a certain city.
    Then you would give this data base or this list to the 
appropriate officials, Congressional delegations going over or 
hosting, mayors, or whatever, school officials. What, would you 
elaborate, is the culturally acceptable way of submitting lists 
or requesting information? Can you elaborate on that?
    Mr. Kamm. Well, this gets into, sort of, tradecraft here a 
little bit, again.
    Essentially, at the outset of the relationship, you make 
clear that, as part of this relationship between a, say, State 
and a province, human rights is very much a part, from the 
American side, because we are very interested in human rights. 
We make that very clear to start out from that point of 
departure.
    Then once you have made that very clear, you take the 
approach that, well, for us to have a conversation about human 
rights, we need to have accurate information on cases. Law is 
made in the courts every day through cases, so we view legal 
developments, law, human rights, through the prism of cases.
    Therefore, we have taken with us a list of cases that we 
would like to get information on in writing from you, and based 
on that information, we would like to have a dialog with you on 
these cases and see whether or not we can make some progress in 
resolving these issues.
    That is, more or less, the approach I would take. There is 
no substitute for good preparation. I go every quarter to 
Beijing and I carry prisoner lists, and I have thick files 
backing up every name that I ask about. There is just no 
substitute for that.
    So, I would recommend that this Commission can, in fact, 
perform that very important function. Before members go, you 
provide them with the information and you provide them with 
briefings. I would be delighted to help the Commission in any 
way you see fit to assist in that regard.
    We have seen in the last year a change on the part of the 
Chinese Government. A year ago, they were not giving 
information in writing in response to government lists. They 
were doing so with me, but they were not with government lists. 
Now they are replying, not just to American lists, but to 
British and European lists.
    We have got to work with our allies as well in coordinating 
this flow of information and effective advocacy. If someone is 
working hard on one case, let them work on it, keeping us 
advised. Work hard on another case. We need to do a better job 
of that. Those are just some ideas.
    Representative Pitts. All right. How important is 
relationships in the culture? Would you comment on, what is the 
biggest fear of the business community--you can speak to the 
American business community, if you like--about getting 
involved in something as basic and simple as requesting a 
prisoner status report, even if it is done as a group, through 
such a group as, say, the American Chamber of Commerce, so that 
no one business needs to stick its neck out. What is the main 
problem there?
    Mr. Kamm. Well, if I knew the answer to that I would be a 
much happier person. I have been trying to get the business 
community to do what I consider to be very non-threatening and 
very basic human rights work for a long time.
    Jonathan has just said that he, too, thinks it would be a 
great idea. I guess later we will have a conversation as to how 
we might convince them to do so. They have resisted it at every 
turn. They have refused to get involved in this respect.
    Why? Various reasons are put forward. They are afraid that 
the Chinese will retaliate against their business. I have made 
it clear that, in 12 years of doing this work, not once has a 
Chinese Government official threatened my business, but for 
some reason, business people do not want to believe that.
    There is the issue of them not knowing enough. They say, we 
do not know what the facts are. That, too, is an obstacle, I 
think, that is easily overcome and the Commission can help 
there.
    But I have to tell you, as someone coming out of the 
business world, more and more as I work in this area I think it 
is a matter of corporate culture. That is a big part of it.
    I come from a generation of people going overseas as 
expatriate businessmen, and the first thing you are told before 
you take an assignment overseas by a big corporation, is stay 
out of local politics. That is the first thing you are told. I 
am afraid that I am viewed in the corporate world as someone 
who has violated that number one rule. I have never accepted 
that.
    I am afraid, for the most part, business people, especially 
those beyond a certain age, simply, it runs against corporate 
culture to involve yourself on behalf of the people in the 
country where you are doing work.
    It is a very sad thing. And I really admonish my remaining 
friends in the business community: Think. Think about the 
future. If you are running a Ford Motor Company plant in South 
Africa today and someone in your plant asks whether you think 
Nelson Mandela should have been imprisoned for 30 years, I 
suggest you say no. That would not have been your answer 25 
years ago. Do not think they do not understand that.
    Some day, business people--well, let me put it in a 
positive way. If, in fact, they are willing to intervene on 
behalf of these people, their businesses will, in fact, be 
rewarded some day, in my opinion.
    Representative Pitts. Thank you.
    Do any of the other witnesses want to comment? Mr. Kumar.
    Mr. Kumar. Yes. Amnesty International, as an organization, 
never takes a position on sanctions. We do not oppose or 
support.
    But we always urged the business community, individual 
business leaders, to raise cases and issues with respective 
governments where they do business. Some have, but many 
refused.
    The fundamental issue with China was that, until PNTR 
[permanent normal trade relations] became permanent, the 
business community felt that human rights was being used to 
block their permanent relationship. So they took the opposite 
view during that time and they are still in that mode, saying 
that human rights are against us, so we should not get 
involved. We should educate them. That is our job, and 
everyone's job that goes over in China.
    Also, they should, by their own self-interests, raise these 
issues. If the local government is going to be unfair and 
brutal against their own citizens, it will not take long to go 
after their factories and their employees.
    Human rights are not a political issue. Human rights is not 
a political issue at all. It is about fairness and decency. It 
transcends beyond borders. It transcends beyond cultures. It 
transcends beyond everything. It is fundamental, basic human 
dignity and fairness. That is what human rights is all about.
    I like to compare this situation to Afghanistan. There are 
some corporations that had dealings under the Taliban. We could 
not believe what some of the women executives would come and 
discuss with us, defending Taliban policies at that time. I 
hope the business community that is doing business in China 
will not go that far to defend something that is against their 
conscience.
    So that is the challenge, and we all should face that 
challenge. Thanks.
    Representative Pitts. Thank you.
    I think it also should be said that one of the selling 
points from the business community for PNTR, MFN [Most-Favored-
Nation], or NTR, whatever it was called in a given year, was 
that more engagement, more involvement by the business 
community in China would result in improved human rights. That 
was one of their selling points. I think they should be 
reminded of that.
    I will turn the hearing back over to you for a second 
round. Thank you very much.
    Mr. Findlay [presiding]. I find myself in the position that 
every Executive Branch official dreams of, controlling a 
Congressional hearing room by myself.
    But because of the votes going on in the Senate and the 
House, I think it is probably best that I just thank our 
distinguished panel for being here today and for answering our 
questions so forthrightly. The testimony and the answers were 
enlightening, and inspiring as well.
    So, on behalf of Chairman Baucus, I will declare this 
hearing closed. Thanks.
    [The prepared statement of Congressman Bereuter appears in 
the appendix.]
    [Whereupon, at 3:40 p.m., the hearing was concluded.]
                            A P P E N D I X

=======================================================================

                    Prepared Statement of John Kamm

                             april 11, 2002
    I was an early advocate of a Congressional Executive Commission to 
monitor China's human rights situation, speaking in favor of it to 
Congress' Helsinki Commission in November 1995, so naturally I am more 
than a little pleased to appear before you today. To examine China's 
compliance with international and bilateral human rights treaties and 
agreements and to make recommendations for our country's human rights 
policy toward the People's Republic of China, President Bush and the 
Congressional leadership have assembled a knowledgeable and diverse 
group of commissioners, all of whom have taken an active interest in 
US-China relations, and all of whom have strong beliefs on how best to 
pursue our national interests. I am grateful to Senator Baucus and 
Congressman Bereuter for the strong support they have given me and my 
work these past several years. The commission is guided by two fair-
minded men of high integrity, and I have no doubt that this body will, 
under their leadership, play an important role in identifying effective 
ways to address the serious situation we confront in China today.
    Several members of the commission, including Senator Brownback and 
Representatives Leach and Pitts--have written letters to the Chinese 
government backing my efforts to obtain information on, and the early 
release of, prisoners whose cases I've taken on. I am especially 
grateful to Congressman Pitts for his help pressing the Chinese 
government on the case of Bishop Su Zhimin. I have benefited from 
Congresswoman Pelosi's advice and concern for my work over many years. 
I am fortunate to have someone like Congresswoman Pelosi, a recognized 
leader in the effort to promote human rights in China, representing the 
district where I live and where my foundation is based.
              prisoner releases and human rights diplomacy
    I am especially proud to be testifying before a body that includes 
as one of its distinguished members Congressman Frank Wolf, with whom I 
was honored as a recipient of the Eleanor Roosevelt Award for Human 
Rights this past December. Congressman Wolf and I have not always 
agreed on what policy should be adopted to deal with violations of 
human rights in China, but on one thing I believe we are of one mind. 
In formulating and implementing our human rights policy toward China, 
the United States must place a very high priority--I would say the 
highest priority--on securing the release from prison of individuals 
detained for the non-violent expression of their political and 
religious beliefs, and until the day of their release, the most humane 
treatment that the prison system affords.
    This position is not, I'm sorry to say, popular with members of the 
American business community in China, nor is it embraced by some who 
are active in the field of human rights. Some activists call working 
for the release of prisoners ``humanitarian work'' and distinguish it 
from ``human rights work.'' Getting a few people out of prisons is fine 
for those released and their family and friends, but such a result does 
nothing to change the system that put them in prison in the first 
place, critics say. One prominent human rights activist has even said 
that, because the Chinese government is sometimes able to manipulate 
the process of negotiation and release to score public relations 
points, working to free prisoners actually strengthens the regime's 
ability to arrest other dissidents. Pressuring the Chinese government 
is often compared to the odious business of ``hostage politics,'' and 
those who engage in this work are sometimes referred to as ``hostage 
negotiators.''
    Far from being a side show, working to secure the release of 
political and religious detainees is the highest calling of human 
rights activism. I believe that the most important thing the United 
States can do to bring about systemic change in China is to work for 
the release of people imprisoned for their political and religious 
beliefs, people who are making great sacrifices to bring respect for 
human rights and rule of law to China.
    Let me state the obvious: Outsiders, with the exception of a few 
committed and disciplined exiles, will not be the principal catalysts 
for change in China. The agents of change will be found among the 
people of China. They are democracy advocates like Xu Wenli, labor 
organizers like Yao Fuxin, entrepreneurs like Rebiya Kadeer, and brave 
clergy like Bishop Su Zhimin and his Auxiliary Bishop An Shuxin. They 
are scholars like Tohti Tunyaz and journalists like Jiang Weiping who 
dare to expose corruption and otherwise speak truth to power. To them 
belong the pain and glory of bringing change to China, but they can do 
little to reform the country if they are locked in prison cells 
together with tough and hardened criminals.
    It was international pressure that saved the lives of Nelson 
Mandela, Kim Daejong, Lech Walesa and many others who eventually 
brought democracy and social justice to their countries. Yesterday's 
imprisoned dissident is today's leader of a democratic and free 
society. Does anyone believe that by passing another resolution or by 
running a few more seminars to train judges or by holding another legal 
exchange in which the sides do not discuss actual violations that more 
can be accomplished than what is accomplished by freeing from prison 
those who know the country best, who have suffered for their beliefs 
and who have thought long and hard of ways to bring about a better 
China?
    When a government is forced to release its grip on a prized 
prisoner, a current of electricity that is hope runs through the 
community of those who yearn for freedom and justice. And that hope 
inspires and emboldens others who know that, whatever happens, they 
will not be forgotten. Striking workers, like those in Liaoyang and 
Daqing, make securing the release of their leaders a principal goal of 
their movements. Should we do less?
    A man or woman of faith who walks out of the dungeon that once held 
St. Paul is living proof of God's saving grace. I am firmly of the 
opinion that the explosion of religiosity in China in the mid-to-late 
1990's was at least in part brought about by the successful campaigns 
to win the release of Catholic clergy and house church preachers in 
1992 and 1993. I have seen photographs of the triumphal return of 
jailed bishops to their villages. On the faces of the faithful one sees 
expressions of rapture, the awe of being in the presence of living 
saints. Many of these clergy were sent back to jail, some within months 
of their release, but in the time they enjoyed freedom they said 
Masses, administered the sacraments including the ordination of 
priests, established seminaries and sent out of China testimonies on 
which we rely for a picture of what is going on in that great but 
wounded country.
    Prisoners are first and foremost human beings. Prisoners have 
rights--the right to due process, to medical care, to regular family 
visits, to be free from physical and mental abuse--and getting the 
Chinese government to recognize and better protect these rights 
contributes to greater respect for rule of law and a greater ``rights 
consciousness'' which must gain hold if a better rights environment is 
to be achieved. Xi Yang was a Hong Kong journalist imprisoned for 12 
years for leaking State secrets. As a critically important part of the 
campaign to win his release, we established that a prisoner's family 
has a right to a copy of the verdict, even in cases involving State 
secrets. It was while working on the Ngawang Choephel release that we 
uncovered the 1990 regulations on medical parole that allow for the 
release of prisoners who have contracted ``serious and chronic'' 
illnesses in prison, and who have served one-third of their terms. 
Chinese officials with whom I work now freely make reference to the 
``one-third rule,'' the application of which may well lead to more 
releases in the future.
    One of the most popular books for sale in Chinese legal bookstores 
these days is a thin volume entitled ``Yi An Shuo Fa,'' which 
translates as ``When speaking of the law, look at cases.'' Although the 
Chinese system does not recognize the binding nature of precedent, it 
is clear to me that precedent established in one case can in fact play 
a role in the resolution of other cases. When we uncover ways to help 
one prisoner win freedom, opportunities arise to use what we learn to 
help others win freedom. Doing humanitarian work cannot be separated 
from doing human rights work. They are both about building respect for 
the rule of law.
    By focusing our efforts and resources on individual cases, the 
United States sends a clear message about the value of the individual, 
and the priority we place on the rights of the individual. As I am fond 
of telling my Chinese interlocutors, you can't talk about human rights 
without talking about human beings. The problem with our human rights 
diplomacy in recent years is not that we've been too focused on winning 
prisoner releases but that we haven't been focused enough. We shouldn't 
be getting out of the ``prisoner list business,'' as one senior 
American diplomat once suggested to me, but rather investing more time 
and resources in order to achieve more and better results.
            prisoner releases: assessing china's motivations
    Before reviewing recent developments in the effort to secure the 
release and better treatment of political and religious detainees, I'd 
like to spend a few moments examining the motivations of the Chinese 
government in making prisoner releases. This is a subject I am 
qualified to speak about. Hardly a week passes that I'm not engaged in 
several conversations about prisoners with officials of the Chinese 
government.
    It is often said that the Chinese government makes releases of 
high-profile prisoners to score public relations points and otherwise 
burnish its image. This was decidedly the case in the early 1990's, 
when Beijing sought to influence such things as the debate on MFN or 
the decision on the 2000 Olympics. It is not the case today, however. 
Officials with whom I work do not as a rule want publicity.
    There are at least two reasons for this. First, there is little 
evidence to suggest that making prisoner releases has in fact improved 
China's image in the United States. Soundings taken by Gallup indicate 
that China's ``favorable versus unfavorable'' ratings have shown little 
change for several years, and when ups or downs take place, they seem 
to take place for reasons that have little to do with the arrest or 
release of individual dissidents (e.g. the downing of the EP3 
surveillance plane or the accidental bombing of the Chinese embassy in 
Belgrade). Roughly 45 percent of the American people have a favorable 
impression of China, roughly 45 percent have an unfavorable impression, 
and 10 percent are undecided. When asked by Gallup if the events of 
September 11 had changed their view of the crackdown by the Chinese 
government on Uygurs in Xinjiang, the great majority of Americans 
replied that their opinions had not changed, and that they disapproved 
of the crackdown. Every poll on the subject confirms that Americans 
have a poor opinion of the Chinese government insofar as its record on 
human rights is concerned, and a prisoner release here or there hasn't 
changed that opinion.
    The second reason why Chinese officials don't want publicity about 
prisoner releases is that many senior members of the party and 
government are opposed to setting dissidents free. They view the 
release of a high-profile opponent of the regime as a sign of weakness 
and even of humiliation. They oppose releases as craven concessions to 
foreign powers. Sometimes, a prisoner release will run counter to an 
``official line'' that the government is trying to take. In January 
2001, I announced the release of Yu Zhijian, a Hunan teacher, sentenced 
to life in prison for throwing ink on Chairman Mao's portrait in May 
1989, on whose case I had worked for many years. Around the time I made 
the announcement, the Chinese government was reacting to the 
publication of The Tiananmen Papers by stressing that the verdict on 
the June 4 demonstrations would not be changed. How, foreign 
journalists asked at a regular Ministry of Foreign Affairs briefing, 
could the regime on the one hand say that the verdict would not be 
changed and on the other release one of the best known dissidents 
sentenced to prison for his role in the protests? Officials with whom I 
had worked on the Yu case were criticized, and provision of prisoner 
information to me was suspended for nearly 6 months.
    While the Chinese government has for the most part given up using 
prisoner releases to improve its image with the general public, it will 
sometimes release prisoners as gestures aimed at foreign leaders and 
legislators, often in the run-up to a visit to China by a foreign 
politician or a visit to a foreign country by a Chinese leader. It also 
occasionally happens that prisoner releases are made to hint at a 
possible change in domestic or foreign policy. Thus, prior to 
negotiations with the Vatican on the normalization of relations in 
1993, a number of clerics were set free to create a better atmosphere 
for the talks. I am watching carefully to see if recent developments 
regarding Tibetan prisoners might presage a change of policy toward 
Tibet. Thus far, I don't see it.
    Sometimes releases take place in response to a specific request for 
information from an organization or individual with ``standing'' in the 
eyes of the Chinese government. China is a member of the International 
Labor Organization, and is required to respond to complaints filed by 
the ILO's Committee on Freedom of Association. Information on parole 
and sentence reductions for Chinese labor leaders suggests that the 
Chinese authorities released them and reduced the sentences of others 
shortly before replying to complaints made by the CFA.
    Years of hard work building credibility and trust have resulted in 
my having ``standing'' with the Chinese government to inquire about 
political and religious detainees. I am determined to use this position 
to help as many prisoners as possible, for as long as I am able to do 
so. I regret that leaders of the American business community, men and 
women of considerable power and influence in China, have thus far 
refused to use their standing with the Chinese government to press for 
the release of those jailed for exercising the rights of free speech 
and association. These are rights that business people themselves take 
for granted, and on which the success of their own businesses in large 
measure depend.
    It is true that, if the Chinese government is worried about losing 
a trade privilege or if it fears losing a vote in the United Nations on 
its human rights record, it will seek to influence the outcome by 
making gestures like releasing prisoners or signing human rights 
treaties. But if it is confident of victory, the opposite is the case. 
Rather than making gestures, Beijing will hold off making prisoner 
releases and will instead act defiantly, thereby demonstrating to its 
people that it is standing up to foreign pressure.
    Releases will be made if they help the government achieve a 
strategic objective. Even before the September 11 attack, Beijing had 
made a strategic decision to work for better relations with the United 
States. The events of September 11 greatly reinforced that decision. 
The Chinese leadership knows very well that gestures in the area of 
human rights will be welcomed by leaders in Washington, including 
Members of Congress. The decision to improve relations with the United 
States--a decision that has manifested itself in many ways--is the 
principal reason why the Chinese government has carried out releases in 
recent months (e.g. the release on medical parole of Li Shaomin, Gao 
Zhan, Wu Jianmin, Ngawang Choephel and, most recently, Jigme Sangpo). 
We need to take advantage of the Chinese government's desire to build 
better relations with the United States by pressing Beijing to release 
more prisoners, and to reduce the sentences or otherwise improve 
treatment of those still held. The time for action is now.
    This last point needs to be stressed. What my interlocutors call 
``cooperation in the area of human rights'' is heavily dependent on the 
State of US-China relations. When relations are good or improving, 
Beijing is more likely to release prisoners than when relations are bad 
or deteriorating. My own work has been greatly affected over the years 
by disputes between Washington and Beijing over the perennial issue of 
Taiwan.
                          recent developments
    The Bush Administration is engaged in one of the most intensive 
efforts ever mounted by an American administration to win the release 
of political and religious detainees in China. Assistant Secretary of 
State Lorne Craner has made it clear to his Chinese counterparts that 
he is not interested in participating in a ``talk shop,'' but that he 
expects concrete results from the official human rights dialog. By 
results he means plentiful and accurate information on cases, and the 
release and better treatment of prisoners. In October, he obtained from 
his Chinese counterparts detailed information on 68 of 74 prisoners 
about whom he had submitted enquiries, and the unprecedented Chinese 
response has provided us with a roadmap for working on a number of 
important cases. It is no coincidence that the first name on Mr. 
Craner's July list was that of Ngawang Choephel, who was released and 
flown to the United States on January 20. In a decisive break with 
tradition, Ambassador Clark Randt, encouraged by Congressman Wolf, 
publicly called for the release of specific individuals, including 
Bishop Su Zhimin, Xu Wenli, Liu Yaping, Li Guangxiang and Jigme Sangpo 
during a speech to a Hong Kong audience on January 21. It is no 
coincidence that the last two prisoners--a Bible ``smuggler'' for whom 
President Bush showed special concern and China's longest serving 
counterrevolutionary--were set free in the weeks following the 
Ambassador's speech.
    President Bush, on his visits to Shanghai and Beijing, has called 
for more religious freedom, and as part of that call he has urged the 
Chinese government to release leaders of unauthorized religious groups. 
The administration has breathed life into the proposal, made when 
President Clinton visited Beijing in July 1998, that China review the 
sentences and release from prison people serving sentences for 
counterrevolution. According to local statistics obtained during my 
visit to China a month ago, I estimate that there are still more than 
600 counterrevolutionaries in China's prisons. They include people like 
Zhang Chengjian, who has served more than 18 years for attempting to 
form a political party, Sun Xiongying, who gave pro-democracy speeches 
and defaced a bust of Mao during the June 1989 demonstrations, Ngawang 
Oezer, sentenced in 1989 to 19 years in prison for translating and 
distributing the Universal Declaration of Human Rights in Tibetan, Liu 
Jingsheng, who has served more than 10 years for trying to establish an 
independent trade union, and Han Chunsheng, sentenced in 1996 to 8 
years in prison for writing letters to the Voice of America.
    Members of the Commission, including Senators, Congressmen and 
Congresswomen, and representatives of the Administration, have been of 
great help to me and my foundation as we pursue our unofficial dialog 
with the Chinese government on prisoners. We have been focused on 
gathering information on lesser known prisoners, some of whom--like Li 
Jingdong, a recently released democracy activist in Fujian--we've found 
through our research into official Chinese publications. On my last 
trip to Beijing, I was given detailed information on the fates of five 
Tibetan farmers sentenced in 1992 to long terms for 
counterrevolutionary propaganda and incitement. Reflecting the 
generally harsher treatment meted out to Tibetan prisoners, three of 
the five are still in prison, serving their original sentences. (One of 
the prisoners was released on medical parole, and one died while in 
prison.) Their names will start appearing with more frequency on lists 
submitted to Chinese officials by the American government, and by the 
governments of other countries with whom we have developed cooperative 
relationships.
                   the prisoner information registry
    The Omnibus Appropriation Act of 1999 mandated the establishment by 
the State Department of a Registry of Information on Chinese Prisoners. 
Little was done to create this registry until Assistant Secretary 
Craner, who is a valued member of this commission, took up his 
position. He has made the creation of the registry a matter of top 
priority, and I am honored and pleased to have assisted him on this 
project. Two days ago, I presented to Mr. Craner the first fruits of 
our labor--two data bases that together contain more than 6,000 names 
of individuals, with supporting details, believed to have been detained 
for political or religious reasons. (We have included in the data base 
the names of detainees we know or believe to have been released, but 
who likely remain under surveillance or endure other kinds of 
restrictions.) One data base contains the names of more than 4,000 
detainees about whom non-governmental organizations have obtained 
information from a variety of unofficial sources. The other data base 
contains the names of more than 2,000 detainees whose existence has 
been revealed in officially authorized Chinese publications.
    I am especially proud of the work my colleagues at Dui Hua have 
done in uncovering the names of hitherto unknown detainees. We have 
surveyed thousands of documents, amassing names of detainees, 
statistics on political crime, and laws and regulations that govern the 
treatment of prisoners, unauthorized religious groups and national 
minorities. About 80 percent of the names that we've found in nearly 3 
years of archival work are of detainees whose names do not appear in 
any governmental or non-governmental data base outside of China. We 
have submitted roughly 450 of these names to the Chinese government, 
and asked for its help in finding out their present circumstances.
    I know that Assistant Secretary Craner is eager to provide to this 
commission the data base that Dui Hua has created and which Dui Hua 
will be continuously updating and improving. One of the jobs of this 
commission is the establishment of its own prisoner registry, and for 
this task the State Department's Registry will be of considerable 
value.
    Prisoner registries, accessible on-line, will be valuable tools in 
the effort to secure the release of people detained for the expression 
of their political and religious beliefs. It is now possible to 
generate a multitude of prisoner lists containing the most current 
information, each for a specific event--a trip to China by a 
Congressional delegation (separate lists can be generated for each city 
visited), the participation of an American delegation in an 
international human rights forum, the preparation of reports on human 
rights conditions in China, the visit of a senior Chinese leader to the 
United States. Lists of prisoners eligible for medical parole, or good 
behavior parole, can be compiled. Lists of imprisoned labor leaders, 
house church pastors and Catholic priests, journalists and scholars can 
be generated and handed over by American groups meeting with their 
Chinese counterparts.
    In another time, and for another purpose, our country was an 
``arsenal of democracy.'' This commission, by marshalling resources and 
fashioning tools made possible by advances in technology, and by 
undertaking forceful advocacy on behalf of political and religious 
detainees, can become an ``arsenal of human rights,'' a vital source of 
support for those inside and outside China working to bring about 
respect for human rights and rule of law. The Dui Hua Foundation stands 
ready to help this commission in fulfilling its promise.
    Thank you for inviting me to participate in this important hearing.
                                 ______
                                 

                  Prepared Statement of Jonathan Hecht

                             april 11, 2002
    Thank you Senator Baucus, Congressman Bereuter, and the other 
members of the Commission for inviting me to speak here today.
    I have been working on legal reform and human rights in China for 
the past 12 years. I have done this in a number of different 
capacities. For 4 years, as a Program Officer in the Beijing office of 
the Ford Foundation, I made grants in China to support research and 
advocacy on human rights and related legal issues, to strengthen legal 
education and training, to promote village elections and other forms of 
popular participation, and to establish China's first nongovernmental 
legal aid centers. I have been an adviser to the United Nations High 
Commissioner for Human Rights on how to develop its new program of 
assistance for Chinese legal reform. I have been an analyst and 
consultant on Chinese legal developments for human rights groups here 
in the United States. And in 1999, I helped found The China Law Center 
at Yale Law School, where in addition to teaching and conducting 
research on Chinese law, we are developing and carrying out cooperative 
legal reform projects between United States and Chinese legal experts, 
many of them with important human rights implications.
    As Congress recognized in establishing this Commission, it is 
vitally important that China make progress on human rights. This is 
important first and foremost for Chinese themselves, who have long 
lived under political systems that denied them fundamental freedoms and 
are now navigating a difficult transition toward a market economy and, 
hopefully, a more open society. But it is also important for the rest 
of the world. China's emergence as a global power is one of the most 
important geopolitical events of our lifetimes. It is essential that 
the China that emerges from this process is one that respects 
individual liberties and its internationally binding commitments on 
human rights. Progress on human rights in China is also vital to the 
United States. Our relationship with China is one of our most important 
bilateral relationships. It cannot be truly cooperative until the human 
rights situation in China improves.
    Based on my experiences over the last 12 years, I believe that 
legal reform can help foster respect for human rights in China. Prior 
witnesses before this Commission have described the progress that China 
has made in developing its legal system since 1978, as well as the 
great deficiencies that still exist. As their testimony has shown, law 
is playing a vastly expanded role in China today. Whereas under Mao law 
was viewed solely as a ``tool of the proletariat dictatorship,'' it is 
now being called upon to play multiple roles in economic and social 
life, including defining rights and establishing institutions and 
procedures for their protection. In many respects Chinese law still 
falls far short of international human rights standards. We see this 
every day in the Chinese government's use of the legal system to 
suppress political dissidents, religious groups, labor activists, and 
many others. However, as paradoxical as it may seem, law is 
simultaneously the principal medium through which Chinese are engaging 
in debate and experimentation about human rights and the closely 
related issues of the predictability, transparency, and accountability 
of State action.
    The increasingly explicit human rights dimensions of Chinese law 
are reflected not only in theory but also in a range of legislation 
adopted since the late 1980's. Some of the most important legislation 
has been in the area of administrative law, which seeks to guide and 
even limit State power in China's increasingly market-oriented society. 
The 1989 Administrative Litigation Law created the first procedural 
basis in Chinese history for private parties to seek judicial review of 
the acts of State agencies and officials. This was followed in 1994 by 
a statute governing compensation for damages resulting from illegal 
State actions and in 1996 by the Administrative Penalties Law, which 
seeks to strengthen procedural safeguards for persons subject to 
administrative sanctions. Over the course of the early 1990's, China 
also adopted a series of new laws on the rights of traditionally 
disadvantaged groups such as women, children, and the handicapped. The 
protection of human rights has even become a legitimate objective in 
highly sensitive areas such as criminal justice, where efforts have 
been made to curb police powers of detention, enhance the role of 
defense lawyers, and make trials more open and fair.
    These new laws contain serious flaws in conception and face many 
obstacles in implementation. Reformers within China are working to 
highlight these problems and to press for further change. In the 
meantime, Chinese themselves are making increasing use their expanded 
legal system. The number of cases in the Chinese courts, including 
successful suits against the state, has risen dramatically in the last 
decade. In addition, new groups have emerged to advocate for improved 
legal protection of rights, often through legal aid centers for women's 
rights or administrative litigation or the environment. As this shows, 
legal reform and other developments in China are creating increased 
rights consciousness and higher expectations for the legal system. This 
is a very important trend, for law should not only foster respect for 
human rights. It should also be a means by which individuals can demand 
respect for human rights.
    Another recent trend in legal reform in China with important 
implications for human rights is the increased focus on structural 
reform. With greater use of law to order economic and social affairs 
and protect rights, more attention is being paid to the institutions 
necessary to make that law work in practice. In the last few years, 
recognition of the seriousness of the problems legal institutions face 
in China (including corruption, incompetence, and outside interference) 
has triggered widespread interest in ``judicial reform.'' Encompassing 
prosecutors, police, and lawyers, as well as the courts themselves, 
``judicial reforms'' adopted or under consideration include increasing 
the transparency of legal proceedings, restructuring the relationship 
between the courts and local governments to reduce interference in the 
judiciary, modifying the internal structure of courts to give trial 
judges more power, allowing lawyers to play a more active role on 
behalf of their clients, and generally broadening the role of courts in 
adjudicating disputes, including suits against the government. These 
reforms touch on fundamental and often sensitive issues, including the 
relative independence and power of different institutions. As such they 
are complex and controversial and their implementation has sometimes 
been partial at best. But the fact that they are now being considered 
and debated shows that legal reform in China has reached a new stage of 
potentially great significance for the protection of human rights.
    In addition, as law has become more central to life in China, the 
resources for further legal reform have become stronger. Whereas China 
had only two functioning law schools at the end of the Cultural 
Revolution, today it has more than three hundred. The scholars at these 
law schools and at legal think tanks represent a tremendous source of 
intellectual talent and reformist energy. In the last 10 years, Chinese 
legal scholars have pioneered work in human rights theory and 
constitutional law, established China's first public interest law 
centers, and spearheaded legislative advances in criminal procedure and 
administrative law. Following China's signature of two major 
international human rights treaties in 1997 and 1998, many of them are 
now openly advocating further reforms to bring Chinese law into 
conformity with international standards. Two decades of legal reform 
have likewise profoundly altered China's legal professionals. While 
problems of judicial corruption and incompetence remain quite serious, 
judges in China today are far better educated and more sophisticated 
than 20 years ago, especially at higher levels of the system. The 
transformation of the bar has been even more dramatic. Whereas China 
had less than 2000 lawyers in 1978 and only 30,000 as recently as 1990, 
by the late 1990's the number had topped 100,000. In the course of 
these developments, the old concept of the interchangeable ``political-
legal cadre'' has given way to a stronger sense of the distinctive 
institutional interests and outlooks of judges, prosecutors, and 
lawyers. Together with greater awareness of the way in which their 
foreign counterparts work, this has stimulated important reforms, 
especially in criminal cases, to differentiate more clearly among their 
respective roles and thereby increase the transparency and fairness of 
the legal system.
    The acceptance of human rights as a legitimate objective of the 
legal system, the growth of legal consciousness, the increasing 
emphasis on structural reform, and the emergence of a large number of 
sophisticated legal experts committed to rights--these are all 
significant advances that mean legal reform in China can and will 
continue to foster respect for human rights. But we must also honestly 
recognize that law as a force for change in China has real limits: new 
legislation is often vague and leaves too much discretion to lower-
level officials; implementation is often incomplete and founders for 
lack of complementary reforms; the skills and integrity of legal 
professionals are often suspect. Moreover, while modern law carries 
with it values of rights, predictability, and accountability, it tends 
to reflect changes in society as much as it drives them. Fostering 
respect for human rights in China will thus depend on many other 
factors besides just law, especially given China's socialist legacy 
(which made individuals dependent on the State for every aspect of 
their lives) and its much longer authoritarian legacy (which has 
inculcated a tradition of deference to political authority).
    In addition, while there is a significant and growing ``bottom-up'' 
factor to legal reform in China, China is still in many ways a ``top-
down'' society. There must be the political will among Chinese leaders 
for greater rights protection if that is going to become a full 
reality. Such will does exist in some areas, in part because even 
China's leaders are not immune to broader social trends, and in part 
because it is in their interests to restrain wayward officials. But 
there are still many areas in China where law is simply irrelevant, 
where the legal system is manipulated by the Chinese Communist Party to 
target its opponents, or where legal ``reform'' actually serves to 
deprive individuals of their internationally recognized human rights.
    Thus while law in China can foster respect for human rights, it 
will not necessarily always do so. This means that we, in seeking to 
promote human rights, must think carefully about where and how to 
support legal reform efforts in China. We should be choosing to work in 
areas of the Chinese legal system where there is real potential for 
progress. There are numerous possibilities, but at present, some of the 
most promising work is in the area of ``judicial reform,'' including 
steps to enhance the transparency, competency, and fairness of criminal 
and civil cases and strengthen the courts' ability to review State 
action under the Administrative Litigation Law and other statutes. 
Further efforts should also be made to promote the development of 
administrative law to increase the openness and predictability of 
government action and enhance opportunities for Chinese to participate 
in rulemaking and decisions that affect their interests.
    We must also pick our Chinese counterparts carefully, to ensure 
that they are both influential in legal reform and genuinely committed 
to rights protection. In order to have the greatest impact, outside 
support should focus on institutional reforms that cut across a broad 
range of legal fields and provide a structural basis for human rights 
protection. Since institutional change is complex and slow, even under 
the best of circumstances, outside support for legal reform in China 
must also be sustained, providing reformers with a range of practical 
alternatives that they can tailor to the unfolding reform process.
    Finally, support for legal reform within China must be combined 
with other approaches, including forthright criticism of the many 
respects in which Chinese law does not meet international human rights 
standards. The past has shown that, when well informed and combined 
with targeted support for reformers within China, outside criticism can 
play a significant role in promoting positive change in the Chinese 
legal system.
    I believe that this Commission can play a particularly valuable 
part in these efforts. Through the work of its members and professional 
staff and through hearings such as these today, the Commission can 
document the course of Chinese legal reform, its current state, and its 
achievements and shortcomings in protecting human rights. This will 
create a baseline for monitoring the Chinese legal system and 
criticizing its failings in an informed and effective manner. At the 
same time, the Commission can create a road map of the possibilities 
for further reforms and the particular ways in which people and 
organizations in the United States and elsewhere can contribute 
meaningfully to legal reform and human rights in China.
    I thank you again for inviting me to speak today and I look forward 
to answering any questions you may have.
                                 ______
                                 

                     Prepared Statement of T. Kumar

                             april 11, 2002
    Thank you Senator Baucus, Representative Bereuter and distinguished 
Members of the Congressional-Executive Commission on China for 
providing Amnesty International the opportunity to testify at this 
important hearing. We have documented human rights in China for 
numerous years. Our research shows that disregard for the rule of law 
is pervasive in China and one of the fundamental causes of the human 
rights abuses which occur in China. On this note Mr. Chairman, Amnesty 
International would like to express its appreciation for holding this 
hearing on this important subject.
                   importance of the commissions work
    Amnesty International considers your Commission's work as essential 
to the United States effort to promote and protect human rights in 
China. Your Commission was created in the context of granting Permanent 
Normal Trade Relations (PNTR) status to China as a means of maintaining 
vigilance to monitor human rights and to track the development of rule 
of law in China. Until PNTR status was granted to China, every year the 
Congress analyzed and debated the human rights situation in China. This 
annual debate proved to be an important element in highlighting gross 
human rights abuses in China. The PNTR debate kept China at check on 
its human rights practices. Your Commission was established not only to 
fill the role of closely scrutinising China's human rights practices 
but also to take effective steps to get meaningful results in the 
rights front. Mr. Chairman, the Commission has an obligation to keep 
China at check on its human rights practices and to find ways to 
improve its human rights practices.
                      rebiya kadeer's imprisonment
    Mr. Chairman, Amnesty International would like to bring to the 
Commission's attention the case of Rebiya Kadeer. Ms. Kadeer, a 
successful businesswoman from Xinjiang China, was arrested while trying 
to meet with Members of the Congressional Research Service and 
Congressional staff. Following a trial held in secret, a Chinese court 
sentenced her to 8 years' imprisonment for ``providing secret 
information to foreigners.'' This case highlights the dilemma the 
Commission is going to face when Commission staff visits China to meet 
with ordinary Chinese citizens. Amnesty International would urge the 
Commission to take note of this case and to raise it with the Chinese 
authorities. We also urge the Commission to raise Rebiya Kadeer's case 
in frank discussion with the Chinese Vice President Hu Jintao when he 
visits Washington later this month.
                current human rights situation in china
    Thousands of people are arbitrarily imprisoned across China for 
peacefully exercising their rights to freedom of expression, 
association or belief. They include members of religious and spiritual 
groups, ethnic minorities, political dissidents, labour activists, 
workers and farmers, human rights defenders, and a wide range of people 
who were detained simply for criticizing official corruption or 
advocating reforms, or for attempting to defend their rights against 
officials' abuse of power. Some are held without charge or trial under 
a system of administrative detention. Others have been sentenced to 
prison terms after unfair trials. Torture and ill-treatment of 
detainees and prisoners remain widespread across the country, affecting 
both criminal and political prisoners. Many deaths in custody resulting 
from torture are reported every year. The death penalty continues to be 
used extensively, arbitrarily and frequently as a result of political 
interference. Many individuals are sentenced to death after unfair or 
summary trials in which convictions are based on confessions extracted 
under torture.
    During the past year, the Chinese authorities have continued to 
show willingness to adhere on a pro-forma level to the international 
human rights regime, but they have pursued domestic policies which 
resulted in serious human rights violations on a large scale. These 
included thousands of arbitrary arrests, widespread torture, and 
summary and arbitrary executions.
    In April 2001, the Chinese authorities launched a ``strike hard'' 
campaign against crime which resulted in a massive escalation in 
executions. In a 3 months period, between April and July 2001, more 
people were executed in China that in the rest of the world for the 
previous 3 years. Many of the executions are believed to have been 
carried out after summary trials.
    The authorities have also imposed new restrictions on the media and 
on freedom of religion, and increased the crackdown on many groups and 
individuals who are deemed to be a ``threat'' to the ``stability'' or 
``unity'' of the country. Members of the Falun Gong spiritual movement 
and Muslim ethnic Uighurs were the targets of particularly harsh 
repression.
    The crackdown on ethnic Uighurs and Muslim leaders suspected of 
nationalist activities or involvement in ``terrorist'' or ``illegal 
religious activities'' has intensified in the Xinjiang Uighur 
Autonomous Region over the past few months. Thousands of Uighurs are 
reported to have been detained as a result, and some executed after 
unfair trials. Freedom of speech and religion also continue to be 
severely restricted in Tibet. Scores of Buddhist monks and nuns remain 
arbitrarily imprisoned, among other Tibetans serving prison sentences 
for the peaceful exercise of fundamental human rights.
    Falun Gong practitioners have suffered severe repression, with tens 
of thousands of practitioners being arbitrary detained since the group 
was banned in July 1999 and many reportedly tortured in detention. Over 
300 Falun Gong practitioners are reported to have died in custody, many 
of them due to torture, during the past 2 years. Members of evangelical 
Protestant groups and Roman Catholics who worship outside the official 
``patriotic'' churches also continued to be the victims of a pattern of 
arrests, fines, and harassment. Many of those detained are reported to 
have been tortured. Some were sentenced to lengthy prison terms over 
the past few months.
    Other groups were also the target of repression, including people 
who tried to organize free trade unions or spoke out on labour issues, 
political dissidents, advocates of reform, and people using the 
Internet to disseminate information deemed to be ``politically 
sensitive.''
          ``rule by law'' versus rule of law and human rights
    In addition to human rights violations which result from political 
repression, lack of respect for the law and arbitrariness in its 
enforcement are at the basis of gross human rights violations in China. 
Every year, countless numbers of people are detained without charge or 
trial. For those who are charged, sentences are frequently imposed 
after unfair trials. In many cases the verdicts passed at such trials 
include the death penalty.
    Rule of law is still understood in China to mean ``rule by law,'' 
reflecting a system in which the law is subordinate to political goals, 
including the defeat of perceived political threats. The judiciary 
lacks independence and the judicial process is subject to interference 
by political authorities. The vague and contradictory provisions of the 
law lead consistently to its arbitrary use and provide wide scope for 
abuse of power. The combined effects of repressive and vaguely worded 
criminal legislation, impunity for officials who abuse their power, and 
the use of a system of administrative detention mean that anyone can be 
detained at the whim of individuals in a position of power.
    During the 1990's, the Chinese government has taken steps to 
address some of these issues, including for example by amending the 
Criminal Procedure Law (CPL). However the measures taken were far too 
limited to significantly change the law enforcement and justice system. 
In practice, they have failed to protect individuals in China against 
arbitrary detention, unfair trials, torture and other human rights 
violations. Widespread illegal practices by law enforcers, such as the 
use of ``torture to extract confessions,'' which has been explicitly 
prohibited by law since 1980, continue unabated, and in many cases 
remain unpunished.
    This testimony describes some of Amnesty International's concerns 
about legislation and practices which are at the root of widespread and 
serious human rights abuses in China. Further information and analysis 
of laws and regulations which have a human rights impact in China can 
be found in a number of Amnesty International reports, including 
``People's Republic of China--Law Reform and Human Rights,'' March 1997 
(AI Index: ASA 17/14/97); ``PRC--the Death Penalty in 1999,'' February 
2001 (ASA 17/005/2001); ``PRC--The Crackdown on Falun Gong and other 
so-called heretical organizations,'' 23 March 2000 (ASA 17/11/2000); 
``Torture: A growing scourge in China--Time for Action,'' 12 February 
2001 (ASA 17/004/2001); and ``China's anti-terrorism legislation and 
repression in the Xinjiang Uighur Autonomous Region,'' March 2002 (ASA 
17/010/2002).
                       the criminal procedure law
    In March 1996, China's legislature, the National People's Congress 
(NPC), passed substantial amendments to the Criminal Procedure Law 
(CPL)--the basic law which has governed the criminal justice process in 
China for the previous 16 years. The revision of this law was the most 
significant legal development in China since 1979, when the CPL and the 
Criminal Law were adopted. The 1979 CPL had been the basis of 
widespread human rights violations, including long-term detention 
without charge, torture and ill-treatment of detainees, and unfair 
trials.
    While the 1996 amendments improved it provisions in some respects 
(see ASA 17/47/97, cited above), they also increased the potential for 
incommunicado, lengthy and arbitrary detention and related abuses in 
the criminal justice system. The revisions altogether left the law far 
short of international fair trial standards.
    Over 4 years of implementation of the 1996 revisions to the CPL 
have confirmed Amnesty International's initial concerns about these 
features of the revised law. Some of these are examined below.
          lengthy detention without charge, trial or challenge
    Under international law, ``anyone arrested or detained on a 
criminal charge shall be brought promptly before a judge or other 
officer authorized by law to exercise judicial power and shall be 
entitled to trial within a reasonable time or release.'' This is one of 
the basic safeguards against arbitrary arrest or detention and the word 
``promptly'' is taken to mean ``a few days.'' There is no such 
safeguard in Chinese law.
    The Human Rights Committee has stated that ``[p]re-trial detention 
should be an exception and as short as possible'' and must be lawful, 
necessary and reasonable in the circumstances. The Committee has also 
held that suspicion that a person has committed a crime is not 
sufficient to justify detention pending investigation and indictment.
    The CPL revisions increased the maximum permitted length of 
detention (juliu) without charge for ordinary criminal suspects, from 
10 days to 14 days (article 69) for some categories of suspect up to 37 
days, and potentially indefinitely for others. CPL revisions also 
extend the period of detention for investigation by the procuratorate 
after charge from 3 months to 7 months. This may be extended to 9 
months if the procuratorate orders the police to carry out 
``supplementary investigation'' or, as in the 1979 CPL, indefinitely in 
``especially major and complex'' cases, with the approval of the 
National Peoples Congress Standing Committee.
    When the CPL was revised, one form of administrative detention 
known as ``Custody and Investigation'' (or Shelter and Investigation--
in Chinese shourong shencha), which caused widespread human rights 
violations, was abolished. However, instead, categories of people who 
previously fell within the scope of Custody and Investigation were 
introduced into the revised CPL in a number of ways, including:

    (a) As special categories of suspects who may be detained without 
charge for up to 37 days (Article 69).
    (b) As those ``who do not tell their true name or address, whose 
status is unclear,'' for whom the time limits on detention start only 
from the time ``when their status is clarified.''(Article 128 para. 2).

    Meanwhile, outside the criminal justice system, the provisions on 
``Custody and Repatriation'' (shourong qiansong) still provide as much 
or more scope for administrative detention as ``Custody and 
Investigation.'' In addition, another form of administration detention, 
``Re-education Through Labour,'' which is imposed as a punishment by 
executive authorities, continue to be used extensively (see below, the 
section on Administrative Detention).
    In addition to ``detention'' (juliu), the CPL sets out two forms of 
pre-trial restriction or detention which the police may impose on their 
own authority, without charge or judicial review. These are: 
``Supervised Residence'' (jianshi juzhu), which is comparable to 
detention, and ``Taking a Guarantee and Awaiting Trial'' (qubao 
houshen).
    These may be imposed on any ``criminal suspect'' (article 51) 
including those against whom there is insufficient evidence to justify 
arrest (article 65). These ``coercive measures'' may also be imposed 
when pre-trial investigation by the police, procuratorate or the courts 
cannot be concluded within the legal time limits (article 74). Whereas 
the revisions to the CPL stipulated time limits for ``Supervised 
Residence'' and ``Taking a Guarantee and Awaiting Trial'' of 6 and 12 
months respectively, subsequent interpretations have extended the 
limits to 18 months and 3 years respectively.
    On paper, ``Supervised Residence'' may appear preferable to 
detention, but in practice it is being widely used as a means of 
detaining ``suspects'' incommunicado outside regular detention centres 
away from the oversight of existing supervisory mechanisms. Torture is 
frequently the result.
    ``Taking a Guarantee and Awaiting Trial,'' a form of bail, is the 
least restrictive of all pre-trial ``coercive measures.'' Detainees, 
their near relatives or legal representatives have the right to apply 
for it, but there is no appeal process if their request is rejected. 
Furthermore, certain categories of suspect cannot apply for it, 
including those suspected of crimes ``endangering national security.'' 
This includes the majority of prisoners of conscience and political 
prisoners known to Amnesty International.
    Under the revised CPL, the police, procuratorate or the courts must 
rescind or alter ``coercive measures'' if they discover they have been 
``inappropriately'' taken (article 73). However detainees or their 
representatives may contest their detention or restriction only on the 
basis that it has exceeded the stipulated time limits (article 75). 
Even then, the remedy may simply be a transfer to another type of 
restriction or detention rather than release.
 access to families and legal representatives--limited, discretionary 
                            and conditional
    Under the revised CPL the police should inform the family of a 
detainee about their detention or arrest and place of detention within 
24 hours, except where it ``would hinder the investigation'' (articles 
64 and 71). In practice, communication with the family is frequently 
denied until the detainee is brought to trial or sentenced.
    Provisions in the 1996 CPL concerning access to lawyers are an 
improvement over the 1979 CPL but still fall short of international 
standards. Guaranteed access to lawyers and legal representatives is 
one of the strongest protections against torture for any detainee. 
However, such access during the investigation stage is not a guaranteed 
right to all suspects and remains firmly at the discretion of the 
investigating authorities. While this situation continues, there is 
unlikely to be major progress in the fight against torture in China. In 
May 2000, the U.N. Committee against Torture recommended that the 
Chinese government consider abolishing the need to apply for 
permission, for any reason, before a suspect can have access to a 
lawyer whilst in custody.
    Article 96 of the revised CPL states that a suspect ``may appoint a 
lawyer to provide legal advice or to file petitions and complaints on 
his behalf'' after the first session of interrogation by the 
``investigative organ,'' or from the day the suspect is subjected to 
one of the forms of detention or restriction provided by the law 
(``compulsory measures''). Appointed lawyers have a limited role at 
this stage: they can demand to be told the offense imputed to the 
suspect, can apply for ``Taking a Guarantee and Awaiting Trial'' once 
the suspect is formally arrested (charged), and ``may'' meet the 
suspect in custody ``to enquire about the case.'' Representatives of 
the investigative organs may be present at such meetings.
    In cases ``involving State secrets'' prior approval of the 
investigative organs is required for a suspect to appoint a lawyer or 
before any meeting between lawyer and client takes place. The vague and 
potentially all encompassing definition of ``state secrets'' has meant 
that this provision has been heavily used to deny access to legal 
representation in these cases. This has continued even after the term 
was clarified in a joint communique in January 1998 which also spelt 
out that no approval was required in any other cases.
    Formal ``arrest'' (charge) is followed by a period of 
``investigation.'' At the investigation stage (which may last for 
months before procurators decide whether or not to prosecute the case), 
detainees are not entitled to free legal assistance. This only becomes 
a right much later on, ``at least 10 days before'' the trial, and only 
for some categories of detainees. In practice, therefore, many 
detainees will not have the means of accessing legal assistance for 
long periods after being taken in custody. Regulations from the 
Ministry of Public Security stipulate that the police must inform 
suspects of their rights to appoint a lawyer at this stage, but 
officials admit this is often disregarded and most suspects are unaware 
of the law.
    In practice, very few detainees have a legal representative during 
the investigation stage of detention. Incomplete statistics from the 
Ministry of Justice for 1997 and the first half of 1998 show that 
lawyers were appointed at this stage in only 16.9 percent and 17.7 
percent of cases respectively. Some areas report less than 10 percent .
    Although an improvement on the 1979 CPL, the provisions concerning 
access to lawyer in the revised CPL still mean that detainees can be 
held incommunicado for weeks or months without guaranteed access to a 
defense lawyer. They also place limits on the role lawyers can play in 
defending their clients.
          lawyers intervention--additional practical obstacles
    In practice, State institutions and investigators themselves have 
used a wide range of additional expedients to curtail and deny 
suspect's access to lawyers. They have been assisted by ambiguities in 
Article 96 of the revised CPL, the lack of definition of 
``investigative organs,'' ``first interrogation,'' and ``compulsory 
measures.''
    State organs authorized to detain suspects have sought to exclude 
themselves from the remit of the law. The Customs authority, for 
example, works closely with the Ministry of Public Security 
investigating drug trafficking cases and smuggling cases which have 
been a major focus of a corruption crackdown in recent years. The 
Custom authority has the legal power to ``Detain and Transfer'' (kouliu 
yisong) suspects in smuggling cases. In a recent notice the authority 
stated that such detention was not one of the ``compulsory measures'' 
under the CPL, so requests from lawyers to see clients during Detention 
and Transfer should be denied.
    Through local ``internal'' implementing regulations, limits have 
been set on the duration and number of meetings allowed between lawyers 
and clients. The police in several regions reportedly implement a 
complicated approvals process for all requests concerning access to 
lawyer, so that the Ministry of Public Security regulations that a 
lawyer's visit should be approved within 48 hours, or 5 days in 
``complex cases,'' are not followed in practice. In several recent 
cases, lawyers appointed by a suspect's family have been obstructed 
with many different excuses before being informed several weeks later 
that the suspect ``does not want to see a lawyer.'' They have no power 
to verify or challenge this response. Lawyers seeking access away from 
their hometown are particularly susceptible to these blocking tactics. 
Lawyers have also complained that there is completely inadequate 
provision of meeting rooms in many detention centres, resulting in 
costly waiting and delay, and that, when they attempt to exercise their 
functions to apply for medical bail or to complain at detention beyond 
legal time limits, they frequently receive no reply.
    As for pursuing allegations of torture, one defense lawyer has 
stated: ``The use of torture to obtain a confession is something 
defendants often raise, but it puts us in a very delicate situation 
since we need facts and evidence to back up these claims .  .  . but it 
is very hard to gather evidence because it is almost impossible to get 
access to clients at these times.''
    In one high profile case which demonstrates the occupational 
hazards for defense lawyers, a rural Binhai County Court sentenced a 
young lawyer to 1 year imprisonment suspended for 2 years for the new 
crime of ``interfering with witnesses.'' Liu Jian, from Nanjing City 
was prosecuted for his efforts to assist a client who claimed that his 
confession to bribe taking had been extorted through torture. Liu Jian 
was denied meaningful access to his client until 1 week before the 
trial. Then he found major discrepancies between his client's account 
and the details of the crime presented in the indictment. He tracked 
down many witnesses to prove the prosecution's distortion, but most 
failed to appear when the trial began on 13 July 1998. They had 
reportedly been threatened against interfering in this high profile 
corruption case. There was no halt in the trial when the defendant 
retracted his confession. Instead it was reinstated on the basis that 
he had failed to bring up allegations of torture during his 4 months of 
pre-trial detention.(In fact the defendant had raised the allegations 
the first time he had met his lawyer out of earshot of prosecutors). 
The court reportedly also passed a heavier sentence as his allegations 
of torture were considered to be evidence of a ``poor attitude in 
acknowledging guilt'' (renzui taidu buhao). The prosecutor immediately 
detained Liu Jian on accusations of ``deliberately inducing witnesses 
to give false evidence'' and ``knowingly presenting false testimony.'' 
During 5 months' pre-trial detention Liu Jian reported he had been 
denied contact with his family and was worn down by constant 
interrogation. He was beaten until his mouth filled with blood for 
refusing to confirm his interrogators version of events. Eventually he 
read to camera a statement they prepared for him and chose to plead 
guilty rather than chance justice there.
    Since the revised CPL gave an enhanced role to lawyers during the 
investigation period, there have been numerous reports of illegal 
detention and torture of lawyers across the country. Defense lawyers 
seeking to prove the innocence of their clients have also been 
prosecuted for falsifying evidence, ill-treated and denied due process 
even in cases attracting considerable public attention in Beijing. 
There have been calls for the reinstatement of provisions granting 
trial lawyers immunity from prosecution which were cut from the 
original draft of the 1997 Lawyer's Law.
   provisions on torture--incomplete exclusion of evidence obtained 
                            through torture
    The revised CPL repeats provisions in the 1979 law prohibiting the 
use of torture to extract statements:

    Article 43 (32 in 1979 CPL).  .  . The use of torture to coerce 
confessions and the gathering of evidence by threats, enticement, 
deceit or other unlawful methods are strictly prohibited.
    Article 46 (35 in 1979 CPL).  .  . In cases where there is only the 
statement of the defendant and there is no other evidence, the 
defendant cannot be found guilty and sentenced to criminal punishment.

    The revised CPL still does not specifically exclude the use as 
evidence in court of confessions or statements extracted through 
torture as required under the Convention (article 15). In recent years, 
interpretations of the law and procedural regulations have progressed 
and then retreated on this issue. Stipulations currently in effect are 
inconsistent and confusing. None of them exclude all types of 
statements extracted through all types of torture. Nor do they 
comprehensively bar the use of all evidence derived from such 
statements.
    Before revisions to the CPL, on March 21 1994, the Supreme People's 
Court (SPC) adopted ``Specific Regulations on Criminal Adjudication 
Procedures,'' which stipulated:
    .  .  . Any witness testimony, victim's statement, defendant's 
confessions verified to have really been (jing chazheng queshi) 
obtained through torture to extract a confession, threats, luring, 
deceit, or other illegal methods, cannot be used as evidence (buneng 
zuowei zhengju shiyong).
    This has been superseded by what appears to be a weaker conditional 
provision in the SPC ``Decision on Specific Issues in the 
Implementation of the CPL'' (effective 8 September 1998) which 
stipulates only that such statements: ``.  .  . cannot become the basis 
for determining a case (buneng zuowei ding'an de genju).''
    Several legal sources in China maintain that this does not even 
amount to full exclusion of the types of coerced statements listed. 
They may be still be used to ``supplement'' the major evidence used to 
determine a case. Moreover, material evidence derived from such coerced 
statements would not be excluded either.
    The Supreme Peoples' Procuratorate followed the same language as 
the SPC in their ``Rules on Implementing the CPL'' (effective 18 
January 1999):

    265: Criminal suspects' confessions, victims' statements, and 
witness testimonies collected through torture to extract a confession 
(xingxun bigong), or threats, enticement, cheating and other illegal 
methods cannot become the basis for a criminal charge (buneng zuowei 
zhikong fanzui de genzhu).
    In practice there are also numerous practical obstacles to such 
verification. Sources also highlight that, however significant this SPC 
interpretation may be, it only binds judicial organs and does not 
directly bind administrative organs like the public security apparatus. 
Significantly, numerous regulations from the Ministry of Public 
Security, which is responsible for the majority of State officials 
involved in interrogation, do no more than repeat the general 
prohibitions against torture in CPL article 43.
    Other experts maintain that, a confession or statement extracted 
through torture may also be legally ``recollected'' for use as evidence 
at trial. That is, if a suspect agrees to repeat statements which were 
initially extracted through torture, these may be admissible.
    There are growing calls in China for full and firm exclusion of 
evidence extracted by torture and other illegal means. Commentators 
argue that without it efforts to eradicate torture have little hope of 
lasting success.
    Amnesty International believes China's Criminal Procedure Law 
should be revised as a matter of urgency to explicitly exclude the use 
of all evidence extracted through torture of any kind. The same 
exclusions should also apply in any determination of administrative 
punishment.
           no right to silence or to avoid self-incrimination
    Amnesty International believes the right of an accused to remain 
silent during the investigation phase and at trial is inherent to the 
presumption of innocence and an important safeguard of the right not to 
be compelled to confess guilt or testify against oneself. Currently the 
CPL states:

    Article 93: When interrogating a criminal suspect, the 
investigators shall first ask the criminal suspect whether or not he 
has committed any criminal act, and let him State the circumstances of 
his guilt or explain his innocence; then they may ask him questions. 
The criminal suspect shall answer the investigators' questions 
truthfully, but he shall have the right to refuse to answer any 
questions that are irrelevant to the case.

    Legal analysts in China argue that the duty to answer fully and 
truthfully puts the suspect at great disadvantage: it legitimizes the 
investigator's use of ill-treatment and demonstrates that the 
presumption of guilt is still the reality. The established practice of 
exercising ``leniency to those who confess, severity to those who 
resist'' (tanbai congkuan, kangju congyan) has a similar effect.
               trial process and presumption of innocence
    The CPL revisions introduced some positive changes in the 
provisions related to the trial process. Despite that, however, the 
revised CPL still fails to conform to international standards for fair 
trial, including the right to a defense lawyer at all stages of the 
criminal process, the right to have adequate time and facilities to 
prepare the defence, the right to be presumed innocent and the right to 
a public trial by an independent and impartial tribunal.
    As noted earlier, the right to defense is still limited during pre-
trial detention and only some detainees have a clear entitlement to 
free legal assistance ``at least 10 days'' before the trial. It is also 
at this time that defendants are entitled to receive a copy of the 
indictment and have full access to the evidence against them. In many 
cases, 10 days is likely to be grossly insufficient to prepare an 
adequate defense. In contrast, the police and procuracy may have had 
months to buildup evidence against the accused.
    In addition, the revised law still fails to guarantee the defense's 
right to examine prosecution witnesses and to call new witnesses in 
court. Witnesses' testimony can still, as previously, be presented in 
writing (Article 157) and, when witnesses are called in court, cross-
examination is subject to approval by the chief judge (Article 156). 
This may therefore be denied at the chief judge's discretion. As to the 
right to call new defense witnesses in court, this is at the discretion 
of the trial court (Article 159).
    The revised law also fails to guarantee public trials in all cases: 
it retains a clause of the original law which allows cases involving 
``state secrets'' to be tried in camera (Article 152). In such cases, 
only the verdict is to be announced ``in public,'' which in practice 
usually means in the presence of close relatives of the accused or 
other people selected by the authorities.
    When the amendments to the CPL were passed, some commentators 
stated that the law now included the presumption of innocence--a 
fundamental principle of fair trial in international law. This 
assumption was based on the inclusion of a new provision in the law, 
which reads: ``No one shall be determined guilty without a verdict 
according to law by a people's court'' (Article 12). This article, 
however, does not speak of presumption of innocence. All it says is 
that the only legal means to ``decide'' (queuing) guilt is a verdict by 
a court, and by extension, that only the courts have this power. 
According to some experts, the inclusion of Article 12 in the revised 
law is related to controversy about a procedure known as ``exemption 
from prosecution'' which, under the 1979 CPL, gave the procuracy the 
power to determine guilt. This procedure has been modified in the 
revised law.
    Article 12, however, does not touch upon questions which are 
central to the presumption of innocence, such as the burden and 
standards of proof. One article in the revised law, retained from the 
1979 CPL, appears in fact to place the burden of proof on the defense. 
It reads, in relevant part: ``The responsibility of a defender is, on 
the basis of the facts and the law, to present material evidence and 
opinion proving that the criminal suspect or defendant is innocent, 
that his crime is minor, or that he should receive a mitigated 
punishment or be exempted from criminal responsibility.  .  . '' 
(Article 35, revised CPL; Article 28 in the 1979 CPL). While this 
article can be interpreted in various ways, the law still does not give 
the defendant the benefit of the doubt.
    Some moves were made in the revised CPL in the direction of 
presumption of innocence, notably through a change in the terminology 
used to designate detainees--as ``suspects'' and ``defendants,'' rather 
than as ``criminals'' prior to the revisions. However, the pre-trial 
detention process in China is still heavily weighted against detainees, 
denying them many of the rights which are associated with the 
presumption of innocence.
                    provisions on the death penalty
    Under the revised CPL, all defendants facing the death penalty 
should receive notice of the trial and of the right to a defense 
lawyer, as well as a copy of the indictment, at least 10 days before 
the trial starts. Those who have not hired a defense lawyer have the 
right to have one appointed for them at that stage by the court hearing 
the case (Articles 34 and 151). While this is an improvement over the 
1979 CPL, this still leaves very little time to prepare an adequate 
defense in death penalty cases. International standards require that 
people charged with offenses for which the death penalty may be imposed 
be given ``adequate legal assistance at all stages of the 
proceedings.''
    The revised CPL also stipulated that all death sentences have to be 
approved by the Supreme People's Court. In presentations to U.N. 
bodies, Chinese diplomats presented this as a significant safeguard 
against overuse of the death penalty in China. However, subsequent 
legal interpretations issued by the Supreme People's Court (SPC) have 
delegated powers of final approval back down to the High People's 
Courts and the Military Courts for the majority of crimes liable to the 
death penalty. Some legal analysts in China have described this as 
unconstitutional as it nullifies an additional safeguard for defendants 
set out in national law.
    The delegation to the high courts of the power to approve death 
sentences means that the procedure for approval of the death sentence 
is usually amalgamated with that for appeal or review of the case, also 
carried out by the high courts in most cases. This indeed amounts to 
nullify the safeguard initially provided in the revised CPL. In 
addition, the revised CPL includes no mechanism allowing prisoners 
sentenced to death to seek pardon or commutation of the death sentence, 
which is an internationally recognized right.
    International standards generally require that the most careful 
legal procedures and all possible safeguards for the accused be 
guaranteed in death penalty cases, including the right to a fair and 
public hearing by a competent, independent and impartial tribunal, the 
presumption of innocence, the right to have adequate time and 
facilities to prepare the defence--including, as noted above, the right 
to have adequate legal assistance at all stages of the proceedings--and 
the right to seek pardon or commutation of the sentence. These 
safeguards, however, remain unavailable in China.
    The revised CPL retains a provision which bans public executions, 
but it still fails to prohibit the public display and humiliation of 
prisoners sentenced to death, which is a common practice. Prisoners 
sentenced to death are frequently paraded in public--with their hands 
tied behind their back, a placard around their neck listing their names 
and crimes, and their head forced down by guards--at ``mass sentencing 
rallies'' or in parades of trucks through the streets on their way to 
the execution ground. In May 2000, Chinese government representatives 
reported to the U.N. Committee Against Torture that: ``China prohibits 
the practice such as parading in the streets the criminals to be 
executed, hanging big character name posters on criminals or tying them 
up with ropes. The people's courts at all levels have done a great deal 
of work to reduce and eliminate such practice. At the moment such 
phenomena no longer exist. Should they occur in some individual places, 
they will be seriously dealt with according to law.''
    However, whilst several regulations indeed ``outlaw'' this 
practice, it remains common and is resorted to particularly frequently 
as a means of warning potential offenders during the campaigns against 
crime periodically launched by the government. Some Chinese legal 
scholars have advocated banning this practice in national law, but no 
consideration appears to have been given to this suggestion so far. The 
revised CPL also fails to include provisions allowing prisoners 
sentenced to death to see their family before execution, which has also 
been advocated by some legal scholars in China. This is only granted at 
the discretion of the authorities.
    Amnesty International is also concerned at other aspects of the 
treatment of prisoners sentenced to death, which constitute cruel, 
inhuman or degrading treatment. It is common practice for condemned 
prisoners to be kept in shackles (hands and feet) at least from their 
first trial until execution. They are frequently subjected to a 
particularly cruel form of shackling hands and feet together (termed 
dilao and ``dragon board'') which clearly inflicts severe pain and 
amounts to torture. Amnesty International has also received reports of 
condemned prisoners being shackled, arms and legs splayed, to bed 
boards for many months awaiting execution.
    The use of leg irons is prohibited by international standards and 
the prolonged use of other instruments of restraint is also considered 
in some circumstances to amount to ill treatment. Prison and detention 
centre regulations in China specifically exclude those awaiting 
execution from time limits on the use of shackles and other restraining 
instruments and solitary confinement.
         administrative detention--re-education through labour
    The system of ``re-education through labour''--a form of 
administrative detention imposed as a punishment--is based on a 
Decision passed by the National People's Congress in 1957, which was 
later updated with new regulations. This legislation remains in force. 
According to a definition given by an official legal newspaper, ``re-
education through labour'' is a punishment for actions which fall 
``somewhere between crime and error.''
    ``Re-education through labour'' involves detention without charge 
or trial for up to 3 years, renewable by 1 year, in a forced labour 
camp. It is imposed by local government committees usually presided 
over by police officials. It applies to people who are regarded as 
troublemakers or those accused of committing minor offenses which are 
not regarded as amounting to ``crime'' and which therefore are not 
prosecuted under the criminal justice system. Detainees liable to 
receive terms of ``re-education through labour'' have no right of 
access to a lawyer. Under the regulations on ``re-education through 
labour,'' people who can be subjected to this punishment include those 
who are classified as being ``counter-revolutionary,'' ``anti-Party'' 
or ``anti-socialist,'' as well as people who ``behave like hooligans,'' 
such as by engaging in fights, smuggling or prostitution, or by 
disturbing public order or ``the order of production'' in other ways.
    According to official statistics, in 1996 there were 200,000 people 
in ``re-education through labour'' camps in China. By early 2001, the 
number had increased to 260,000. Over the past 2 years, the use of this 
form of detention has increased particularly against Falun Gong 
practitioners and during the ``strike hard'' campaign against crime 
launched by the Chinese authorities in April 2001. Other victims 
include political dissidents, members of religious groups and a wide 
range of people accused of ``disturbing public order,'' including 
prostitutes.
    One argument frequently used by Chinese officials to justify ``re-
education through labour'' is that this punishment does not have the 
stigma of a criminal punishment and that it involves less stringent 
conditions of detention than a term of imprisonment. In reality, 
however, the conditions of detainees in labour re-education camps are 
often similar to those of convicted prisoners, and they often face the 
same difficulties finding employment after their release.
    If one compares ``re-education through labour'' with criminal 
punishments, one may also question the justification for imposing a 
punishment varying from 1 year to 3 years of detention in a forced 
labour camp in cases which are not considered serious enough to be 
prosecuted and tried under the Criminal Law, whereas those convicted of 
``crimes'' under the Criminal Law can receive light punishments such as 
``control'' (which involves supervision within the community for 
periods varying from 3 months to 2 years), or ``criminal detention'' 
(which involves between 15 days and 6 months of detention).
                            the martial law
    The Martial Law of the PRC was promulgated on 1 March 1996 by the 
Standing Committee of the NPC. It provides that martial law can be 
imposed, either locally or in the whole country, in response to 
situations vaguely defined as ``turmoil, riot or disturbance'' where 
``only emergency measures can help preserve social order and protect 
the people's lives and property.''
    This law gives the national and local governments the power to 
suspend constitutional rights during such a State of emergency. It 
provides that the ``martial law enforcement institutions'' can ban or 
restrict assembly, parades, demonstrations, public speeches and ``other 
group activities.'' They can also ban strikes, impose press censorship, 
control correspondence and telecommunications, and ban ``any activity 
against martial law.''
    The personnel in charge of executing martial law--which can be the 
police, the People's Armed Police, or military units--are given wide 
powers to carry out arrests under the Martial Law. They can detain and 
search people violating curfew regulations, ``criminals or major 
suspects endangering State security or undermining social order,'' 
people who obstruct or defy ``the implementation of martial law 
tasks,'' and basically anyone suspected of opposing martial law.
    Martial law enforcement personnel also have the power to use 
``police instruments'' to disperse by force crowds or groups of people 
involved in ``illegal'' gatherings or demonstrations, or causing 
``disruption of traffic order,'' and to immediately detain the 
organizer or individuals who do not obey orders in such situations.
    The Martial Law further specifies that, for those detained or 
arrested during martial law, the procedures and time limits provided by 
the Criminal Procedure Law for detention or arrest will not apply, 
except for the procedure which requires that ``arrest'' (charge) be 
approved by the procuracy.
    The law allows martial law enforcement personnel to use ``guns and 
other weapons,'' ``if police instruments prove to be of no avail,'' in 
various situations where violence occurs or there is a threat of the 
use of violence. This includes situations where a person detained, or 
transported under escort, commits a physical assault or ``attempts to 
get away.'' The law sets no limit on the amount of force to be used in 
such situations and does not specify that force must be used only when 
strictly necessary and must be proportionate to the threat of violence. 
Amnesty International is concerned that the Martial Law permits 
restrictions to the exercise of basic rights which go beyond those 
envisaged under international standards. The declaration of a State of 
emergency is an expression of the rule of law, not the abrogation of 
it, and emergency measures must not be introduced as a means of 
suppressing legitimate rights.
    International standards set strict limits on the scope of 
restrictions which may be enforced under a State of emergency and 
specify that such restrictions may only occur ``in time of a public 
emergency which threatens the life of the Nation and the existence of 
which is officially proclaimed.'' The Martial Law of the PRC goes far 
beyond this by providing that martial law, and the restrictions it 
involves, can be imposed in response to a local situation of ``turmoil, 
riot or disturbance.''
    Furthermore, some rights are so fundamental that they can never be 
suspended, even during a State of emergency. Under international 
standards, the rights which can never be derogated from include the 
right to life, the right not to be tortured or subjected to cruel, 
inhuman or degrading treatment or punishment, and the right to freedom 
of thought, conscience and religion. In Amnesty International's 
experience, violations of the non-derogable rights to life and freedom 
from torture often occur during an emergency when security forces are 
given license to maintain public order with no effective executive, 
legislative or judicial control. The Martial Law of the PRC gives wide 
powers to the security forces and may lead to such violations.
    International standards also limit the restrictions that can be put 
on all other rights during a state of emergency. They specify that the 
exercise of rights other than the non-derogable rights can be suspended 
by a State only ``to the extent strictly required by the exigencies of 
the situation'' and as a temporary measure. The Martial Law of the PRC 
does not contain any such limitations. Its provisions are so vague that 
they would permit the arbitrary suspension of rights, such as the right 
not to be arbitrarily detained, the right to fair trial, and the rights 
to freedom of expression, association and peaceful assembly.
 the criminal law--recent amendments concerning provisions on terrorism
    Amnesty International is concerned about many provisions of the 
Criminal Law, notably provisions concerning ``state security'' and 
``state secrets'' offenses, which are frequently used to imprison 
people for the peaceful exercise of fundamental human rights, and 
provisions which include the death penalty as a punishment for over 60 
offenses, including many non-violent crimes. These concerns have been 
examined in other reports and this testimony describes only recent 
amendments made to the Criminal Law concerning its anti-terrorism 
provisions.
    On 29 December 2001, the Standing Committee of the National 
People's Congress (NPC--China's legislature) adopted amendments to the 
Criminal Law. The stated purpose of the amendments, which entered into 
force the same day, was to ``punish terrorist crimes, ensure national 
security and the safety of people's lives and property, and uphold 
social order.''
    Prior to the adoption of the amendments, the Criminal Law already 
included provisions punishing some ``terrorist'' crimes in a section of 
the law dealing with ``Crimes of Endangering Public Security.'' Most of 
the amendments adopted in late December 2001 modify existing articles 
in that section of the law.
    The main changes brought about by the amendments are described 
below, together with Amnesty International's concerns about some of the 
amendments or existing provisions:

     Two amendments have been made to Article 120 of the 
Criminal Law. The first one increases the punishments for people who 
``organize or lead a terrorist organization.'' Prior to the amendments, 
this was punishable by between three and 10 years' imprisonment--this 
has now been increased to between 10 years' and life imprisonment. 
Under this article, ``active'' participation in a ``terrorist 
organization'' is punishable by between three and 10 years' 
imprisonment, and ``other participants'' can be punished by up to 3 
years' imprisonment. The second amendment to this article is the 
addition of a new clause punishing those who ``fund terrorist 
organizations or individuals engaging in terrorist activities.'' This 
is punishable by penalties ranging from fines to maximum 5 years' 
imprisonment, except ``when the circumstances of the case are 
serious,'' in which case 5 years' imprisonment is the minimum 
punishment. No maximum is specified.

    Amnesty International is concerned that the provisions of Article 
120 make it a criminal offense to be a member, leader or organizer of a 
``terrorist organization'' even if the individual does not commit any 
other illegal act. The term ``terrorist organization'' is not defined 
in the law and could be interpreted as referring to peaceful political 
opposition or religious groups.
    Amnesty International is also concerned that the new clause added 
to Article 120 does not specify a maximum punishment, thus potentially 
making the ``funding'' of ``terrorist organizations'' or ``individuals 
engaging in terrorist activities'' liable to the death penalty, as 
other provisions of the law examined below.

     Four of the amendments add new provisions in Articles 114, 
115, 125 and 127 of the Criminal Law to punish the ``dissemination,'' 
or ``illegal manufacturing, trading, transporting or storing,'' or 
``the stealing or seizing or plundering,'' of ``poisonous or 
radioactive substances or contagious-disease pathogens.''

    This is in addition to existing provisions in these articles which 
punish ``causing fires, floods or explosions, or using other dangerous 
means that harm public security'' (Article 114), or the same acts as in 
Article 114 that ``lead to serious injury or death or cause major 
damage to public or private property'' (Article 115), or the illegal 
manufacturing, trading, transporting or storing of firearms, ammunition 
or explosives (Article 125), or the stealing or seizing or plundering 
of firearms, ammunition and explosives (Article 127).
    The punishments provided in these articles remain unchanged. 
Articles 115, 125 and 127 all provide punishments ranging from varying 
terms of imprisonment to the death penalty. Therefore, the new range of 
offenses related to the use of ``poisonous or radioactive substances or 
contagious-disease pathogens,'' which have been added in articles 115, 
125 and 127, are also liable to be punished by death, including for 
example the illegal transporting or storage of such substances.
    Amnesty international is concerned that the amendments to these 
articles enlarge the scope of the death penalty in China.

     Two amendments have been made to Article 191 of the 
Criminal Law. This article punishes illegal financial operations or 
gains related to a range of crimes, including narcotics and smuggling 
crimes. One of the amendments has now added ``terrorist crimes'' to 
this range of crimes. The second amendment provides that, when such 
crimes are committed by a ``work unit,'' punishments will now range 
between five and 10 years' imprisonment if the ``circumstances are 
serious''--i.e. a heavier punishment than previously provided.
     The last amendment is a new clause added to Article 291 of 
the Criminal Law. The existing provisions in Article 291 punish people 
who ``disturb social order'' by gathering in public places, blocking 
traffic, or obstructing agents of the State from carrying out their 
duties; the punishments for these offenses ``if the circumstances are 
serious'' range from ``public surveillance'' to maximum 5 years' 
imprisonment.
    The new clause added to Article 291 provides that ``whoever 
seriously disturbs social order by disseminating false explosive, 
poisonous or radioactive substances or contagious-disease pathogens, or 
by fabricating threats or information about an explosion or biological 
or radioactive threat, or by knowingly disseminating fabricated threats 
or messages'' is to receive punishments ranging from 'public 
surveillance' to 5 years' imprisonment, or ``if serious consequences 
have been caused'' a sentence of minimum 5 years' imprisonment. No 
maximum sentence is specified.

    Amnesty International is concerned that the language used in this 
article is vague, leaving the door open to wide interpretation. It is 
not clear what the ``dissemination'' of ``false'' explosives or 
substances or of ``fabricated threats and messages'' might mean, nor is 
it clear what would constitute ``serious consequences.'' The vagueness 
of these provisions therefore opens the possibility that this clause 
may be used to punish people peacefully exercising their right to 
freedom of expression. This concern is increased by the fact that the 
provisions of Article 291 have been frequently used in the past to 
imprison people criticizing the government or expressing their views 
through peaceful gatherings or demonstrations. There are indications 
that the new provisions in Article 291 may also be interpreted very 
broadly. On 24 December 2002, in a report on the draft amendments, the 
official Xinhua news agency stated that ``even joking about putting 
anthrax powder in a letter can lead to a 5-year prison sentence under a 
new amendment to China's Criminal Law.'' This was referring to the new 
provisions in Article 291, which the news agency cited.
    Amnesty International is also concerned that the failure to specify 
a maximum punishment in the amendment to Article 291 raises the 
possibility that those convicted of the offenses specified may be 
sentenced to death if this is deemed to have caused ``serious 
consequences.''
    Overall, the vague wording of several articles of the law, the lack 
of definition of ``terrorism,'' ``terrorist organization'' or 
``terrorist crime,'' which are cited in several provisions, and the 
failure to specify a maximum punishment in some of these provisions 
give rise to concern that:

     The lack of precision creates uncertainty about what 
conduct is prohibited;
     These provisions may criminalize peaceful activities and 
infringe unduly upon other rights such as freedom of expression and 
association;
     The death penalty may be applied as a punishment under 
most of the articles cited above.

    While the word ``terrorism'' is used frequently and its practice is 
generally opposed, there is no universally accepted definition of the 
word in general use or in treaties and laws designed to combat it. 
Frequently, the word indicates the user's attitude to a certain crime. 
States and commentators describe as ``terrorist'' acts or political 
motivations that they oppose, while rejecting the use of the term when 
it relates to activities or causes they support.
    In a recent report, the U.N. Special Rapporteur on terrorism noted 
that the issue of ``terrorism'' has been ``approached from such 
different perspectives and in such different contexts that it has been 
impossible for the international community to arrive at a generally 
acceptable definition to this very day.'' The Special Rapporteur also 
pointed out that ``the term terrorism is emotive and highly loaded 
politically. It is habitually accompanied by an implicit negative 
judgment and is used selectively.''
    There are a number of U.N. conventions prohibiting specific acts, 
such as hijacking or bombing, which specify in detail various crimes 
which are commonly understood as ``terrorist'' crimes. However, recent 
attempts to finalize the U.N. Convention on ``terrorism'' stalled, 
inter alia, because of disagreements about the definition.
    In the case of China, Amnesty International is concerned that the 
anti-terrorist legislation may be used in the context of the 
government's ongoing repression of ``ethnic separatist activity,'' 
particularly in the XUAR. In early March 2002, a deputy to the Ninth 
National People's Congress called on the legislature to set up an anti-
terrorism legal framework as soon as possible and stated in this 
context: ``To safeguard China's sovereignty and territorial integrity, 
we have to fight separatists, international terrorists and religious 
extremists.''
    The Chinese government's use of the term ``separatism'' refers to a 
broad range of activities, many of which amount to no more than 
peaceful opposition or dissent, or the peaceful exercise of the right 
to freedom of religion. Since the 11 September events , the Chinese 
authorities have tried to justify their harsh repression of Muslim 
ethnic opponents or independent religious leaders in the XUAR by 
claiming they were linked with international ``terrorism.''
    While there have been some incidents of bombings in the XUAR over 
the past 10 years and a few officially reported assassinations which 
are alleged to have been politically motivated, the government has so 
far failed to provide convincing evidence that those allegedly involved 
in these incidents had links with international terrorist groups. 
Furthermore, the number of such incidents is relatively small and the 
government's campaign of political repression in the region has gone 
far beyond the search for people involved in using this kind of 
violence for political ends.
    In the continuous political crackdown in the XUAR over the past 10 
years, the authorities have detained tens of thousands of people, held 
many of them in complete secrecy, preventing all independent 
investigation into the cases, while periodically releasing selective 
information about a few of those who have been prosecuted. Many of 
those prosecuted have been held incommunicado for months on end, 
subjected to torture, and sentenced after grossly unfair trials, most 
of these either held in secret or in front of large crowds during 
``mass sentencing rallies.'' In this context, there are reasons to 
doubt the credibility of the government's information about those it 
accuses of involvement in ``terrorist'' activity.
    Amnesty International considers that the measures taken by states 
to protect their population from violent criminal acts must be 
implemented within a framework of protection for all human rights, and 
should not be used as a pretext to curtail fundamental freedoms and 
crack down on peaceful opposition or dissent.
increased repression in the xinjiang uighur autonomous region since 11 
                             september 2001
    ``Xinjiang is not a place of terror.'' ``By no means is Xinjiang a 
place where violence and terrorist accidents take place very often.'' 
(Statements by Wang Lequan, Secretary of the XUAR Communist Party 
Committee, and Abdulahat Abdurixit, Chairman of the XUAR Regional 
Government, in Urumqi on 1 September 2001)
    These statements, by the two leading officials of the XUAR, were 
reportedly made on 1 September 2001, when they met a group of Chinese 
and foreign reporters following the opening ceremony of the Urumqi 
Fair. Wang Lequan also told the reporters that Xinjiang was stable and 
that its stability had never been affected by the activities of 
``national separatists and religious extremists.''
    Just a few weeks later, however, Chinese officials were painting 
quite a different picture. Following the 11 September attacks in the 
USA, they placed emphasis on the ``terrorist'' threat posed by 
``separatists'' in the XUAR, stating that the latter had close ties 
with international terrorist forces, suggesting that ``separatism'' and 
``terrorism'' were one and the same thing, and calling for 
international support in their fight against domestic terrorism.
    The crackdown on suspected government opponents was intensified in 
the XUAR soon after 11 September 2001. It further intensified in 
December 2001, following a national conference on 'political and legal 
work' held in Beijing on 4 December 2001, which made the crackdown on 
``ethnic separatist forces, religious extremist forces and violent 
terrorist forces,'' as well as the Falun Gong spiritual movement, the 
first of four main priorities in ``political and legal work'' for the 
year 2002.
    The authorities also imposed new restrictions on freedom of 
religion, closed down mosques which were deemed to have a ``bad 
influence'' on young people, and subjected the Islamic clergy to 
intensive scrutiny and ``political education.'' Such ``political 
education'' campaigns, which are reminiscent of those held during the 
Cultural Revolution, aim both to force participants to follow closely 
the party's dictates and to identify potential opponents and 
dissenters.
    The search for dissenters through the same type of campaign was 
extended in early 2002 to other sectors of society in the XUAR, 
including cultural and media circles. Official sources made clear that 
the ``struggle against separatism'' is wide-ranging and encompasses 
repressing all potential dissent and opposition activities, including 
the peaceful expression of views via poems, songs, books, pamphlets, 
letters, or the Internet.
    Reports on various aspects of this crackdown are cited below. Some 
of the official reports mention arrests, including the arrest of people 
accused of ``terrorist'' activities. However, they give no supporting 
evidence of such activities. In fact, hardly any ``terrorist'' acts are 
reported to have been perpetrated in the XUAR for the past several 
years. According to a Chinese government report published on 21 January 
2002, which lists ``terrorist'' incidents in the region over the past 
10 years, the most recent explosion allegedly carried out by a 
``terrorist'' group took place in April 1998 in Yecheng and the only 
other recent incident of violence imputed to ``terrorists'' since 1999 
is the murder of one court official in Kashgar prefecture in February 
2001.
    In December 2001, the XUAR Party leader, Wang Lequan, was also 
reported to have said that, ``due to effective preventive measures,'' 
there had been no ``terrorist activities'' in the region since the war 
in Afghanistan started after 11 September. He was referring 
specifically to six types of ``terrorist activities,'' including some 
which few countries would recognize as terrorist activities, such as 
``the staging of riots'' and ``the perpetration of beating, smashing 
and looting.'' The latter is an expression used in China during the 
Cultural Revolution, which in the current Criminal Law refers to 
offenses committed during rioting .
    One example of such ``terrorist activities'' is given in the 
government's report cited above. Among the incidents it claims to have 
been perpetrated by ``terrorist organizations'' is extensive ethnic 
unrest in the city of Gulja (Yining) in February 1997. The unrest 
started with a peaceful demonstration by Uighurs, which was brutally 
suppressed by the security forces and followed by sporadic rioting and 
violence over 2 days. The government's report gives a simplistic and 
distorted picture of the unrest--which it calls an ``incident.'' It 
omits for example to mention the extreme brutality used by the security 
forces against both protesters and residents, and describes the 
protesters as ``terrorists.''
    This confirms Amnesty International's concerns, expressed earlier 
about legislation, concerning the very loose and broad definition given 
to ``terrorism'' by the authorities in China.
         estimates of arrests in the xuar since september 2001
    Due to the strict control exercised by the authorities over all 
politically ``sensitive'' information and the lack of access to the 
XUAR for independent human rights monitors, it is difficult to estimate 
with accuracy the number of people detained, arrested or sentenced at 
any one time in the region. However, on the basis of the reports it has 
monitored, Amnesty International believes that the number of people 
detained for investigation on political grounds over the past 6 months 
is likely to be in the thousands, with at least scores charged or 
sentenced under the Criminal Law--most of them Uighurs. There is as yet 
very little information on people who may have received administrative 
sentences involving detention in ``re-education through labour'' camps.
    The reports available from official sources give an incomplete 
picture of the extent of repression. They refer only to a few cities 
and areas of the XUAR. In addition, official reports of arrests usually 
refer to people under formal ``arrest'' (charged) and rarely account 
for the much larger number of people detained for interrogation, who 
may be held for long periods without charge. Neither do they usually 
account for those who receive ``sentences'' of ``re-education through 
labour,'' an administrative punishment imposed without charge or trial 
which involves up to 3 years' detention in a labour camp. Official 
media reports also give a patchy picture of political trials and 
sentences. The official media hardly ever reports on trials in the XUAR 
and publishes only selected reports of the ``public sentencing rallies 
or meetings'' which are held to announce verdicts and sentences.
    Uighur exile sources estimate that at least 3000 people were 
detained in the political crackdown in the XUAR from mid-September 2001 
until the end of 2001. They have also reported that during the same 
period at least 20 people tried on politically driven charges were 
sentenced to death and executed, and many more sentenced to prison 
terms.
                               conclusion
    Lack of genuine ``rule of law'' plays a major role in the human 
rights abuses occurring in China. The vague and contradictory 
provisions of the law lead consistently to its arbitrary use and 
provide wide scope for abuse of power, affecting a very large number of 
people in the country. In addition, the law is manipulated by the 
authorities as a tool to imprison political opponents, to silence 
government critics, to harass and intimidate independent religious 
groups, and to suppress fundamental freedoms among ethnic minorities. 
Even though the Chinese authorities have taken some steps to reform the 
law, this has had no significant impact for the overall protection of 
human rights in the country.
    Serious human rights violations are currently being perpetrated 
against a broad range of groups, including religious and spiritual 
groups, in particular members of the Falun Gong spiritual movement. 
Extensive abuses are also occurring in the context of the Chinese 
government's current campaign against ``separatist, terrorist and 
religious extremist forces'' in the Xinjiang Uighur Autonomous Region. 
These include violations of a broad range of civil, political, social 
and cultural rights. Amnesty International is particularly concerned at 
reports indicating that thousands of people may have been arbitrarily 
detained during this crackdown in the region and some sentenced to 
death and executed after summary trials. It is also concerned that 
serious abuses, such as prolonged incommunicado detention, torture, 
denial of access to lawyer and other rights associated with fair trial, 
are likely to have increased in the crackdown.
                            recommendations
Exclude all evidence extracted through torture from all proceedings, 
        Criminal or Administrative
       Revise the Criminal Procedure Law and other relevant 
laws and regulations to introduce clear and unambiguous exclusion of 
all evidence obtained through torture.
       Institute for all suspects all necessary guarantees of 
the presumption of innocence, including the right to avoid self-
incrimination and the right to silence.
End Arbitrary or incommunicado detention
       Abolish all forms of Administrative detention which are 
imposed without charge, trial or judicial review. Introduce procedures 
to ensure that all detainees are brought before a judicial authority 
promptly after being taken into custody and regularly thereafter.
       Ensure that this judicial authority can effectively 
continue to supervise the legality of the detention and conditions of 
detentions.
       Effectively outlaw the misuse of ``supervised 
residence'' for detention outside recognized places of custody.
       Enable detainees, their relatives and legal 
representatives to challenge the legality of all aspects of detention, 
not just on the basis that it has exceeded legal time limits.
       Enhance and protect public scrutiny and accountability 
of official organs holding the power to detain citizens.
Ensure detainees effective rights of access to lawyers and family
       Guarantee all detainees, as a matter of right and from 
the outset of any form of detention by the state, and regularly 
thereafter, access to legal representatives, relatives and doctors of 
detainees' choice.
       Access should include the right for the detainee to have 
a lawyer present during interrogation.
       End current exclusions to access in cases such as 
``state secrets cases'' and ``where it would hinder investigations.''
       End arbitrary limits in practice to the number and 
duration of meetings between detainees and their lawyers.
Anti-terrorism provisions
            Review the provisions on terrorist crimes in the Criminal 
                    Law with a view to
       Removing the death penalty from the punishments they 
provide.
       Ensuring that these provisions do not criminalize 
activities which amount to no more than the peaceful exercise of 
fundamental human rights.
       Ensuring in addition that the offenses listed in these 
provisions are clearly defined in unambiguous language.
       Ensure that any future legislation related to ``counter-
terrorism measures'' conforms to international human rights standards.
            End torture
       Revise the Criminal Law, Criminal Procedure Law and 
review prosecution policy to ensure that all acts which constitute 
torture as defined in Article 1 of the Convention against torture are 
fully and effectively outlawed. Prosecution should not be limited to 
cases resulting in death or serious physical injury. Attempts to commit 
torture, and acts constituting complicity or participation in torture 
committed by anyone acting in an official capacity should also be 
punished.
    Demand the release of Rebiya Kadeer, who was arrested for trying to 
meet with Congressional Research Service (CRS) staff and Congressional 
staff.
    Thank you for inviting Amnesty International for this important 
hearing.
                                 ______
                                 

   Prepared Statement of Hon. Max Baucus, U.S. Senator From Montana, 
         Chairman, Congressional-Executive Commission on China

                             april 11, 2002
    I would like to welcome all of you to the second hearing of the 
Congressional-Executive Commission on China. Today, we will continue to 
pursue the relationship between rule of law and protection of human 
rights in China. At our next hearing in June, we will look at 
commercial rule of law and the WTO.
    In the Commission's work, I start from one fundamental assumption--
that a modern, industrialized Nation must have a legal system that is 
clear, fair, consistent, impartial and independent. There can be no 
room for arbitrary decisions. The police and the courts must be held 
accountable for their actions. The law must determine when rights are 
granted, and when rights may be taken away, not the arbitrary whims of 
administrative officials. This is necessary in commercial law for 
routine business to proceed, and it is no less necessary in civil and 
criminal law.
    China is a conundrum. Thirty years ago, Mao Zedong was supreme 
leader of a totalitarian Marxist-Leninist system. Today, after two 
decades of reform, the portrait of Mao that hangs from Tiananmen Gate 
overlooks a vastly different China. On the streets of Beijing, Shanghai 
and other cities, one would be hard pressed to find any real evidence 
of Marx or Lenin.
    Power in China has become much more diffuse. It is wielded by an 
ever-increasing number of officials and bureaucrats within the 
Communist Party and the central government, as well as officials at the 
provincial and city level. A significant part of the economy is now 
based on market principles. State-owned enterprises are disappearing 
rapidly. Some journalists challenge government-imposed restrictions on 
press freedom. The practice of religion is spreading rapidly. Legal 
clinics teach ordinary citizens about some of their rights, albeit 
within strict boundaries.
    Nevertheless, despite these changes, Xiao Qiang, head of the NGO 
Human Rights in China, reminded us at an earlier hearing that the 
Chinese government has become a system of rule by law rather than rule 
of law. And that two-letter preposition, rule by law versus rule of 
law, makes all the difference. Under rule by law, authorities 
manipulate the law to achieve their own ends. Laws are often used as a 
means of subjugation or repression. With rule of law, the law itself is 
the final word. Human rights can only be protected within a system of 
laws. Anything else is simply arbitrary.
    The Commission is beginning to work on its first annual report 
which is due in October. The report will include recommendations about 
how we can help China respect rule of law--a necessary step in China's 
march to join the community of nations. These hearings, along with the 
detailed roundtables being held by the staff, will provide significant 
input into that report.
    Let me list several questions that I hope we can address today. We 
have a distinguished panel of witnesses to help us do that.

    --How does the criminal justice process work in China? How can we 
help improve it?
    --What is the current status of lawyers in China? To what degree 
can they challenge police and prosecutors and defend clients without 
fear of punishment or retribution? How can we help improve the 
situation for lawyers in China?
    --Is China a more rules-based system than in the past? What are the 
recent trends?
    --Can one differentiate between a rules-based commercial law system 
and a rules-based civil and criminal law system?
                                 ______
                                 

  Prepared Statement of Hon. Doug Bereuter, U.S. Representative From 
   Nebraska, Co-Chairman, Congressional-Executive Commission on China

                             april 11, 2002
    This second formal hearing continues the Commission's exploration 
of the relationship between the current Chinese legal system and 
China's evident difficulty in meeting internationally recognized human 
rights norms. One practical example of this relationship is the limited 
ability of Chinese individuals to have access to the judicial system to 
vindicate the basic rights granted to them by China's own constitution. 
The good news is that the Chinese legal regime has some legal 
mechanisms through which Chinese citizens can challenge and check the 
arbitrary exercise of power by government officials. The bad news is 
there aren't enough such mechanisms: for example, no practical recourse 
exists through the courts for a prisoner or his family to challenge a 
detention that exceeds existing time limits. Unfortunately, there are 
other examples as well.
    I agree with the Senator that our starting premise should be that 
China must develop a modern legal system if it wishes to achieve its 
ambitions to become a developed country and to assume an equal place 
among nations in the international system. China's aspirations as a 
nation--to economic, social, and cultural development at home and to 
regional and international influence abroad--seem to me to be much more 
difficult to achieve without a legal system with modern 
characteristics. I think there is basic agreement about what such 
characteristics are: openness, transparency, notice and opportunity to 
be heard, choice of legal counsel, public proceedings, and an 
independent professional judiciary, to name a few.
    Again, there is some reason for optimism: legal reform has been on 
the Chinese government's agenda for a number of years, and many of the 
new laws that have been enacted are improvements over those they 
replaced. But much remains to be done, and I believe it is because of 
that need that the United States can help make a difference as China 
modernizes its legal infrastructure.
    Thus, we again explore the thematic subject matter of the first 
hearing, looking at human rights in the context of legal reform in 
China.
    Our witnesses today bring strong personal and institutional 
backgrounds in human rights, political prisoners in China, and in rule 
of law programs in China. John Kamm's work on political prisoners 
reminds all of us that a person with energy, personal commitment, and 
knowledge about the language and culture of another country can truly 
make a difference. The Lawyers Committee for Human Rights and Amnesty 
International represent the type of nongovernmental organizations that 
have been at the forefront of human rights advocacy, while stressing 
the importance of the rule of law. And the China Law Center at Yale 
University represents the academic world, in which scholars and program 
directors at a number of U.S. universities and institutes have reached 
out since the late 1970's to build cooperative programs with Chinese 
counterparts. A significant portion of the legal reform we are seeing 
in China today can be traced to roots in these programs.
    I look forward to hearing from these distinguished witnesses, and 
to a spirited and insightful question and answer session after their 
formal statements.
                                 ______
                                 

 Prepared Statement of Hon. Marcy Kaptur, U.S. Representative From Ohio

                             april 11, 2002
    Thank you, Senator Baucus and Congressman Bereuter, and thank you 
to each of our witnesses. We appreciate your dedication to this issue 
and your participation today.
    Our Commission was charged with two main responsibilities: to study 
the human rights situation in China and the rule of law procedures as 
well. As we focus on rule of law today, our spotlight should be broad. 
We must consider the legal system from the ground up, including: legal 
education training, legislative development, law enforcement training, 
access to legal assistance, and a fair and open judiciary. This will be 
crucial to the development of a working rule of law.
    Chinese citizens must know that the law is in place to punish 
violators, but also to protect citizens from abuse. The law should not 
be something that the Chinese should fear. Instead, it must be a 
vehicle for labor, environmental, and human rights enforcement. I hope 
that someday soon the citizens of China will be able to trust the 
lawmakers, enforcement officials, and the judicial appointees as 
guardians of the people.
    By now, the Chinese people know the difference between ``rule of 
law'' and ``rule by law.'' Today, all too often, law is used as a 
weapon. Alleged ``enemies of the state'' are imprisoned for violating 
internationally recognized rights, such as freedom of speech and the 
freedom to organize.
    The increase in the number of people studying law in China is 
encouraging. My only concern is limits and registration requirements 
placed on practicing attorneys and law school professors. Access and 
government support should not vary by region--every citizen must have 
equal protection under the law.
    In order for China to interact with other nations, whether through 
trade or diplomatic means, a functioning and just system for the rule 
of law is necessary, both in their domestic and international 
relations. Businesses and foreign governments must be able to rely on a 
sound legal framework protecting worker, investor, and employer rights. 
Recent media reports show that even large, multinational corporations 
like, FedEx, UPS, and DHL have to initiate negotiations to gain even 
the slightest portion of the marketplace. An active member of the 
global economy must be ready to ``play by the rules.'' This will offer 
China many challenges.
    I look forward to a future for China that will allow freedom to 
flourish and will adopt a system of laws that will bring liberty to 
every citizen.

                       Submissions for the Record

                              ----------                              

 Prepared Statement of Michael Posner, the Lawyers Committee for Human 
                                 Rights

                             april 11, 2002
    The Lawyers Committee is an independent non-governmental human 
rights organization. We aim to hold governments accountable to the 
international standards of human rights, and work to develop stronger 
models of corporate accountability in the global market place.
    Human rights conditions in China continue to be an issue of deep 
concern. We appreciate the opportunity to bring some of the most 
alarming issues to the attention of your Commission.
    Over the past year, China has secured a prominent position in the 
international arena, symbolized by its admission to the WTO, its 
successful bid to host the 2008 Olympics and the recent visit of 
President Bush. However, China's new stature has not been accompanied 
by a parallel improvement in its domestic human rights conditions. 
Instead, official statements about upholding ``the rule of law'' have 
frequently veiled harsh political repression. This is most poignantly 
illustrated by the ``Strike Hard'' campaign against crime, which 
resulted in scores of executions after procedural and substantive 
abuses of criminal law. Moreover, in the aftermath of the September 
11th attacks in the United States, the Chinese government has misused 
anti-terrorist rhetoric to legitimize harsh crack-downs in Tibet and 
Xinjiang province, as well as illegitimate censorship of all forms of 
media, including the Internet.
    An abundance of NGO-reports, as well as the annual evaluations of 
China's human rights practices by the State Department's Bureau of 
Democracy, Human Rights and Labor, narrate these and other violations 
of the most fundamental human rights. They describe crackdowns on 
dissidents, arbitrary arrests and detentions of suspects, torture, 
forced prison labor, and abusive labor conditions. Freedom of religion 
continues to be seriously curtailed,\1\ freedom of expression continues 
to be curtailed,\2\ and voices that endeavor to draw attention to 
pressing issues of national and global concern are frequently silenced 
with violence.\3\
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    \1\  For instance, the New York Times reported on March 26, 2002 
that Roman Catholic Bishop Julius Jia Zhiguo (67) was arrested in Hebei 
Province, central China. His whereabouts are unknown. The Bishop 
previously spent approximately 20 years in jail or labor camps for his 
loyalty to the Vatican and was often kept under house arrest. Another 
obvious example relates to the continued suppression of the Falun Gong 
sect. Since the sect was banned in 1999, tens of thousands of 
practitioners have been arrested, imprisoned without trial, and forced 
to undergo ``re-education through labor.'' Falun Gong claims that more 
than 1,600 followers have died in police custody or detention centers. 
The crack down continues, most recently with arrests and deportation of 
foreign followers. See, e.g., BBC world service, March 7, 10 and 15, at 
http://news.bbc.co.uk/hi/english/world/asia-pacific/default.stm.
    \2\ For example, the Ministry of Propaganda prohibiting recently 
prohibited the Guangzhou based liberal newspaper Southern Weekend to 
publish a lengthy report on corruption at one of China's biggest 
charities, Project Hope. The charity is sponsored by a branch of the 
Communist Youth League, which rejected the accusations of corruption as 
``a terrorist attack on the China Youth Development Foundation by 
vicious criminals.'' NYT, March 23, 2002, available at http://
www.nytimes.com/.
    \3\ For example, the NGO Human Rights in China reports the recent 
arrest and detention, on January 24, 2002, of Wang Daqi, Professor of 
Construction of Hefei Industrial University and editor of Ecology 
magazine. Since the 1989 Beijing crackdown, Professor Wang had 
published articles about social and human rights issues. The Chinese 
authorities previously attempted to prevent Prof. Wang from publishing 
these articles. At http://iso.hrichina.org:8151/iso/news--
item.adp?news--id=691.
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    The Lawyers Committee has welcomed positive developments in the 
Chinese legal system over the past few decades. Provisions in newly 
enacted legislation often allude to improved protection of fundamental 
social and human rights norms. However, ongoing violations illustrate 
that a strong legislative framework cannot by itself secure the rule of 
law. China needs to build a strong, independent legal profession to 
support the legal system, and to enable its citizens to enforce their 
legal rights. Without actual opportunities and mechanisms for 
enforcement, the rule of law remains a paper tiger.
    In this submission, the Lawyers Committee will focus on two 
persistent problems that it considers to be key to the failing rule of 
law in China. The first relates to China's failure to respect the 
people's freedom to organize and voice injustices. This problem is 
dramatically highlighted by China's repressive response to the recent 
massive workers demonstrations in northeast China. The second is the 
ongoing persecution of legal practitioners in China.
            the right to organize and freedom of expression
Workers demonstrations in the northeastern provinces
    Over the past few years, spurred by China's accession to the WTO, 
the Chinese market has opened to foreign investment. Increased 
competition forced China's state-owned enterprises to slim down and 
unemployment figures are staggering. Millions of workers have lost 
their jobs.\4\ As China lacks a social safety net, many of these people 
face desperate poverty.\5\
---------------------------------------------------------------------------
    \4\ The World Bank reports that in many northeastern cities, 
unemployment is as high as 40 percent. China's Economy Minister Li 
Rongrong said in Beijing on last March 8, that 25 million workers have 
lost their jobs since 1998. See Far Eastern Economic Review, April 4, 
2002, at http://www.feer.com/articles/2002/0204--04/p032china.html
    \5\ A March 19, 2002 New York Times article tells about a man in 
Liaoyang who was dismissed from a chemical plant last year with a 
payment of just $970 after 20 years of service. His wife was also 
placed on unpaid ``long-term vacation'' by her factory. Their 18-year-
old son has been unable to find a job since he graduated from junior 
high school 2 years ago. The family is unable to live of the meager 
monthly welfare check of a $27.
---------------------------------------------------------------------------
    Since the beginning of March, these conditions drove tens of 
thousands of laid-off workers to the streets, most notably in the 
cities of Daqing in Heilongjiang province, and Liaoyang and Fushun in 
Liaoning province. The protesting workers are asking for payment of 
overdue wages and pensions and are protesting against financial 
mismanagement.\6\
---------------------------------------------------------------------------
    \6\ Factories are often responsible for providing pensions for 
their retired workers and unemployment benefits to workers that were 
made redundant.
---------------------------------------------------------------------------
    The Chinese authorities tried to suppress the demonstrations with a 
paltry carrot, promising meager payments of the wages due, and a 
crushing stick. Four of the workers' leaders were arrested in 
Liaoyang\7\ and the police conveyed the message that those arrested 
would be ``harshly'' handled if the protests were to continue. There 
are alarming indications that one of these detainees was seriously 
mistreated.\8\ While the demonstrations are widely covered in the 
international press, the local and national media were prohibited from 
reporting the events. Heavily armed forces were reportedly sent into 
Daquin to intimidate the demonstrators.\9\
---------------------------------------------------------------------------
    \7\ The names of the arrested leaders are Xiao Yunliang, Pang 
Qingxiang, Wang Zhaoming and Yao Fuxin.
    \8\ Yao Fuxin reportedly contacted his wife from prison to convey 
the message that the arrestees would be treated harshly if the 
demonstrations were to continue. This message effectively discouraged 
the protesters in Liaoyang. According to most recent reports, the 
police informed his relatives that Mr. Yao was hospitalized for high 
blood pressure and a heart condition. His family has not seen or heard 
from him since, and recount that Mr. Yao has no known history of such 
ailments, and was in good health at the time of his arrest. See New 
York Times, 19, 26 and 30 March , 2002, available at www.nyt.com.
    \9\ Far Eastern Economic Review, Ibid, footnote 3.
---------------------------------------------------------------------------
    Chinese officials apparently claimed that the protests are being 
pushed by ``foreign black hands.'' The Liaoyang's state-run television 
station accused the protest leaders of colluding with hostile foreign 
forces. Local authorities were reportedly ordered to prevent the 
protesting workers from liaising with foreign labor groups and 
demonstrators in other provinces.\10\
---------------------------------------------------------------------------
    \10\ South China Morning Post, 30 March 2002, at http://
iso.hrichina.org:8151/iso/news--item.adp?news--id=728. This report 
includes a quote by political analyst Li Fan, who noted that Chinese 
leadership has not ruled out ``high-handed measures to stem potential 
cross-provincial workers' movements.''
---------------------------------------------------------------------------
    The Lawyers Committee recognizes the challenges posed by the 
mounting unemployment in China.\11\ However, these challenges cannot 
justify China's failure to respect its citizens' legitimate efforts to 
enforce their legal rights. These recent developments demonstrate that 
the Chinese people continue to lack a space to organize and voice 
injustices.
---------------------------------------------------------------------------
    \11\ The Lawyers Committee commends the Memorandum of Understanding 
(MOU) of 17 May 2001, between the ILO's International Labour Office and 
China's Ministry of Labour and Social Security, which provides, inter 
alia, for a cooperative effort to address issues of unemployment and 
the promotion of fundamental workers rights. The MOU is available at 
http://www.ilo.org/public/english/chinaforum/download/chinamou.pdf. See 
also infra note 24.
---------------------------------------------------------------------------
China's new Trade Union Law
    In October, 2001, the National People's Congress adopted some 
significant revisions to its 1992 Trade Union Law (TUL).\12\ Chinese 
officials have presented the amendments as a move toward compliance 
with the ILO Conventions and international standards pertaining to the 
rights to organize and bargain collectively. The new TUL stipulates 
that workers have the rights to organize and join trade unions 
``according to law,'' and to democratically elect their 
representatives.\13\ The law is also applicable to foreign and private 
companies.
---------------------------------------------------------------------------
    \12\ Trade Union Law of the People's Republic of China, promulgated 
on April 3, 1992, as amended on 17 October 2001. A critical discussion 
of the law is by the China Labour Bulletin, at http://iso.china-
labour.org.hk/iso/article.adp?article--id=1976&category--name=Labour 
percent20Laws
    \13\ Article 3 and 9 of the TUL, supra note 12.
---------------------------------------------------------------------------
    However, the All-China Federation of Trade Unions (ACFTU) continues 
to be the only legal workers' organization in China. The ACFTU is 
controlled by the Communist Party, and headed by a party official. The 
TUL does not recognize the right to organize autonomous trade unions. 
Moreover, it fails to recognize the right to strike.\14\
---------------------------------------------------------------------------
    \14\ The TUL confirms the stance that China took in February of 
last year, when it ratified the International Covenant on Economic, 
Social, and Cultural Rights with the reservation that it would apply 
the provision for freedom of association ``in accordance with the 
country's actual conditions.'' This factually meant a continuation of 
the legal prohibition on independent unions. It be noted in this 
respect that as a party to the ILO's Declaration on Fundamental 
Principles and Rights at Work (1998), China should be deemed to have 
agreed to respect and ensure workers' right to freedom of association 
and the effective right of collective bargaining. Moreover, in October 
1998, China signed the International Covenant on Civil and Political 
Rights, which in article 8 guarantees the right to freedom of 
association and freedom to form trade unions. Although China has yet to 
ratify this convention, its signature can be taken as to signify its 
intention to be bound by its provision.
---------------------------------------------------------------------------
    The Lawyers Committee is deeply concerned about China's continued 
rejection of independent union activity. Freedom of expression, and 
freedom to organize and associate are fundamental human rights and 
their protection is essential to ensure the rule of law.
                         persecution of lawyers
    In this submission, the Lawyers Committee also wishes to highlight 
its concern about the continuing persecution, threats and harassment 
directed against lawyers who try to confront common injustices. In 1998 
the Lawyers Committee addressed this and related issues in a report on 
Lawyers in China: Obstacles to Independence and the Defense of 
Rights.\15\ Unfortunately, many of the problems described in that 
report continue to be matters of concern.
---------------------------------------------------------------------------
    \15\ Lawyers in China: Obstacles to Independence and the Defense of 
Rights, Lawyers Committee for Human Rights, New York, 1998. Copies of 
this report are available upon request.
---------------------------------------------------------------------------
    The report includes an analysis of the 1996 Lawyers Law, which, in 
general terms, regulates the legal profession.\16\ The Lawyers Law was 
inspired by, yet does not wholly encompass, the U.N. Basic Principles 
on the Role of Lawyers (1990).\17\ Nevertheless, the Law and the Basic 
Principles share the intention to protect lawyers from physical or 
other forms of abuse, and from interference when carrying out their 
responsibilities in accordance with the law.\18\ However, despite this 
strong legal framework, there are recurring reports of intimidation and 
threats targeted at legal practitioners. The case of Zhou Litai 
illustrates this problem.
---------------------------------------------------------------------------
    \16\ Lawyers Law of the People's Republic of China, adopted May 15, 
1996, effective January 1, 1997. The Lawyers Law is available online at 
http://www.qis.net/chinalaw/prclaw10.htm
    \17\ Adopted by the Eighth United Nations Congress on the 
Prevention of Crime and Treatment of Offenders, held in Havana, Cuba, 
August-September 1990. The Basic Principles enshrine the rights and 
responsibilities of lawyers around the world, and also lay out states' 
obligations to ensure effective and equal access to lawyers for their 
residents.
    \18\ Article 3 of the Lawyers Law, supra note 14, declares that 
lawful legal practice shall be protected by the law. Article 32 
provides that the personal rights of a lawyer will be inviolable in the 
course of his or her legal practice. The Basic Principles, supra note 
15, are more detailed, yet provide essentially similar protection in 
artt. 16-22.
---------------------------------------------------------------------------
                               zhou litai
    Since 1996, Zhou Litai has defended the rights of workers in the 
Shenzhen area. In a series of high-profile cases brought against local 
government authorities, foreign investors and company owners, he 
represented more than 800 factory workers in labor disputes and 
struggles for compensation for grave work injuries. Many of his cases 
involved legal action against the Labor Bureau or the social security 
department. In August last year, he represented 56 women workers in a 
South Korean-owned wig factory in Shenzhen, who had been subjected to 
illegal body searches. Mr. Zhou achieved a successful out-of-court 
settlement of this case.
    On December 19, 2001 the Longgang District Bureau of Justice in 
Shenzhen ordered Mr. Zhou to close his legal practice.\19\ The order 
came unexpectedly and seems to contravene both international law and 
domestic regulations.\20\ It appears that the authorities wrongfully 
issued the order to end the negative attention that Mr. Zhou's 
successful litigation practice has drawn to the Shenzhen region. As 
noted above, both international human rights standards and the Chinese 
Lawyers Law expressly protect lawyers from ungrounded interference and 
intimidation.\21\ Mr. Zhou Litai has filed suit against the District 
Bureau of Justice with the Longgang District People's Court, to contest 
the legitimacy of the order.\22\
---------------------------------------------------------------------------
    \19\ This matter was also covered in a New York Times article on 
January 3, 2002, which can be found online at http://
college4.nytimes.com/guests/articles/2002/01/03/894481.xml.
    \20\ The Lawyers Law, supra note 14, states in Article 12 that 
``legal practice shall not be subject to geographical limitation.'' 
This means that a lawyer licensed in one region of China may practice 
in another without obstruction from the local authorities. Mr. Zhou is 
in the possession of a Chongqing license and is thus entitled to 
practice anywhere in China.
    \21\ See supra note 16.
    \22\ The Shenzhen local bureau of justice has previously attempted 
to confiscate Mr. Zhou's license, shortly after he started his practice 
in 1997. At that time, the bureau returned the license to Mr. Zhou 
after he initiated legal proceedings. China Information Center on 
January 16, 2002: http://www.china.org.cn/english/2002/Jan/25353.htm
---------------------------------------------------------------------------
    Unfortunately, Mr. Zhou's case is not exceptional. It exemplifies 
the intimidation that many legal practitioners who call for social 
reform commonly face.\23\ The Lawyers Committee considers this to be an 
issue of grave concern. Mr. Zhou's account and achievements illustrate 
a commendable development in which Chinese people are increasingly 
turning to the legal system for protection. This is valuable progress 
that needs to be fostered, not suppressed.
---------------------------------------------------------------------------
    \23\ This is confirmed, for instance, in the research paper Empty 
promises: human rights protections and China's criminal procedure law 
in practice by the NGO Human Rights in China, which states: ``Mounting 
official hostility toward lawyers have also greatly increased the risk 
of representing criminal defendants. Lawyers who undertake such work 
are often harassed and intimidated, and sometimes detained or even 
convicted of crimes, merely for actively defending the interests of 
their clients. Lawyers have consequently been reluctant to work in 
criminal defense, which has led to a disturbing decline in the number 
of criminal cases where defendants are represented by counsel.'' The 
paper is available online at http://iso.hrichina.org:8151/download--
repository/A/cpl percent2001.doc. The graveness of such intimidation is 
illustrated, for instance, by the case of Xu Jian, a labor lawyer who 
was sentenced to 4 years imprisonment on July 18, 1999. The charges, 
``incitement to overthrow State power,'' are based on his activities as 
a labor rights lawyer, including efforts to educate workers about their 
legal rights.
---------------------------------------------------------------------------
    As China works toward the rule of law, it is critical that it 
continues to develop and strengthen its legal system. However, it 
should be recognized that this system is only as strong as the 
professionals who work to uphold it. In this understanding, it is 
essential that China builds and protects a force of independent legal 
practitioners who can vigorously use the legal system to confront 
injustices.
                            recommendations
    Most notably with its accession to the WTO, China has successfully 
secured a profitable place in the economic world order. However, it 
continues to refute the most fundamental human rights principles on 
which this global economic order should be build. This submission 
highlights only a few of China's failings in this respect.
    Your Commission was established with the responsibility of placing 
an ongoing and focused spotlight on China's human rights practices. In 
this respect, the Lawyers Committee urges the Commission to maintain a 
strong and critical stance.
    In addition, the Lawyers Committee proposes the following 
recommendations to aid your efforts to promote the rule of law in 
China.

    1. Your Commission can and should use its authority to ensure that 
human rights issues maintain at the forefront on the U.S. trade agenda, 
and play an central role in the design of the bilateral Sino-US trade-
relations.
    2. It is important that the Chinese government continues to be 
pressured to respect fundamental human rights, in particular the right 
to organize and to freedom of expression. Curtailments of these rights, 
in particular China's suppression to the workers demonstrations in its 
northeastern provinces, should be strongly condemned.
    3. The U.S. should contribute and support with all appropriate 
means the objectives outlined in the Memorandum of Understanding, 
between the ILO's International Labour Office and China's Ministry of 
Labour and Social Security of the People's Republic of China.\24\
---------------------------------------------------------------------------
    \24\ See supra note 11. These objectives provide for measures and 
assistance for (1) the promotion of international labor standards and 
the Declaration on Fundamental Principles and Rights at Work, (2) 
issues of unemployment and the reform of China's labor market, (3) the 
development of a system for social securities, and (4) the promotion of 
social dialog, including social bargaining.
---------------------------------------------------------------------------
    4. The Lawyers Committee believes that it is important to recognize 
the educative, guiding role that can be played by foreign governments, 
human rights groups, law schools, bar associations and other 
international actors in the development of law in China. Underlining 
the position of China as a prominent member of the international 
community, efforts should be made to ensure the continued involvement 
of these foreign actors.
    5. In the absence of a legal right to create independent trade 
unions, the U.S. Government should encourage, engage and assist 
multinational companies to develop mechanisms, at a factory or company 
level, that grant workers the space and opportunity to organize and 
bargain collectively.
    6. It is important that the Chinese government continues to be 
pressured and assisted, with all suitable means, to fully comply with 
the provisions of the U.N. Basic Principles on the Role of Lawyers, and 
to revise those aspects of Chinese law that restrict the ability of 
lawyers to freely represent their clients and to organize independent 
bar associations.
    7. In this line, the Chinese government should ensure that legal 
provisions of the Lawyers Law are properly enforced, to ensure that 
lawyers can freely carry out their professional duties without official 
interference, restrictions, threats or intimidation. Bar associations 
and the Chinese Ministry of Justice should be engaged to create 
mechanisms to ensure the adequate protection of legal practitioners.
    8. Particular assistance should be provided to the training of 
lawyers, both in China and abroad. Training programs should be designed 
to fit with China's particular conditions and needs. The exchange and 
sharing of relevant information should be stimulated. Assistance should 
also be provided to China's law schools for the design of courses and 
teaching methods.
    9. At the same time, to promote high professional standards, these 
institutions should be encouraged to publicize and facilitate the 
rights of clients to bring malpractice suits, in the belief that this 
will encourage lawyers to seriously consider their professional 
responsibilities.
    10. Assistance should be provided in the creation of a legal aid 
system, by providing know-how and financial support where appropriate.
    11. Assistance should be provided to provide training to sensitize 
the relevant branches of government to the importance of the 
independent role of the lawyer within the legal system.

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